2 February 2017
Museums, collecting & copyright: An uncomfortable (post) truth?
In a post truth, post Trump, Brexit world, museums, archives, libraries and other cultural heritage organisations have more of a vital role now in collecting, curating and providing access to ephemera and objects than ever before. Indeed, museums in the US are actively collecting signs, placards, posters and objects that protesters have donated or left behind. We are in unprecedented times, and the objects, stories and material culture from unprecedented times must be collected. Since the world of “alternative facts” seems to have heralded an era that leaves us vulnerable to the re-writing of history, our cultural heritage organisations are at the forefront in ensuring that we collect the evidence of times now, so that in the future, this history that we are creating now, cannot simply be erased from the history books, and at the very least, is harder to manipulate and distort.
With this in mind, I’ve been thinking about the relationship of copyright to the collecting policies of museums. What I find interesting is that many of the signs that are regularly used in the protests, as well as the videos regularly posted on friends’ Facebook timelines (You Rock, Randy Rainbow, btw!), are unsurprising more effective if they incorporate familiar phrases and logos, parody existing images and or content, or perhaps caricature specific individuals, behaviours etc. When messaging is often more effective and take up greater, if it shocks and/or uses iconic images, music etc, this is hardly surprising. For example, the recent protests in Brighton 3 days ago against Donald Trump reworded the song “Hey Baby” by Bruce Channel “Hey, hey, hey Donald, I wanna know why you’re such a c**t”. This in itself also opens up issues about libel, defamation etc.
So, if museums are collecting these objects, recordings, material culture of today, where does it leave them tomorrow in terms of copyright? More to the point, should they not collect if the copyright issues inherent in these items means that they are effectively unreproducible?
There are several inter-playing issues at stake here. The relationship between legalities, ethics, standards and obligations and risk management – to name a few. In terms of copyright, however, the UK’s recent commitment to reform copyright laws in 2014 in favour of a more enlightened copyright regime, provides some respite. Certainly regarding the collection of objects, stories and content associated with the current protests, without seeking permission from the makers (who probably would never be located) museums would be able to make preservation copies of these items once the items became part of their collections (unlimited digital copies), but also they would be able to provide digital access to images of these items via dedicated terminals on their premises for walk-in users. Arguably, the new copyright exception for parody, caricature and pastiche, would also limit risks associated with the very collecting of items which were using and/or based on copyright works created by others. Subsequently, in the future, the Quotation copyright exception, would enable museums to reproduce extracts of published protest ephemera, like videos posted on YouTube etc, in association with exhibitions, publications, activities etc. There is certainly enough here for museums even with the most restrictive and administratively cumbersome collecting policies to feel reassured that they could reproduce and use, now and in the future, print and/or digital items associated with the protests.
However, there is more to this than just the applicability of the UK’s copyright exceptions. There is a fundamental issue here that even if we could not find copyright exceptions to enable us to feel safe to collect works which pose copyright concerns (orphan works, infringing others copyright etc etc), we should not be using copyright, or indeed other legal issues such as libel and/or defamation etc, as an excuse not to collect certain works. With the rights of individuals, safeguarding of social justice, religious freedoms and other human rights at stake, our museums, our libraries, our archives, have vital roles to play to safeguard records of these rights and preserve evidence of responses to potential breaches of these rights. Collecting comprehensive records of our present, is the history by which we try and learn from, and from which we try to make sure erosions of our liberties do not happen again. Our cultural heritage organisations are placed at the heart of our community and societal values, and we need to step up and make sure that what we do is what we are here to do. We need to operate within the law, but we also need to be pragmatic and have sensible and proportionate approaches to risk that enable us to collect with our copyright eyes open. We collect, we safeguard – we are the custodians of our nation’s cultural heritage – no excuses.
© Naomi Korn, 2016. Some Rights Reserved. The information here is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)