Archiving Our Culture in a Digital Environment: Copyright Law and Digitisation Practices in Cultural Heritage Institutions

Abstract

This report presents the findings from interviews conducted with 26 employees involved in different aspects of the digitisation projects at seven New Zealand cultural heritage institutions (CHIs). The research project focused on copyright law and the digitisation of CHIs’ collections. The digitisation of Māori cultural heritage adds another dimension to the activities of New Zealand CHIs, and this area was also explored in the interviews. The objectives of CHIs are to protect, preserve, and facilitate accessibility to cultural entities in the interests of research and education, and the general public interest in cultural matters. In line with overseas practice, New Zealand’s CHIs make use of digital technologies to achieve their objectives. However, many items in CHIs’ collections are protected by copyright. To make a copy of such items without the consent of the copyright owner is an infringement of copyright. Nevertheless, for various reasons including those that are linked to copyright law itself, as well as practical matters such as inadequate resourcing for CHIs to trace absent copyright owners, and a lack of metadata relating to some items in CHIs’ collections, most digitisation projects in CHIs proceed without the consent of copyright owners. Indeed, there is very little understanding within CHIs of the complexities of copyright law and how it relates to the practices of digitisation of their collections. In essence, the permitted exceptions in the Copyright Act 1994 (“the Copyright Act”) which are intended to support the preservation and archiving of cultural heritage (“the archiving exceptions”) are, similarly to equivalent provisions in overseas copyright legislation, unsuitable in a digital environment. For example, the archiving exceptions permit a single digital copy of an item to be made, whereas digitisation inevitably results in multiple copies. In addition, it is unclear whether the archiving exceptions apply to CHIs that are museums. In part, this gap between practice and law appears to exist because the broader purposes of digitisation of CHI collections were misconceived by the legislators. This research found that CHIs digitise their collections because they wish to provide accessibility to a more widespread audience. Conversely, the archiving exceptions have been drafted with a view that the main purpose of digitisation is similar to that of analogue reproduction; that is, to preserve a copy of an item in a collection that is in danger of deterioration. Another reason for the inadequacy of the archiving exceptions is that, as for all permitted exceptions in national copyright laws, these provisions are required to comply with each of the “three step test” provisions in Article 13 of the Agreement of Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Part 8 of this report suggests that the three step test requirement can be satisfied while nevertheless providing more appropriate exceptions for CHIs. While CHIs’ practices in the area of digitisation of Māori cultural heritage appear, on the whole, to be robust this report proposes that to provide certainty a new provision to regulate this activity should be inserted into the Copyright Act. The report concludes by recommending further amendments to the Copyright Act to address the current gap between practice and the law that has been revealed by the research.