publication date: December 8, 2022
Copyright to archival public photos and photos of museum collections.
Polish law shows the lack of dedicated comprehensive legal constructions as to the rules on which the image of museum collections can be used by web designers. This problem seems to be an interdisciplinary issue and subject to standard copyright protection rules, despite the fact that more and more often the deregulation of IP rights for the digitization of cultural entities encounters comprehensive solutions at the statutory level as part of the implementation of EU solutions. An example of recent legislation is the ongoing work at the Polish Government Legislation Center on a draft amendment to the Copyright Act by introducing a new Art. 262 in order to provide “cultural heritage institutions” with systemic deregulation tools, standard IP protection for the reproduction of works for the purpose of text and data mining for the purposes of scientific research, thus implementing Art. 3 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ EU L 130 of 17.05.2019, p. 92).
Some museums have decided to make their collections available for reproduction, copying and filming for popularizing, scientific, commercial and collecting purposes. An example of this is the Silesian Museum in Katowice. They grant a license to publish images of museum objects, museum interiors and outdoor spaces. On special request, one can also receive digital photographs of museum items and exhibitions. The official website of the Silesian Museum in Katowice shows that the person ordering digital images of museum items not covered by copyright – undertakes to include information in the publication under the photograph that the work comes from the collection of the Silesian Museum in Katowice. The digital image of museum exhibits with proprietary copyrights is made available under a non-exclusive license agreement with the right to a single publication.
As a rule, museums do not provide photographs of objects to which they are not entitled to proprietary copyrights enabling them to freely dispose of the image of the protected old cultural goods, unless the ordering party obtains consent from the author of the work or his legal successors.
However, due to the digitization of reality present in our lives, museums strive to digitize all their resources and then disseminate virtual images of objects. However, it should be mentioned that online dissemination of collections often encounters obstacles resulting from copyright protection of these collections.
An attempt to at least partially solve this problem on a European scale was the adoption of Directive (EU) 2012/28 of the European Parliament and of the Council of October 25, 2012 on certain permitted ways of using orphan works, added to the Polish legal order in the provisions of Art. 355 – 3512 of the Act on Copyright and Related Rights. These provisions are related to the creation by libraries, museums and archives of the so-called large online libraries. According to their content, cultural heritage institutions such as museums, libraries or archives may digitize and make available digital versions of those works from their collections without the prior consent of the rightholder, for which it is impossible to obtain the consent of the holder of rights for various reasons. However, confirming the status of an orphan work is not easy and requires an in-depth search for authorized persons. It should be also noted that pursuant to Art. 355 sec. 1 of the Act on Copyright and Related Rights,only works published in print, audiovisual works and works fixed in videograms and phonograms can be considered orphan works. Three-dimensional works of art, for example, cannot be given this status.
Therefore, despite the introduction of systemic solutions into the Polish legal system, standard copyright protection solutions for works are still valid when using fixed images of museum collections, which are always subject to assessment based on the individual circumstances of a given case from the perspective of infringements of copyright to the work of art.
A common example of copyright infringement by Internet users is sharing photos found on the web. Not all photos can be freely distributed. People who need to use such photos can search for them in databases with an open license photographs, e.g. Creative Commons.
Article 115 of the Act on Copyright and Related Rights provides that anyone who appropriates the authorship or misrepresents the authorship of all or part of someone else’s work or artistic performance is subject to a fine, restriction of liberty or imprisonment for up to 3 years. The same penalty is applied to anyone who disseminates someone else’s work in the original version or in the form of a study, artistic performance or publicly distorts such a work, artistic performance, phonogram, videogram or broadcast without providing the name or pseudonym of the creator. On the other hand, whoever, without permission or against its conditions, distributes someone else’s work in the original version or in the form of a study, artistic performance, phonogram, videogram or broadcast, is subject to a fine, the penalty of restriction of liberty or imprisonment for 2 years, as provided for in art. 116 of this Act. Prosecution of the offenses specified in this Act takes place at the request of the aggrieved party.
The aggrieved party whose rights have been infringed may demand that the person who has infringed these rights stop the infringement, remove its effects, repair the damage caused under general principles or pay an appropriate sum of money. According to the judgment of the Court of Appeal in Łódź of September 28, 2018 (reference number: I ACa 1641/17) – “appropriate remuneration” should be understood as such remuneration which the copyright holder would have received if a contract for the use of work in the scope of the infringement had been concluded”.
Legal aspects of making museum objects available via the Internet:
The Polish legal system lacks an in-depth, complex regulation of the issues related to the digitization of museum objects. When defining the legal aspects of digitization, it should first be noted that, in general, the issues of intellectual property protection, apart from copyright and related rights, also include: industrial property law, generis of databases, protection of personal rights and business secrets. The subject of copyright is determined to the greatest extent by the above-mentioned Act on Copyright and Related Rights. The issue of determining whether a given museum object will be subject to copyright requires determining whether the work of art can be considered a manifestation of individual creativity. The EU regulations also indicate the criterion of the author’s own intellectual creation.
In the light of Art. 4 of Polish copyright law, the subject of copyright is not: normative acts or their official drafts; official documents, materials, signs, symbols; published patent or protection specifications and simple press releases. Within certain appropriate limits set by law, one may use the work without the author’s permission. However, a necessary condition is to include information about the creator and the source, i.e. constant respect for personal property rights. In such a situation, the creator is not entitled to remuneration. On the basis of copyright law, from the point of view of making museum collections available via the Internet, there is crucial Art. 32 sec. 1 of the copyright law – the owner of a copy of an artistic work may exhibit it publicly, if it is not connected with obtaining financial benefits.
According to Art. 25a sec. 1 of the Act of 21 November 1996 on museums (consolidated text: Journal of Laws of 2022, item 385), it is possible, as a rule, to record and store images of museum objects on IT data carriers. The interpretation of the above provision is not unambiguous and clear. According to a part of the doctrine, it only allows recording and storage, i.e. digitization and protection of the resulting data, leaving the use of works only at the disposal of museums. However, the prevailing opinion is that Art. 25a of the Museums Act breaks the monopoly of the creator in this field of exploitation and gives museums the opportunity not only to digitize their collections, but also to disseminate their images, i.e. making them available on the Internet without the consent of the person entitled under economic copyrights.
The EU aspect of digitizing the image of museum exhibits.
In the light of Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, orphan works are works or phonograms subject to copyright protection, for which the authorized entities are not known or even if known, impossible to find. In connection with the above, it is impossible to obtain permission to use the work, i.e. obtain prior consent for digitization. When using orphan works, one should also remember, respecting moral rights, about the requirement to indicate authorship.
Photos taken at the museum on your website. Is it legal?
In the case of a website concerning, for example, various objects, access to which is sometimes paid, but the website is not of a commercial nature and is not used directly to obtain financial benefits from it, the problem of the legality of using photos of museum collections remains open. A much safer solution seems to be the use of self-made photos, in relation to which the freedom of publication on the website does not seem to be systemically limited. According to the judgment of the Regional Court in Warsaw – According to the Court of Competition and Consumer Protection of March 5, 2010 (case no.: XVII AmC 1145/09), museums may not prohibit photographing exhibits without a flash, and charge additional fees for photographing. Moreover, clauses in the regulations imposing such obligations on visitors are invalid by law.