Free use of copyrighted works and their digitization
Paragraph 2 of Article 24 of the Law of Ukraine “On Copyright and Related Rights” provides for the free use of works by museums with open access to visitors. This article defines:
1) use of quotations, including their translation from other languages, from legally published works, including articles from newspapers and magazines in the form of press reviews, if this is due to the critical, polemical, scientific or informational nature of the work (message) in which the quotations are included, with semantic and/or graphic highlighting of the boundaries of the quotation;
2) reproduction, including in electronic (digital) form, interactive provision of access to lawfully published articles and other small works, as well as excerpts from written works, works of fine arts, photographic works, audiovisual works as illustrations in publications, programs of broadcasting organizations, sound recordings or video recordings for the purpose of ensuring and implementing the educational process or for the purpose of scientific research, if such actions do not have independent economic value, to the extent consistent with the defined purpose, provided that
the scope of such use is consistent with the defined purpose;
the use of works is carried out by subjects of educational or scientific activity in places where these subjects carry out educational or scientific activity, or through a secure electronic (digital) environment, which is accessible exclusively to students and pedagogical, scientific and pedagogical staff of an educational institution or employees of a scientific institution.
Let’s look at a new case of free use in copyright, which concerns museums.
The museum also has the right to reproduce in any format on any medium, which also includes digitization, to restore a damaged or lost work, provided that there is no other option for making this copy in the amount necessary for such preservation. It would also be appropriate to emphasize a new provision in the Law of Ukraine “On Copyright and Related Rights”, namely Interactive Provision of Access.
Interactive provision of access is the distribution of copyright and/or related rights to the public with or without cable, including the Internet and other networks.
Today, we can often find terminals (computers, tablets, electronic devices, etc.) in museums, but only if access to the work is provided only within the specific territory of the museum.
Paragraph 25 of Article 1 of the Law of Ukraine “On Copyright and Related Rights” states that a museum has the right to provide interactive access to a work in electronic/digital form free of charge, without the permission of the author or copyright holders, heirs.
Separation of concepts in a museum collection: work and copyright to a work
The separation of the concepts of a work in a museum collection into a material object and a copyrighted object is primarily important for the protection of the intellectual property of the rights holder and the legal use of works.
A tangible object is a physical object where a work is stored, which can move in space and can be owned by anyone.
The object of copyright is the work itself, to which the author, right holders or heirs have the right, regardless of where the physical object is located.
A museum collection may contain a tangible object of a work that may belong to a museum or a private individual, but the copyright remains the property of the author, copyright holder, or heirs. Therefore, to use such a work from a museum collection, permission is required from the copyright holder, regardless of the ownership of the material object.
Use of works from museum collections for commercial purposes
From the point of view of intellectual property law, a museum is a museum where works (objects) are stored if such works are protected by copyright and property rights have been transferred to the museum on the basis of an agreement with the owner of the rights or received as a result of inheritance.
Museums can manage and dispose of rights by concluding an agreement with other individuals or legal entities that want to use a certain museum exhibit for commercial purposes, receiving official permission from the museum.
However, if a work has entered the public domain under the terms of Article 32 of the Law of Ukraine “On Copyright and Related Rights,” you can freely use the work for commercial purposes without obtaining the consent of the copyright holder.
What rights do employees who have created a work in museum institutions have?
If a work is considered a “work made for hire,” meaning that it was created by the employees themselves within the scope of their employment and is intended to be part of the museum’s collection, then the museum is generally considered to own the copyright in the results of such creativity. In this case, the employees may not have ownership of the work.
According to Article 9(1) of the Law of Ukraine “On Copyright and Related Rights”: Copyright in a work arises as a result of the fact of its creation. Therefore, if a museum employee has created a work, he or she automatically becomes the author of this work. BUT if the official duties or the rights transfer agreement specify the creation of a specific object, which will then be protected by law, then the museum itself, as the employer, will own the rights to such an object.
Who has permission to use images of museum exhibits
First, you need to determine what kind of work (object) it is. If the work belongs to the public domain, no permission is required to use the image, but permission is required from the author or the person who
owns the property rights to the photographic work, if any.
In this case, we have to refer to Ukrainian law, because the copyright for photographic images of museum exhibits belongs to the museum as the owner of the exhibit. If the photographs were taken by a museum employee, the copyright belongs to the museum as an employer.
The possibility of concluding agreements on granting permission to use works with third parties should be within the limits of the rights belonging to the museum and the current copyright law.
If you plan to use photographs of museum exhibits for commercial purposes, you must obtain permission from the museum or the author of the work.
Prospects for the Development of Museums in the Context of Digitalization and Popularization of the Metaverse
The development of digital technologies in museums opens up many prospects and opportunities for the further development of this industry. The Ukrainian museum sector is actively developing thanks to digitalization and the popularization of the metaverse. Thanks to digital technologies, museums are creating their own online resources that are accessible to visitors from all over the world. This makes it possible to offer new formats of exhibitions and tours that use interactive historical scenarios. In addition, digital technology allows for the preservation and research of cultural heritage.
For example, we can observe NFTs, which are unique digital assets verified on the blockchain network, making them safe and valuable. Although the use of NFTs is still relatively new, some museums have already begun to explore their potential.
NFTs have various interesting applications in museums. One of them is the creation of virtual exhibitions that offer visitors an interactive immersive experience. An example of this is the Museum of Cryptographic Art (MOCA) in New York City, which presents digital art and uses NFTs to verify and trade artworks. Another use of NFTs is the use of blockchain technology to monitor the provenance and ownership of artwork. By keeping a permanent record on the blockchain, museums can authenticate artworks and avoid theft or fraud. In addition, museums are exploring NFTs as a means of generating revenue and supporting their operations. For example, the Louvre Museum in Paris sold a limited edition NFT of its famous Mona Lisa painting, which raised more than $100,000 in revenue.
All in all, NFTs have the potential to revolutionize the way we perceive and interact with art and artifacts in museums, while opening up new perspectives for museums to generate revenue and achieve their goals.
We conclude that digital technologies are an integral part of the development of the global museum business, and Ukraine is no exception.
