Abuja — The continued unrestricted use of duplicating devices is a minus in the fight to protect intellectual property rights

Over the past several decades, scholarship on the nexus between cultural heritage and intellectual property law has alternately garnered keen international attention Those jurisdictions that have a greater interest in protecting their heritage perhaps because of its cultural importance or because of a history of misappropriation - through IP laws have, of course, focused more resources and thought on the issue. The Nigerian experience will be considered next Friday.

On an international platform, however, there is little legal consistency or ideological agreement on the appropriate means through which to protect all the objects and expressions that comprise a culture's heritage. From differing legal systems to different degrees of autonomy for indigenous civilizations to different understandings of what constitutes ethical treatment or dissemination of cultural heritage, cultural organizations around the world are struggling to determine the most appropriate ways to handle the intellectual property assets tied to cultural goods.

Many believe it would be useful to have an international consistency in so far as the manner in which this heritage is treated for purposes of streamlining such things as cross-border borrowing and lending of heritage objects and providing some high-level guidance for an array of other difficult issues.

There have been international treaties regarding the physical aspects of heritage. Some examples include the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention); the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO), Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (The UNESCO Convention); and the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects (The UNIDROIT Convention).

Regarding the intellectual property aspects of heritage, however, there have only been attempts at international agreement. Some of the attempts at creating consensus include a joint project between UNESCO and the World Intellectual Property Organization (WIPO): the UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions of 1982; the South Pacific Model Law for the Protection of Traditional Knowledge and Expressions of Culture of 2002; and the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003.

Some of the problems these latter agreements have had include lack of international interest or support, the role of traditional knowledge in the general heritage conservation debate, and dissimilar current practices amongst institutions in the areas of archiving, preservation, website design and copyright law. As such, cultural institutions tend to operate with the best information they have available for their intellectual property concerns, rather than according to any set of international best practices or guidelines.

To fill this gap, organizations such as the International Council of Museums (ICOM), headquartered in Paris, have begun to look at the topic of intellectual property as one that needs urgent attention as more and more of the world's art travels from country to country and becomes accessible online. There are, for example, distinct differences amongst cultural institutions in the way in which art is digitized and placed online.

French moral rights are some of the strongest in the world, on top of which this type of collection calls for special protection. The museum's "legal notes" webpage instructs the website user on his or her intellectual property responsibilities, pointing to specific parts of the law. It explicitly prohibits full or partial reproduction and translation of the website. The webpage further instructs the user on what constitutes unauthorised reproduction and explains that downloading and printing any webpage from the website shall be solely for personal use and should be destroyed thereafter.

"Organisations such as the International Council of Museums (ICOM), headquartered in Paris, have begun to look at the topic of intellectual property as one that needs urgent attention as more and more of the world's art travels from country to country and becomes accessible online." One of the interesting facets of the Internet, of course, is that the same webpage is viewable from any corner of the world, and therefore, any jurisdiction. While the effect the Internet has had on international copyright practices in general is beyond the scope of this writing, certainly an important issue potentially affects every digitised work under copyright.

A tangential issue that is uncertain is whether photographs of two-dimensional artwork in the public domain are copyrightable. The 1999 United States District Court case, Bridgeman Art Library v. Corel Corp. ruled that photographs of public domain paintings cannot be protected under copyright law due to a lack of originality. While this finding has not been challenged in the international arena or at the US Supreme Court, it has potential to impact museums' ability to control and profit from reproductions of much of their collections. This is because museums have traditionally been able to license photographs of their art objects, for a profit, to entities wishing to use those images, ranging from publishing companies books to companies using artwork on pamphlets.

Because of the sometimes nebulous legal parameters of intellectual property in museum and gallery collections, it may be useful to focus international attention on best practices in this arena. While an authoritative text or list of legal guidelines on the international scale are currently not feasible because of the ongoing discussions and disagreements in several areas (traditional cultural expressions, e.g.), it is important for museum professionals to understand the issues for physical art, digital reproductions of that art, and online digitization efforts with regard to their own jurisdictions; and to be exposed to ways in which other jurisdictions and institutions are handling these issues. All that is needful is an understanding of the issues and legal landscape is essential in order for art and heritage professionals to make informed choices regarding the art and heritage for which they are stewards.

Copyright gives authors, artists and others the right to exclude others from using their works. Federal rights arise automatically when a protect able work has been fixed in a tangible medium such as a floppy disk or hard drive. A poem or picture is as much protected on a disk as on a piece of paper or canvas.

Limits Copyright is the right to exclude, not to publish.

Copyright does not give its owners the right to sell or distribute, for example, libelous email messages. In addition, of course, works that are obscene or invade another's rights of privacy or publicity are not publishable just because they happen to be covered by copyright.

Basic limits to copyright

Although e-mail messages and web pages may enjoy copyright protection, rights are subject to several fundamental limits. For example, only expression is protected, not facts or ideas. Also, later works that merely happen to be very similar (or even identical) to earlier works do not infringe if they were, in fact, independently created. Sources of general information on those topics are listed below.

Commercial uses of another's work are also disfavored. For example, anyone who uses, without explicit permission, others' work to suggest that they endorse some commercial product is asking for trouble! Yet, not all commercial uses are forbidden. Most magazines and newspapers are operated for profit and may not be automatically precluded from fair use.

Licenses implied in fact

Fair use allows limited uses of another's work without approval, but other uses may be approved by implication. For example, when a message is posted to a public email list, both forwarding and archiving seem to be impliedly allowed. It is reasonable to assume that such liberties are okay if not explicitly forbidden. However, when forwarding, archiving or, say, using part of a prior message to respond to an earlier message, be careful not to change the original meaning. No one impliedly authorizes another to attribute to him or her an embarrassing (or worse) message they did not write.