The development of the Internet has presented lawyers with a host of new legal challenges, many of which are unresolved. Josh Smith considers the measures that artists and art galleries need to take in order to protect themselves and their work.
The arts community is embracing the new digital future. Many galleries have already taken advantage of the new digital resources at their disposal by mounting ?virtual exhibitions? online. However, art galleries need to be aware of the significant legal risks when conducting business on the Internet. There are two challenges:
1.How can artists and galleries protect themselves and their intellectual property from piracy?
2.How can galleries avoid infringing the copyright and other intellectual property rights of others?
The threat of piracy
It is sometimes said that ?the Internet works by copying?. The digitisation of images placed on the Internet allows art works to be copied easily and at a low cost. Increasingly images and photographs are sent around the world over the Internet, infringing copyright with apparent impunity. Fortunately, both the European and UK legislatures have recognised the need for additional protection for copyright owners in the digital environment. The Digital Copyright Directive, adopted by the European Council on April 9, 2001, requires EC Member States to pass laws that make the unauthorised scanning and electronic reproduction of works of art an infringement of copyright and provide protection for encryption and rights management systems designed to protect copyright works. However, the protection of copyright online will remain complex, partly due to the international nature of the Internet. For instance, the Directive fails to clarify which country will have jurisdiction when there is an online infringement.
Protecting against piracy
There are several simple steps that may help to reduce the risk of piracy. Images can be digitally watermarked so that the source of any copies can be traced. Many virtual exhibitions also use comparatively small files for images viewed on screen, so that the resolution is too low for commercial reproduction. If a gallery sells images from its virtual exhibition over the Internet, then they should provide a licence limiting the use of the image and consider encrypting the file.
Registered trade marks can be effective in preventing misuse of art galleries? names and brands, for example with hijacked domain names. The registration of a trade mark in a number of countries can be expensive but in the long term it can be an effective means of protecting the image, reputation and goodwill of a business. Artists may even consider registering their name, signature or motif. The name ?Picasso? and his distinctive signature have been held to be a valid registered trade mark in the USA. Even if a trade mark has not been registered, using another institution?s or artist?s name or falsely implying an association with or sponsorship by another party may lead to a claim for ?passing off ?.
Domain names
Until recently, art galleries seeking to register a domain name would usually be directed to a domain name with the suffix .org. However, the last six months has seen the development of a new restricted ?top level domain? (TLD) .museum, which is targeted at a distinct group in the Internet community and designed as a signpost of authenticity. A number of prominent galleries have already registered, such as http://www.metropolitan.art.museum.
Often galleries find that although they have registered the most appropriate domain name, very similar domain names have been occupied by cybersquatters. This activity, if left unchecked, can seriously damage a gallery?s reputation and goodwill. Many institutions have reacted by making appropriate defensive domain name registrations. However, even if a name has already been registered, it is possible to make an application for the domain name to be transferred through the Uniform Dispute Resolution Procedure developed by ICANN, the organisation with overall responsibility for the Internet.
Creating a website
Many galleries have already recognised the Internet?s potential as a publishing medium and have their own websites providing historical, membership and visitor information to users. This content may appear inoffensive but web publishers need to be careful not to offend laws dealing with decency, the reputation of others, data protection and reliability of any information contained on the website. The development of e-commerce has also encouraged many institutions to create online shops. The rights of both businesses and consumers have now been accorded increased protection through recent EC and domestic legislation dealing with the creation and conduct of transactions over the Internet.
Even the simple hyper-linking of different websites may produce legal problems. A simple link from one site to another is unlikely to infringe copyright, but deep links that go direct to images on another website may infringe copyright or trade mark rights, particularly if they bypass advertising or sponsorship information on the homepage. It is therefore sensible to notify those sites that you intend to link.
Virtual exhibitions
More complicated intellectual property issues are likely to be raised if a gallery exhibits part of its own or another gallery?s collection in a ?virtual exhibition? linked to its website. It is an infringement of copyright to place an image on a website without the consent of the copyright holder. Galleries therefore need to check whether copyright in the original work of art has expired and whether there is additional copyright in the transparency or digitised image. In the UK, a digitised work may easily acquire a separate copyright, distinct from the copyright in the original work, if sufficient skill and labour has been used in its creation. A separate copyright may therefore subsist in a photograph or digitised version of an old master even though the original painting is out of copyright.
If copyright exists in the original work or its digital version, an appropriate world wide licence must be obtained from the artist or right holder before the work is placed on the Internet. In many jurisdictions, electronic publishers need to obtain an express right to digitise and publish in digital form. A general right to reproduce and publish an image may not always be sufficient, particularly if this right was granted prior to the arrival of the Internet.
It has been argued that any material deliberately placed on the Internet carries with it an implied licence to others to copy the work. A suitable ?click-through? copyright licence and warning should therefore be included on the website, conferring a one off licence to copy free of charge for domestic and private use only.
The concept of a lawless Internet enabling pervasive copyright infringement has encouraged some commentators to predict the death of copyright. However, recent EC legislation has both strengthened and harmonised copyright protection. As the law adapts to its new environment, artists, galleries and publishers need to be alert to efficiently manage and protect their intellectual property rights.
Josh Smith is a member of the Media & Entertainment Group at Charles Russell. t:020 7203 5075 e: joshs@cr-law.co.uk w: http://www.charlesrussell.co.uk