The 19 page 'Copyright Law and the Digitisation of Cultural Heritage' (Victoria University of Wellington Centre for Accounting, Governance & Taxation Research Working Paper No. 77) by Susan Corbett & Mark Boddington
comments that -
It has become common practice for cultural heritage institutions (CHIs) to digitise their collections. There are however certain aspects of this practice which are ethically or legally contentious. From an ethical perspective, the treatment of indigenous cultural heritage by New Zealand CHIs is acceptable; CHIs are sensitive to the cultures of indigenous communities and follow strict codes of practice when seeking to digitise items originating from these communities. Hence we argue that this should remain a matter of internal regulation. The public image of a CHI would be harmed were it not to follow culturally sensitive and ethical practices. Hence this likelihood acts as a strong societal deterrent which, although it is not part of a legal enforcement mechanism, nevertheless bears with it the element of public shame and also likely monetary penalty, since the numbers of visitors are likely to be reduced following such behavioural practices.
Conversely however, many New Zealand CHIs presume that their contractual relationships with visitors to the institution and its website permit them to override the public good exceptions that exist in copyright law. If this practice is permitted to become a norm, without passing through the usual democratic procedures required for the law making process, we suggest there will be serious implications for both copyright law and cultural heritage policies. Legislative amendment is required to provide that contractual provisions may not oust the public good exceptions provided in copyright law.
The authors conclude that -
Today many cultural heritage institutions are sensitive to the cultures of indigenous communities and follow carefully drawn-up frameworks and codes of practice when seeking to acquire items from these communities for their collections. Although this has been described as "soft law" with "no real enforcement mechanisms", we believe this is not necessarily fatal. It is undeniable that the public image of a modern cultural institution would be severely harmed were it not to follow culturally sensitive and ethical practices. Hence this likelihood acts as a strong societal deterrent which, although it is not part of a legal enforcement mechanism, nevertheless bears with it the element of public shame and indeed also likely monetary penalty imposed on the institution since the numbers of visitors are likely to be reduced following such behavioural practices.
Conversely however, many cultural heritage institutions appear to assume that their contractual relationships with visitors to the institution and the institutional website permit them to override the public good exceptions that exist in copyright law. If this practice is permitted to become a norm, without passing through the usual democratic procedures required for the law making process, we suggest there will be serious implications for both copyright law and cultural heritage policies. Legislative amendment is required to provide that contractual provisions may not oust the public good exceptions provided in copyright law. In the meantime, as a matter of good practice, a cultural heritage institution should ensure that its terms and conditions of entry to the physical institution, and also those terms and conditions which regulate visitors to their website, do not override the traditional copyright balance between users of copyright works and copyright owners.
