The Publication Right is granted to the first person who ‘publishes’ a previously unpublished work after its copyright has expired.
‘Publication’ in this context can include issuing copies to the public, performing the work in public, and the exhibition or showing of a work in public. Publication right could, for example, be acquired by a museum that displays a borrowed work to the public for the first time.
This may present a danger to collection holders loaning out-of-copyright works for display elsewhere, or sending works for reproduction by third parties. To make sure the publication rights are not inadvertently given away, the following steps may be taken:
- Agree a waiver. When reproduction rights are granted or a loan agreement made, a clause can be added to make it clear that the recipient waives any claims to the publication right.
- Record copyright expiry dates. Having established these, you will know when further precautions (eg a waiver) are needed before a third party uses or publishes your item.
- The museum should ensure that, by visiting the galleries or a research room, members of the public do not inadvertently gain the right to reproduce images of objects they have been allowed to photograph. This could be done through the signing of some kind of terms and conditions or by preventing any photographs from being made.
Clicking the first link on this page will open the GOV.UK website where you can read more about the Publication Right from the UK Intellectual Property Office.
Collections may include both items that are ‘in copyright’ and those where rights have expired. When works are out-of-copyright however, they can still be controlled through reproduction rights.
This works because a photograph of an item is legally categorised as an ‘Artistic Work’ and therefore protected by copyright legislation. Thus, where copyright may no longer exist in the work itself, (e.g. with items within an archaeological collection), rights will exist in the photographs of the items. These particular photographs cannot then be used without permission and the owners are able make a charge for this.
If you wish to reproduce an image of an item belonging to a third party (e.g.someone else’s photograph of a painting they do not own) you need to be aware that copyright may exist in the work, as well as existing in the photograph of the work and you would need permission from the rights holders for both.
Who represents Rightsholders?
As well as representing themselves, many rights holders are represented by agencies. These administer the financial concerns of the creators and any other rights holders. In the UK DACS (Design and Artists Copyright Society), collects fees for many UK rights holders in artistic works. DACS has reciprocal arrangements with other UK and international rights societies.
DACS charges fees for the service but discounts can be negotiated for cultural organisations wanting to make non-commercial use of reproductions. The discount, which should be discussed prior to any licence agreement, will take into account the size of an organisation’s budget and the quantity of copies to be made.
Agencies exist for most other types of creative works, including music and text. Some are responsible for collecting fees. For more information on these and other relevant organisations, please refer to Weinand et al., A Guide to Copyright for Museums and Galleries, as well as the website of the International Federation of Reproduction Rights Organisations.
With the increase in the digitisation of collections and their subsequent display on the Internet, many agencies are working towards blanket licensing schemes. This could take the form of, for example, an annual one-off fee for multiple reproductions. Although this development is in its infancy, there is clear scope for its expansion.
2014 Copyright Exceptions
As of 1 June 2014 a set of new exceptions to copyright came into force under UK law designed to enable specific cultural heritage activities, including:
- Copying to support research and private study
- Text and data-mining
- Education and teaching
- Archiving and preservation
- Public administration
- Accessible formats for disabled people
These exceptions are likely to make it significantly easier for cultural heritage institutions to carry out their public task to preserve and share heritage material. It does not, however, represent a blanket indemnification for all cultural activities and the majority of uses are still likely to require explicit permission from copyright holders.
To help cultural heritage institutions understand the scope of the exceptions, the UK Intellectual Property Office has published a free guide ‘Exceptions to Copyright: Libraries, Archives and Museums’.
Clicking the second link on this page will open this guide to view as a PDF in your current browser window.