Posted on Thursday June 25, 2020

Updated on Friday August 19, 2022

How to identify and clear copyright in collection items

This page shares training to help you to determine if, and which, rights exist in your collection items. 

Introduction

Having an item in your collections does not necessarily mean owning its copyright. Copyright is not automatically transferred when a cultural object is endowed, gifted or otherwise added to the collection of a cultural heritage institution. Unless you made an agreement with the rightsholder of the work to transfer copyright, you do not own the copyright. This can be challenging when dealing with digital cultural heritage, as you will need to digitise, display and otherwise use the item. 

The information below highlights some of the steps that you can take when identifying the copyright status of an item in your collections. It is mostly based on European Union legislation. This page however should not be taken as legal advice. Please note that many of the copyright considerations will vary from one country to the other. 

Once you have identified copyright in your collections, read our guidance on how to select an accurate rights statement.

Learning Goals

By reading through this page and testing your knowledge through the quizzes linked below, you will understand:

  • that not everything that is held by a cultural heritage institution is protected by copyright; 

  • the multiple copyright layers that exist in a work;

  • some of the criteria to make a simple public domain calculation;

  • that copyright is not automatically transferred through obtention of an (physical) item;

  • the legal safeguards that a cultural heritage institution can rely on to use digital cultural heritage in their activities, and the limits of those safeguards;

  • how to obtain permission;

  • that there are restrictions or ethical considerations beyond copyright that are worth considering;

  • that in most cases, no rights can or should be claimed on digitisation.

Take the quizzes after reading through the relevant information. The answers are treated anonymously.

Section 1 - Find out whether the item is protected by copyright.

Was the item ever protected by copyright?

Copyright protects original works (works that reflect the author’s own intellectual creation), which among other things include things like literary works, dramatic works, art or films. 

Some creations that do not meet the originality criteria, such as non-original photographs, non-original databases, or the recording of a phonogram, are also entitled to some rights in certain countries, with a shorter duration of protection. They consist of a copyright-type of protection and are called neighbouring and sui generis rights.

This is important as it means that not everything that sits in the collections or fonds of an archive, library or museum is subject to copyright protection. There is an “originality” threshold that needs to be met. This is a rather difficult assessment to make, and the only person who can confirm whether something is original or not is a judge. Unfortunately, to be on the “safe side”, this results in a tendency to consider most things sufficiently original, and therefore copyright-protected, even though they might not be.

Copyright does not protect, among other things:

  • Works whose copyright term has expired

  • Content that does not meet the originality threshold

  • Ideas (copyright only protects their expression)

  • Natural artefacts (flowers, rocks, trees, songs of birds)

  • Mathematical problems and formulas

  • Under many legislations governmental, legal and/or judicial documentation.

Is the work in the public domain?

The public domain consists of works that are not protected by copyright. They can enter the public domain after the term of copyright protection has expired, was expressly waived, or if the work was never protected by copyright. 

The general rule in European Union Member States is that a work enters the public domain 70 years after the death of the author, effectively starting on the 1st January of the following year. However, there are exceptions to this rule which make the calculation quite complex. The moment from which the counting starts varies depending for instance on the type of work, if the work was published, if it is anonymous or published under a pseudonym, or authorship. There might also be  works inside the work whose copyright protection expires at a later stage. You should also take note of possible longer terms of protection as defined in national legislation.

Among other things, the Term Directive establishes that:

  • For anonymous or pseudonymous works the term of protection expires 70 years after the work has been lawfully made available to the public.  

  • The standard term of copyright in audio-visual works is 70 years after the death of the last author among the principal director, the authors of the screenplay and dialogue, and the composer of music especially written for the film.

  • In the case of a work of joint authorship, the term of 70 years is calculated from the death of the last surviving co-author.

  • The rights of producers of phonograms expire 50 years after the fixation is made.

Section 2 - If the item is in copyright, determine if you can use it.

Can you rely on an exception to copyright?

European copyright laws have a series of exceptions or limitations to copyright that allow people to use the works without obtaining permission from the author or rights holder under certain conditions. These include: 

  • The making of copies for preservation purposes

  • The publication online of out of commerce or orphan works

  • To display of a work in the classroom

  • The citation of parts of a work in research 

Check the exceptions foreseen in your country’s copyright law and the extent and conditions in which they apply.

Do you need to obtain permission to use the item?

If you do not own the copyright, and you cannot rely on an exception for the intended use, you will need to identify the owner and obtain the permission to use copyrighted material. 

Check whether the rightsholder agreed to transfer the rights to your institution when the item was acquired. It is also possible that the author transferred copyright to someone else, for instance, the author of the book to a publisher, or the author of the song to a record company. This is the person/institution that you should ask for permission to use the objects.

Make sure you know in advance which permissions you need. This can be as simple as stating your intended use in the agreement with the rightsholder such as  sharing a digital object with an aggregator, or allowing additional uses like education or commercial use. 

Collecting societies (organisations that collect copyright royalties on behalf of authors) might be in a position where they can give licenses to cultural heritage institutions to make collections available online, even if the author is not known or not in the collecting society’s repertoire.

What if you cannot identify or locate the rightsholder?

Consider relying on the orphan works exception in your country. After conducting a diligent search with no success, among other conditions, you will be able to make it available online (although not allow its reuse). However, the experience of many cultural heritage institutions when relying on this exception has been rather unfruitful. 

The out of commerce works provisions, which provide a solution based on a license and an exception, and has less cumbersome requirements than the orphan works exception, can be a good way forward to address this situation.

Some institutions take a risk-managed approach to use the objects, after carefully examining the risks and considering aspects such as whether the work was ever commercially available, its age, type or the intended use. You can read more about risk-management in this post and in this webinar by Naomi Korn, and in the second presentation of this webinar by Fred Saunderson.

Section 3 - Consider other restrictions

What further things are worth considering before making an item available online, or allowing its use?

When digitising the object, your institution may have agreed (maybe with the company that digitised the item or the person who photographed it) that you would limit the publication or reuse of the digital reproduction. Make sure you take note of such possible restrictions. 

In addition, there might be privacy concerns that challenge the sharing of the digital object, or the dissemination of the object could have a negative impact on a community.

Can you, and do you want to claim rights on the digitisation of the item?

Usually, digitisation processes (e.g. scanning, taking photographs of 2D and 3D objects) do not trigger new copyright or copyright-related protection. This can only happen if the digitised replica meets the EU standard of originality, which requires that the work is the “author’s own intellectual creation.” If the reproduction can be considered a new original artwork in its own right, the one who digitised the object will get full copyright protection. In most cases, digital objects created through digitisation will not meet the required originality threshold and will not qualify for any form of protection based on copyright. 

Some institutions claim rights based on neighbouring rights protection recognised to non-original photography. These only exist in a few countries, and in line with the Copyright in the Digital Single Market Directive, it should no longer be possible to rely on such protection for reproductions of works of visual arts in the public domain.

 In line with the Public Domain Charter Europeana encourages Data Providers not to claim those rights.

The format of this page was updated on 27 October 2020 and additional information about copyright protection and the public domain added. It was further enriched on 25 February 2022 with questions and answers to test knowledge.

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