Glossary

11.1 Copyright and licensing

11 min read•august 19, 2024

Copyright and licensing are crucial aspects of digital art history, impacting how cultural heritage is shared and studied. Understanding these concepts helps balance creators' rights with public access, ensuring ethical use of digital content in research and education.

Navigating copyright in digital art history involves managing permissions, documenting content status, and addressing international legal differences. Effective copyright policies and licensing strategies are essential for successful projects, fostering collaboration while respecting intellectual property rights.

  • Copyright is a form of intellectual property protection that grants creators exclusive rights over their original works, including literary, artistic, musical, and dramatic works
  • Copyright law aims to balance the interests of creators, who deserve to be compensated for their work, with the public's interest in accessing and using creative works

Intellectual property rights

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  • Intellectual property rights protect creations of the mind, such as inventions, literary and artistic works, designs, and symbols
  • Copyright is one type of intellectual property right, along with patents, trademarks, and trade secrets
  • These rights incentivize creativity and innovation by allowing creators to control how their works are used and to benefit financially from their creations
  • Copyright holders have the exclusive right to reproduce, distribute, perform, display, and create derivative works based on their original creation
  • These rights allow copyright holders to control how their work is used and to receive compensation for its use
  • Copyright infringement occurs when someone uses a copyrighted work without permission from the copyright holder, except in cases of fair use or other legal exceptions
  • Copyright protection lasts for a limited time, typically the life of the creator plus a certain number of years after their death (e.g., 70 years in many countries)
  • After the copyright term expires, the work enters the , meaning it can be used freely without permission or compensation to the original copyright holder
  • The length of copyright protection has been extended several times in recent history, such as through the Sonny Bono Copyright Term Extension Act in the United States (1998)

Public domain works

  • Public domain works are those that are not protected by copyright, either because the copyright has expired or because the work was never eligible for copyright protection
  • Examples of public domain works include ancient Greek and Roman sculptures, Shakespeare's plays, and works created by the U.S. federal government
  • Public domain works can be used freely by anyone for any purpose, including commercial use, without permission or compensation to the original creator
  • Digital art history involves the use of digital technologies to study, preserve, and share art and cultural heritage
  • Copyright issues are particularly relevant in digital art history due to the ease of reproducing and distributing digital images and other content

Digital reproductions of artworks

  • Digital reproductions of artworks, such as high-resolution images or 3D models, can be valuable tools for research, education, and public engagement
  • However, creating and using digital reproductions raises questions about copyright ownership and permissions, especially for works that are still protected by copyright
  • Institutions that create digital reproductions of artworks must carefully consider the copyright status of the original work and obtain necessary permissions before making the reproduction available
  • The copyright status of a digital image depends on various factors, including the copyright status of the original artwork, the creativity involved in producing the digital image, and any applicable copyright exceptions or limitations
  • In some cases, a digital reproduction may be considered a derivative work with its own copyright protection, separate from the copyright in the original artwork
  • Institutions should carefully document the copyright status of digital images and communicate this information to users to ensure proper use and attribution

Fair use and educational exceptions

  • Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
  • Educational exceptions to copyright law may allow teachers and students to use copyrighted works in the classroom or for educational purposes without permission from the copyright holder
  • However, the application of fair use and educational exceptions can be complex and context-dependent, requiring careful analysis of factors such as the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the potential market for the work
  • Orphan works are copyrighted works whose owners cannot be identified or located, making it difficult to obtain permission for use
  • The lack of clear ownership information can hinder the use of orphan works in digital art history projects, as the risk of copyright infringement may deter institutions from making these works available
  • Proposed solutions to the orphan works problem include legal frameworks for using these works after a diligent search for the copyright owner, and the creation of databases to help identify and locate copyright owners

Licensing digital content

  • Licensing is a way for copyright holders to grant permission for others to use their work under certain conditions
  • Licenses can specify the types of uses allowed, any restrictions or obligations, and the duration of the permission
  • Understanding and managing licenses is crucial for digital art history projects that involve the use of copyrighted content

Creative Commons licenses

  • (CC) is a non-profit organization that provides a set of standardized copyright licenses that allow creators to share their work with the public under certain conditions
  • CC licenses range from very permissive (e.g., CC BY, which only requires attribution) to more restrictive (e.g., CC BY-NC-ND, which prohibits commercial use and derivative works)
  • Using CC-licensed content can simplify the process of obtaining permissions and ensure that the use of the content is consistent with the creator's intentions

Open access vs restricted licenses

  • licenses, such as CC BY, allow users to freely access, use, and share content with minimal restrictions
  • Restricted licenses, on the other hand, may limit the types of uses allowed or require users to obtain additional permissions or pay fees for certain uses
  • The choice between open access and restricted licenses depends on factors such as the goals of the project, the preferences of the copyright holders, and the potential impact on the sustainability and accessibility of the content

Licensing agreements for institutions

  • Cultural heritage institutions, such as museums and libraries, often enter into licensing agreements with copyright holders to obtain permission to use copyrighted works in their collections or projects
  • These agreements may cover issues such as the scope of the permitted use, any fees or royalties, the duration of the agreement, and any obligations or restrictions on the institution
  • Institutions should carefully review and negotiate licensing agreements to ensure that they are consistent with their mission and values and that they provide sufficient rights and protections for the intended use of the content

Implications of licensing on research

  • The terms of licenses can have significant implications for the ability of researchers to access, use, and share digital content in their work
  • Restrictive licenses may limit the types of research that can be conducted or the ability to publish and disseminate research findings
  • Open access licenses, on the other hand, can facilitate research by allowing researchers to freely use and build upon digital content without the need for additional permissions or fees
  • Cultural heritage collections, including artworks, artifacts, and other cultural objects, often raise complex copyright issues due to their unique characteristics and the diverse range of stakeholders involved
  • Copyright law may not always adequately address the needs and interests of cultural heritage institutions, artists, and communities, requiring the development of new approaches and best practices
  • Many cultural heritage collections contain works that are protected by copyright, either because they are relatively recent creations or because the copyright has been extended through legal or contractual means
  • Institutions must navigate the complex web of copyright ownership and permissions when digitizing, preserving, and providing access to these collections
  • In some cases, institutions may need to seek permission from multiple copyright holders, such as artists, their heirs, or third-party rights holders, which can be a time-consuming and resource-intensive process
  • Traditional knowledge, including traditional cultural expressions and traditional knowledge related to genetic resources, often falls outside the scope of conventional copyright protection
  • Indigenous communities and other holders of traditional knowledge may have unique cultural, spiritual, and economic interests in controlling the use and dissemination of this knowledge
  • Efforts to protect traditional knowledge through copyright law or sui generis systems have gained increasing attention in recent years, but they remain a complex and controversial area of international law and policy

Moral rights of artists and communities

  • are a set of non-economic rights that protect the personal and reputational interests of artists, such as the right of attribution and the right to the integrity of the work
  • In some legal systems, moral rights may also extend to communities or other groups who have a collective interest in a work or cultural practice
  • Respecting the moral rights of artists and communities is an important ethical consideration in digital art history projects, even if these rights are not always recognized or enforced under copyright law
  • Digital preservation involves the long-term management and maintenance of digital content to ensure its ongoing accessibility and usability
  • Copyright can pose challenges for digital preservation, as the act of preserving a work may involve making copies or adapting the work in ways that require permission from the copyright holder
  • Legal exceptions and limitations, such as those for preservation purposes, can help facilitate digital preservation activities, but they may not always provide a clear or comprehensive solution
  • Effective copyright management is essential for the success and sustainability of digital art history projects
  • This involves developing policies and procedures for identifying, documenting, and communicating the copyright status of digital content, as well as obtaining necessary permissions and licenses
  • Obtaining copyright permissions involves identifying and contacting the relevant copyright holders and negotiating the terms of the permission, such as the scope of the use, any fees or royalties, and the duration of the permission
  • This process can be complex and time-consuming, especially for projects that involve a large number of copyrighted works or multiple rights holders
  • Developing standardized procedures and templates for requesting and tracking permissions can help streamline the process and ensure consistency and transparency
  • Documenting the copyright status of digital content is crucial for ensuring compliance with copyright law and facilitating the appropriate use and reuse of the content
  • This may involve creating and maintaining a database or other system for recording information such as the copyright owner, the date of creation, the terms of any licenses or permissions, and any relevant exceptions or limitations
  • Consistent and accurate documentation can help prevent copyright infringement, demonstrate due diligence, and support the long-term management and preservation of the content
  • Copyright notices and attributions are important for communicating the copyright status of digital content and acknowledging the rights and contributions of copyright holders
  • Including clear and prominent copyright notices can help deter infringement and ensure that users are aware of any restrictions or obligations associated with the use of the content
  • Providing accurate and complete attributions, including the name of the creator, the title of the work, and the source of the content, is a matter of both legal compliance and ethical practice
  • Developing and implementing clear and comprehensive copyright policies is essential for managing copyright in digital art history projects
  • These policies should address issues such as the criteria for selecting content, the process for obtaining permissions, the standards for documenting copyright status, and the procedures for handling copyright complaints or disputes
  • Regularly reviewing and updating copyright policies can help ensure that they remain relevant and effective in light of changing legal, technological, and cultural contexts
  • Copyright law varies from country to country, creating a complex and often inconsistent international legal landscape
  • Digital art history projects that involve cross-border activities, such as international collaborations or the use of content from multiple countries, must navigate these differences and ensure compliance with applicable laws and treaties
  • While there are some common principles and minimum standards established by international copyright treaties, there are also significant differences among national copyright laws
  • These differences may include the scope and duration of copyright protection, the specific rights granted to copyright holders, the exceptions and limitations to these rights, and the procedures for enforcing copyright
  • Understanding and complying with these differences can be a significant challenge for digital art history projects that operate in multiple jurisdictions
  • International copyright treaties, such as the and the WIPO Copyright Treaty, aim to harmonize copyright law across borders and establish minimum standards for copyright protection
  • These treaties require member countries to provide certain rights and protections to foreign copyright holders and to treat them no less favorably than domestic copyright holders
  • However, the implementation and enforcement of these treaties can vary widely among countries, and they may not always provide a clear or comprehensive solution to cross-border copyright issues
  • Cross-border copyright issues can arise in various contexts, such as when a project involves the use of content from multiple countries, when collaborators are based in different countries, or when the project targets users in multiple jurisdictions
  • These issues may include questions of choice of law (i.e., which country's law applies), jurisdiction (i.e., which country's courts have the authority to hear a dispute), and enforcement (i.e., how to enforce copyright in multiple countries)
  • Addressing these issues may require specialized legal expertise and the development of strategies for managing copyright across borders, such as obtaining multi-territorial licenses or relying on international copyright exceptions and limitations
  • Navigating the global copyright landscape requires a proactive and strategic approach that takes into account the legal, cultural, and practical realities of cross-border copyright issues
  • This may involve developing a clear understanding of the relevant laws and treaties, establishing partnerships and collaborations with institutions and experts in other countries, and adopting flexible and adaptable copyright policies and practices
  • By engaging with the international copyright community and staying informed about developments in copyright law and policy, digital art history projects can better navigate the challenges and opportunities of the global copyright landscape

Key Terms to Review (18)

ASCAP: ASCAP, or the American Society of Composers, Authors, and Publishers, is a performing rights organization that protects the rights of music creators by licensing their works and collecting royalties for public performances. By ensuring that songwriters, composers, and music publishers receive compensation for the use of their music, ASCAP plays a crucial role in the broader music industry and copyright landscape. The organization helps manage the complex relationship between creators and users of music, including venues, broadcasters, and digital platforms.
Berne Convention: The Berne Convention is an international agreement that governs copyright protection for literary and artistic works. Established in 1886, it ensures that creators in one member country receive the same rights and protections for their works in other member countries, promoting the idea of universal copyright. This convention is significant as it lays the groundwork for how copyright is handled globally, influencing national laws and licensing practices.
BMI: BMI, or Body Mass Index, is a numerical value calculated from an individual's weight and height that is used to categorize them into weight status categories such as underweight, normal weight, overweight, or obese. It serves as a useful screening tool for assessing body weight in relation to height and can help identify potential health risks associated with being underweight or overweight.
Campbell v. Acuff-Rose: Campbell v. Acuff-Rose is a landmark Supreme Court case from 1994 that addressed the issue of fair use in copyright law. The case revolved around the rap group 2 Live Crew's unauthorized parody of Roy Orbison's song 'Oh, Pretty Woman.' The ruling clarified the application of the fair use doctrine, emphasizing that transformative works could qualify for fair use even if they are commercially motivated.
Collective rights: Collective rights refer to the rights held by a group rather than by individuals. These rights often apply to specific communities, such as indigenous peoples, cultural groups, or national minorities, allowing them to maintain their identity, culture, and traditions. In the context of copyright and licensing, collective rights play a significant role in determining how creative works are shared, used, and protected among groups.
Commentary and criticism: Commentary and criticism refer to the analysis and evaluation of artistic works, exploring their meanings, significance, and impact. This term highlights the importance of critical thinking in understanding art, as it encompasses various perspectives that can enhance or challenge prevailing interpretations.
Copyright Act: The Copyright Act is a law that grants creators of original works exclusive rights to their creations, typically for a limited duration. This act helps protect the rights of artists, authors, and other creators by giving them control over the use and distribution of their work, ensuring they can benefit from their intellectual property while also fostering creativity and innovation in society.
Creative Commons: Creative Commons is a nonprofit organization that provides free licenses to enable creators to share their work legally while maintaining certain rights. These licenses help users understand how they can use the work, making it easier for people to legally share, remix, and build upon creative content while respecting the creator's preferences regarding attribution and restrictions. This concept is deeply intertwined with various standards and frameworks that support digital cultural heritage and facilitate the sharing of knowledge and resources.
Cultural appropriation: Cultural appropriation is the adoption or use of elements from one culture by members of another culture, often without permission or understanding, leading to the commodification and misrepresentation of the original culture. This concept is critical in understanding the power dynamics at play when technology intersects with culture, especially in areas like digital art and heritage.
Digital colonialism: Digital colonialism refers to the control and exploitation of digital resources, data, and cultural heritage by powerful entities, often at the expense of local communities and cultures. This concept highlights how technology can perpetuate existing power dynamics, leading to the marginalization of indigenous voices and the appropriation of cultural expressions in the digital space. It raises important questions about access, representation, and ownership in our increasingly digital world.
Digital rights management (drm): Digital rights management (DRM) refers to a set of technologies and legal measures that control how digital content is used, distributed, and accessed. It aims to protect the rights of creators and copyright holders while limiting unauthorized use or reproduction of their works. This concept ties closely to copyright and licensing, as it seeks to enforce the legal protections established by these frameworks in the digital realm.
Google Books Case: The Google Books Case refers to a significant legal dispute regarding copyright infringement and the fair use doctrine, stemming from Google's initiative to digitize millions of books and make them searchable online. This case raises important questions about the balance between protecting intellectual property rights and promoting access to information in the digital age.
Moral rights: Moral rights refer to the personal rights of creators to protect their non-economic interests in their works, including the right to attribution and the right to integrity. These rights enable artists to maintain a connection to their work and ensure it is not altered or used in ways that could harm their reputation. They are often distinct from economic rights, which focus on the financial aspects of copyright and licensing.
Nfts: NFTs, or non-fungible tokens, are unique digital assets that represent ownership or proof of authenticity of a specific item or piece of content, often using blockchain technology. Unlike cryptocurrencies such as Bitcoin, which are interchangeable and hold the same value, NFTs are distinct and can signify ownership of items like digital art, music, or virtual real estate. This uniqueness is central to their value, making them important in discussions about provenance tracking and copyright in the digital space.
Open access: Open access refers to the practice of providing unrestricted online access to scholarly research outputs and academic content. This approach encourages the sharing of knowledge, allowing anyone to read, download, and use research findings without financial, legal, or technical barriers. By promoting open access, the academic community aims to enhance collaboration, increase visibility of research, and democratize access to information.
Public domain: Public domain refers to creative works that are not protected by copyright, meaning they can be freely used, shared, and built upon by anyone without seeking permission. Works enter the public domain for various reasons, such as the expiration of copyright protection or being deliberately placed there by the creator. Understanding public domain is crucial when discussing copyright laws and licensing frameworks as it defines what can be freely accessed and utilized in creative endeavors.
Royalty-free: Royalty-free refers to a type of licensing arrangement where the buyer can use a copyrighted work without having to pay royalties or licensing fees for each use. This means that once the initial fee is paid, the buyer can utilize the material freely in various projects, often with fewer restrictions compared to traditional licensing agreements. Royalty-free licenses are popular among artists and creators who want to use images, music, and other content without ongoing costs.
Transformative use: Transformative use refers to a legal doctrine in copyright law that allows for the use of copyrighted material in a way that adds new expression, meaning, or message, thereby transforming the original work. This concept is crucial because it can provide a legal defense against copyright infringement claims when the new work significantly alters the original in a creative manner, thus serving a different purpose or audience.
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