Something old, something new

Intellectual property (IP) is at the heart of the creative process – and the rules regarding the acquisition and use of artistic and creative works still apply in the virtual world, whatever habitual file-sharers may say. It is this mass migration to the web which has given rise to new IP rights that operate alongside traditional copyright (protecting artistic, musical, literary and dramatic works), trademarks and rights in designs. Shifts in copyright law mean that presenting a copyright work to the public by electronic means without the permission of its proprietor is illegal. We have seen the development of a framework to manage domain names and settle disputes over ownership, and database rights have been introduced. Moving collections online has thrown up new challenges for organisations having to identify ownership of so-called ‘orphan works’.

Arts organisations have to audit the IP rights in their existing collections, while also considering the rights and licensing issues connected to new online content. For example, a theatre that chooses to upload a video clip of a recent operatic performance must secure licences to record and upload the music and record the libretto, and to feature the set and the costumes. In addition, the theatre needs clearance from its performers, and must secure copyright ownership of the film itself and the related sound recording. In uploading the clip, the organisation will have tackled copyright, performance rights and moral rights issues. Furthermore, if there are trademarks featured on set, further permission from the holders may be required. So while uploading content is a worthwhile endeavour in terms of drawing visitors to an organisation’s website, securing relevant permissions can be a long and complex process. Another consideration is the geographical scope and conditions of access to licensed materials. If an organisation uploads content to the web, it is accessible to the world, which means that the organisation must have the rights to distribute the material worldwide. 

Something borrowed
The social media landscape has allowed Internet users to share, alter, comment on and manipulate online material. This ‘mash-up’ culture, perpetuated by photo sharing websites such as Flickr, means that arts organisations need to look at how their licensed material can be consumed by website visitors. A gallery which makes artists’ works available to download can be met with resistance from the artists, as the ability to download these works potentially allows visitors to modify and use the images creatively themselves. As a result, preserving artistic integrity is a major consideration when uploading content to the web.
Organisations embracing social media through their websites open a dialogue with their audience which was previously unachievable. Through blog comments, forums and other online tools, organisations can gauge public opinion, target their users more effectively, respond to audience concerns and engage with them directly. This is a valuable resource, but it also presents legal issues and questions of reputation management. If the public have the ability to pass comment in a forum hosted by the organisation, the organisation needs to monitor this space for breaches of anti-discrimination laws, defamation and infringement by user-generated content of IP rights. Through formal training, and by enforcing a strict user policy, organisations can mitigate risk and see a valuable return on investment.
Content uploaded directly from the organisation in the form of blogs should also be regulated by a strict internal social media policy. While the organisation should ensure transparency to retain user confidence, it must also establish a clear voice and implement a social media policy to avoid the publication of unsuitable content. Furthermore, the organisation needs to monitor comments on blog posts which may damage the company’s reputation. A negative message posted in the morning in Manchester could reach funders in London by lunchtime and the rest of the world by tea time.

A marriage made in heaven?
While arts organisations commonly trade on reputation, it can be extra revenue from merchandise that keeps them afloat. Organisations that trade or market online face both the traditional contract and consumer law issues familiar to managers of museum shops and box offices, and new obligations in connection with e-commerce laws. Rules for online trading can have serious repercussions if overlooked. As a result, choosing merchant and technology partners with care, and seeking independent legal and IT advice, can ensure a smooth transition into the online market place. The opportunities presented by the web come with risks that need to be managed effectively. Devoting time and resources to getting the intellectual property and regulatory framework right will mean that arts managers can sleep easily while their works reach new audiences around the world.