Ian McDonald MA LLB. Ian is a lawyer who specialises in copyright. He was formerly a senior legal officer with the Australian Copyright Council.

26.1 INTRODUCTION

Copyright plays an essential role in any developed sophisticated society. It is the principal tool by which society accords recognition to creativity, innovation and imagination. This is economically expressed awarding the owner of the copyright a range of exclusive rights and powers.

At the end of the day, the rights of copyright are an award for innovation, creativity and risk taking. It is recognition that both the culture and the economy of our community are dependent on encouraging and fostering these characteristics.

Copyright is one of the basic tools of every museum, gallery, library and archive. Indeed, such institutions are not only holders of large quantities of copyright material, they are, themselves, great users and creators of copyright material. As an owner, it is important for collection managers to understand the basic principles of copyright, so that they may better utilise and protect the institution’s resources and assets. As a user, it is important so that the institution can better fulfil its public exhibition and education purposes.

The change from closed fist to open palm

In just a generation, we have seen great changes in the purpose and function of collecting organisations. We have seen a steady (or perhaps unsteady) move by which collection, conservation, protection, and the carrying out of closed research has evolved to embrace public access, public education and indeed public pleasure and entertainment.

One might observe that purpose and function have always varied between the collecting sectors: a hundred years ago, although the cant may have included fine words about the public benefit of collections, the reality was that many were operated as fiefdoms in which public access and participation was only modestly encouraged. Those attitudes are unrecognisable in the modern museum or gallery. For their part, archives, because of their very nature and purpose, were seen as repositories of the public record; whereas now, archives have a much greater, and developing, focus on public access and education. In contrast to other collecting institutions, libraries have always been oriented towards public service and access.

These changes have an important effect on the attitude of collection managers towards copyright. There is an often-expressed annoyance or frustration that copyright inhibits the ability of the collecting institution to fulfil its public access and educational purposes. This is understandable but needs to be taken in a wider context: the system of copyright is one of competing public interests. There is a public interest in granting copyright owners certain control over their intellectual property just as there is a public interest in granting limited exclusions and exceptions in favour of those who need access to the copyright material for acknowledged public purposes. The public interest in, say, a library, gallery or museum making its collection available on-line is not inherently more important than the public interest in protecting the economic rights awarded to copyright owners. It is a question of balance.

The change as to the identification and management of assets

This evolution in thinking about collection functions has been reflected in the way that we identify, capture, administer and exploit the assets of the organisation. Every collecting institution is a repository of vast opportunities to encourage thinking and to promote, commercialise, publish and disseminate knowledge. But to do this effectively, it must rethink the way that it defines its assets: the modern institution has its accessioned collection but, just as important is the value in its name and reputation and in the ideas, knowledge, creativity and public reputation of its professional staff. It is these things that confer or enhance the value of the collections. These are the invisible assets of the institution. They are off balance sheet. They are part of the intellectual property assets of the organisation but most organisations fail to capture, either properly or at all, the potential value of these assets. Many do not even try to identify them. This is changing rapidly.

The changes imposed by technology

Copyright is also one of the areas of collections management that has been particularly affected by technological changes. The development of digital technologies and the Internet have, on one hand, made collections more accessible to the public and, on the other, have made it more difficult to prevent unauthorised reproduction and distribution of copyright material. The fact remains that computerisation has been probably the biggest change to the way collecting organisations function. Virtually all areas of professional practice are now assisted by computerisation and this is probably the greatest single catalyst for change in the way that we administer, conserve, protect, exhibit and explain our collections.

In spite of its importance, too few collection workers sufficiently understand the law of copyright. Indeed few enough lawyers are competent in it. The aim of this chapter is to provide a basic guidance to the principles of copyright law, and to indicate the kinds of issues and problems that can arise in this area.

An approach to answering your copyright questions

To use this chapter effectively, it is useful to understand the approach taken in setting out the information.

First, the chapter sets out the general principles of copyright. This is basic knowledge for any collection manager. This includes understanding what copyright is; how it comes into existence; what material it affects; how to work out who owns it; and how long it lasts. It is important to replace old and inaccurate rules of thumb with a correct, if basic, understanding of the principles.

Second, the chapter asks: If the material is protected by copyright, what general exceptions exist? The Copyright Act 1968 (Cth) provides a number of general exceptions that permit the use of material when certain conditions are met.

Third, there are a number of special exceptions provided for collecting institutions. These are discussed last because, generally, they only become relevant (a) if an application of the general principles demonstrate that the material is protected by copyright, and (b) the general exceptions do not apply.

In this way, finding the correct answer to a copyright question is like climbing a pyramid. You start by applying the broad principles and work your way up an ever-narrowing path towards the answer.

26.2 WHAT IS COVERED BY COPYRIGHT?

The phrase ‘intellectual property’ includes copyright , patent, trademark and confidentiality. Copyright, the focus of this chapter, is principally about the right to reproduce, publish or publicly communicate. In contrast, patent is a system whereby the patent holder has a monopoly on an invention or novel process; trademark provides a system of protection for names and logos used in connection with the supply of goods or services; and confidentiality provides a non-statutory, case law-based rules to permit confidential information to be communicated without the fear that the confidence (and the value in it) will not be breached, abused or appropriated.

Three independent rights arise from an act of authorship:

(a) The rights that accompany ownership of the atom-based object or “thing” (such as the right to hang it, shelve it, exhibit it, clean it, sell it, protect it, or even destroy it); and

(b) The copyright that arises from putting the concept into a material form. (These are ephemeral, for copyright is just an intellectual construct. We know that it’s a noun – but who has ever touched one?); and

(c) The moral rights of the author – rights that are granted by the Copyright Act 1968 (Cth) that are distinct from copyright personal to the creator and are inalienable.

For example, if an article is written or a canvas painted, A may own the physical thing, B may own the copyright in the work, and C, the moral rights in the work. The collecting organisation may own the object but not the copyright in the object, may own the copyright without owning the thing itself, or may own both. In any event, it will never own the moral rights.

Copyright protection is given to two classes of things:

(a) ‘Works’ (including artistic, musical, literary and dramatic works).

(b) ‘Subject matter other than works’ (for example sound recordings, cinematograph works, broadcasts and published editions).

The latter, are a quite modern addition to the copyright armoury. They are a result of publishers, record companies and film studios lobbying governments to invent a whole new species of copyright material on the basis that they invest enormous sums and should have the benefit of rights that will allow them to protect and profit from that investment. It illustrates an interesting divergence in the development of copyright: for ‘works’, media convergence has required that the technology or media (used to embody a creative idea in material form) is becoming increasingly irrelevant. In contrast, the laws relating to ‘subject matter other than works’ remain steadfastly focused on individual media or technologies.

26.3 WHAT IS THE SOURCE OF COPYRIGHT?

Copyright is a creation of statute. The first Australian copyright legislation was enacted in 1905 and came into effect in 1907. It was short-lived. In 1912, the Australian Federal Government enacted a further Act that adopted the UK legislation. In a startling exhibition of colonial dependence by a newly independent country, Australia declared the British legislation to be in effect throughout Australia. It remained in force in Australia even after it had long been repealed in the United Kingdom. Indeed, it stayed in effect until it was eventually repealed and replaced in 1968. These days, copyright protection in Australia is provided by the Copyright Act 1968 (Cth) (as updated from time to time).

In addition, Australia belongs to a number of international treaties, which dovetail into the Australian laws. These treaties provide Australian copyright owners with reciprocal copyright protection in other treaty countries.

26.4 FORMALITIES NECESSARY TO PROTECT WORKS

Requirements

The Copyright Act 1968 (Cth) provides automatic protection for ‘works’. No formalities are necessary provided the person claiming copyright meets the criterion of being a “qualified person”. As soon as an idea is given a ‘material form’, copyright exists in it. It is automatic.

Although no formalities are necessary for copyright to subsist, it can still be worthwhile to include the commonly seen formula: © name and the year that the work was first published. It is a useful reminder to would-be users that the material is copyright but is not a requirement for the subsistence of copyright. The roots of the copyright notice lie in legal and diplomatic history: although most developed countries had long been members of the Berne Convention (which provides a formality-free approach), the United States did not sign the Berne Convention until 1989. Rather, it was a member of the Universal Copyright Convention (‘UCC’), which requires that every published copy of the copyright material must bear the copyright notice if it is to qualify. Until the United States joined the Berne Convention, if one wanted protection in the US, formal registration of the copyright at the Library of Congress and use of the copyright notice, was essential. Much US material fell into the public domain in this way.

Many people are mystified by the P symbol on records. The P symbol stands for ‘Phonograph’ and comes from the Rome Convention (yet another treaty!). It came into force in 1964. This was the first time sound recordings were given copyright recognition in an international treaty. Again, all published copies should have a P symbol, the year of first publication and the owner or the person who published the record itself (not always the same person).

In Australia, the principal purpose of the copyright notice is simply to remind would-be users that the work is subject to copyright and that permission is required. It is not a requirement for the subsistence of copyright.

Essentially, copyright in Australia is automatic and it is free.

26.5 REQUIREMENTS OF COPYRIGHT

A ‘work’ will be the subject of copyright, from the moment of its creation, if it satisfies the following conditions:

• it has been reduced to a ‘material form’;
• it is an artistic, musical, literary or dramatic work;
• the author is a ‘qualified person’; and
• the work is ‘original’.

Each of these requirements needs some explanation.

What is ‘material form’?

Copyright only protects a work that is in a ‘material form’. Copyright does not protect ideas; rather, it protects the physical form in which those ideas are expressed. So it does not protect the idea or subject matter of work, only the representation itself. Thus the idea of painting a soup can is not protected, but a painting of it would be.

The work need not be a physically separate or discrete entity; it can be integrated into a larger structure or object. If so, it must be sufficiently identifiable to attract protection.

It is not vital that the material form be permanent. After all, what is permanent? Thus if a work, such as Dobell’s portrait of Joshua Smith or Sutherland’s portrait of Sir Winston Churchill were destroyed, the copyright would continue to protect the exclusivity of the reproduction rights. Nevertheless, the question of when a form is sufficiently substantive to qualify as ‘material’ has remained a point of discussion in the case law. For example, is a vapour sculpture (made by an artist using a jet engine) ‘material’? Some would say not because it is insufficiently substantial. But what of an ice sculpture? It employs the same substances but lasts slightly longer. All would surely say, ‘Yes’. What then is the difference? Merely the length of time that the work exists? Given that every physical object is in a constant state of decay, the question is ‘what degree of substantiality is required?’ From vapour to ice to stone – it is only a matter of degree.

The subtleties of the ‘materialness’ issue are further demonstrated by holograms and laser light sculptures. The eye sees the work but the hand cannot feel it; yet, with a movement, the hand can destroy it. The work in any traditional sense exists only in the eye of the individual viewer. In this instance the right question to ask is not ‘How long did the work exist?’ but rather, ‘What is the work?’ In this case, the real work is the photographic plate that is the basis of the holographic projection – rather than the projection itself. (Just as it is with film: it is the film that is protected, not merely the image projected from it.) The question of whether a transitory event such as a firework display could be protected both as an artistic work and as a dramatic work under the Act was raised when Channel Nine sought to prevent the ABC from filming and broadcasting certain elements of the 1999/2000 New Year firework display in Sydney.

What is a ‘work’?

The word ‘work’ in the Act is defined as meaning ‘a literary, dramatic, musical or artistic work’.

1. LITERARY WORK

The Act provides no definition of ‘literary work’ although the Act states that it includes: ‘(a) a table, or compilation, expressed in words, figures or symbols; and (b) a computer program or compilation of computer programs.’ There is a considerable quantity of case law as to what amounts to a literary work. Where the proposed entity is a novel or a poem, it is easy to identify. Where the proposed entity is a betting slip or a recipe or a newspaper advertisement, the results are not so readily intuitive.

There is no requirement that a literary work be ‘literary’ in character: a train timetable and the lyrics to a song are as readily protected as a novel. Nor does a literary work contain any prescribed number of words: While we can safely say that a single word cannot be a literary work and that titles alone would not usually be sufficiently substantial, there is no doubt that a haiku would suffice.

In 2010 this issue came before the courts when a newspaper sought to prevent an abstracting service using its headlines. This was the first case to fully examine whether headlines were sufficiently substantial to attract copyright protection. The court held that: ‘Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works.’

2. MUSICAL WORK

Nor is the phrase ‘musical work’ defined. It would appear that the legislators assume that anyone can tell music when they hear it. Style, genre, length (and volume) are irrelevant. The Act doesn’t legislate as to how many musical notes it takes to make a musical work.

3. DRAMATIC WORK

Similarly, a ‘dramatic work’ is not defined except that the Act states that it includes ‘(a) a choreographic show or other dumb show; and (b) a scenario or script for a cinematograph film; but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.’ In one case it was suggested that there was a minimum requirement of some type of performance, whether by human beings or by characters, and something sufficiently predetermined as to plot, choreography, script, characterisation or interaction between characters.

4. ARTISTIC WORK

By contrast, an ‘artistic work’ is defined in the Act as follows:

• a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
• a building or a model of a building, whether the building or model is of artistic quality or not; or
• a work of artistic craftsmanship.

An artistic work is given a broad definition and can include very simple designs, such as the design for a flag, or a logo for a company or event. The Act also provides that:

• A ‘drawing’ includes a diagram, map, chart or plan;
• An ‘engraving’ includes an etching, lithograph, product of photogravure, woodcut, print or similar work, not being a photograph. Arguably it also extends to cover the block or plate that is used to produce an engraving or similar work.
• ‘Photograph’ means a product of photography or of a process similar to photography, other than an article or thing in which visual images forming part of a cinematograph film have been embodied, and includes a product of xerography.
• ‘Sculpture’ includes a cast or model made for the purposes of sculpture, medallions and friezes. It can also include found objects that are installed or assembled as a sculpture, and objects created for a purpose that is not solely artistic, such as models of mundane objects used for an advertising campaign.

With paintings, drawings, engravings and photographs, the work need be neither skilful nor artistic, but this is not the case where the work is classified as one of ‘artistic craftsmanship’. There is no statutory definition of ‘artistic craftsmanship’ and until 2007 there was considerable uncertainty as to what constituted ‘artistic craftsmanship’.

The work of ‘artistic craftsmanship’ must actually be one of ‘craftsmanship’; something demanding a particular skill or training. This is now interpreted quite generously and even includes situations where the work has been produced by machine rather than by hand. In the Cuisenaire case, it was alleged that the defendant was breaching the plaintiff’s copyright in an educational tool for the teaching of arithmetic. The ‘material form’ consisted of small wooden rectangular blocks that were variously coloured. The court held that no copyright existed in the blocks because they were neither ‘artistic works’ (see the definition above) nor ‘works of artistic craftsmanship’. The reasoning for the latter finding was: (a) they were not works of ‘craftsmanship’ in that no special skill or training was necessary to cut out simple shapes of wood, and (b) they were not intended to be ‘artistic’.

‘Artistic craftsmanship’ is not a synonym for ‘hand made’. It does not preclude items that have been made by machine.

The cases have long required that such works both be works of ‘craftsmanship’ and ‘artistic’ and there has always been tension around the weight to be accorded to a maker’s desire to design something beautiful and the constraints imposed by utility of function. In Burge v Swarbrick, the issue was whether a ‘plug’ or mould for a racing boat was capable of being a work of artistic craftsmanship. The High Court held that a work could be on of artistic craftsmanship notwithstanding that its form was partly dictated by functional considerations: beauty and utility are not mutually exclusive. The court distinguished between designs that were determined by functional requirements (such as the physics of yacht speed or the shape of a horse shoe) and designs that were unaffected by function (such as wallpaper or a wrought iron gate). Here, the speed of the racing yacht was more important than aesthetic considerations and, therefore, the yacht was not a ‘work of artistic craftsmanship’.

What is a ‘qualified person’?

Even if something has ‘material form’ and is a ‘work’, in order to attract copyright protection a ‘qualified person’ must have created it. Who is such a person can be a complicated legal question but it is not one that will concern the majority of readers; anyone who is either a citizen of or a resident of Australia at the time the work was ‘made’ or reduced to its material form (which includes when the work was first stored if it is a digital work) is a ‘qualified person’. To qualify as ‘resident’ the person need not be formally a ‘permanent resident’; rather, a ‘qualified person’ need only be ordinarily resident in Australia.

What is ‘originality’?

Irrespective of the date of its creation, a work must be ‘original’ if it is to be protected by copyright . This does not mean that the idea behind the work must be novel, for copyright does not protect ideas but rather the material form in which those ideas are expressed. Thus, in the unlikely event that two artists working absolutely independently produced identical works, both would be ‘original’ for the purposes of the Act and both would be capable of attracting copyright protection. For example, if two artists independently paint a picture of Ayres Rock and by some extraordinary chance produce identical images, both works would be protected. Neither would be novel but both would be original. This is because the ‘originality’ of the works flows from the independent application of skill by their authors. The amount of skill, labour and experience necessary is not defined in the Act or the cases, but one authority has suggested that it must be more than ‘negligible’.

The requirement of ‘originality’ has two related aspects. The first is that the creation of the work has required some independent skill on the part of the author. The second aspect requires that the work should not be a substantial copy of another. ‘Originality’ is always a question of degree. It is not merely a matter of ‘changing a line here or there’. If a person copies a substantial part of another artist’s work but changes the odd line or colour, not only will it not be sufficiently original to attract protection but further, the first artist will still be able to show a causational link between the works, and thus establish that the copyright of the original piece has been infringed. Conversely, an adaptation or modification of a previously existing image or pattern may none the less satisfy the requirement of ‘originality’ even if it does infringe the copyright of that prior image. This is a fraught area for designers, commercial artists and illustrators. Often the brief from their client starts with an example of an existing work and the instruction: ‘We want something that looks and feels like this.’ Although you will hear many rules of thumb about how much you can use, the only thing they have in common is that they are wrong. There is only one test: Has there been a reproduction of a substantial portion of the work? But more of this later.

In the 1981 Archibald Prize competition, considerable controversy arose when it was discovered that the winner, Eric Smith, had painted the Komon portrait from a photograph. Although the publicity of the time concerned whether the painting was ‘from life’ as required by the rules of the competition, the circumstances are also interesting from a copyright point of view. The original photograph was clearly a copyright work. The painting was a reproduction of at least a substantial portion of that work. Accordingly, (unless the artist had obtained a licence to use the photograph in this way) the painting was probably a breach of the copyright in the photograph and thus exposed the artist to a potential claim for damages.

This, however, does not prevent the portrait from attracting copyright protection in its own right. Although the artist used the photographic image as the basis of his painted work, he clearly used considerable skill, labour and experience in its production. The exercise of these personal attributes was sufficient to make the work ‘original’ for establishing the subsistence of copyright. Strictly, there is no reason why a work cannot be both an infringement of copyright in an earlier work, and, at the same time, an original work in its own right.

Related to this is the question of whether a compilation of works that are themselves copyright can itself attract copyright protection. For example, a collection of essays in an exhibition catalogue, or a website, where the works have been arranged in a particular way and accompanied by commentary, can itself be protected, over and above the copyright in the individual works. Provided a sufficient degree of skill and labour has gone into the compilation and presentation of the compilation, and the individual authors who contributed to the making of it can be identified, it may be protected.

Similarly, although a work from a collection may not be protected because the copyright in it has expired, reproductions of the work may be protected because the ‘originality’ threshold is a low one in relation to photographs. On a practical level the museum can prevent visitors from taking photographs of works in the gallery and can issue its own reproductions of that work that are themselves copyright protected.

26.6 WHAT ARE THE RIGHTS OF COPYRIGHT?

Because copyright arises purely from each country’s national laws there are differences from country to country. Although the actual rights which are recognised may differ, because of the network of international treaty obligations, the principles in most countries are reasonably common.

In Australia, the specific rights of copyright vary according to the subject matter:

(i) Literary, dramatic or musical works

In relation to literary, dramatic or musical works, copyright is the exclusive right to do all or any of the following acts:

• to reproduce the work in a material form;
• to publish the work;
• to perform the work in public;
• to communicate the work to the public;
• to make an adaptation of the work;
• to convert a work into a digital or other electronic machine-readable form;
• to rent recorded music and computer programs;
• to make a sound recording or cinematograph film of the work.

All of these things require the permission of the copyright owner.

(ii) Artistic works

In the case of an artistic work, copyright is the exclusive right to do all or any of the following acts:

• to reproduce the work in a material form;
• to publish the work;
• to communicate the work to the public.

Note that there is no ‘exhibition’ right. Exhibition does not require the permission of the copyright owner.

(iii) Sound recordings

In relation to a sound recording, copyright is the exclusive right to do all or any of the following acts:

• to make a copy;
• to cause it to be heard in public;
• to communicate it to the public;
• to rent it;
• to convert it into a digital or other electronic form.

(iv) Films

In relation to a cinematograph film, copyright is the exclusive right to do all or any of the following acts:

• to make a copy;
• to show it in public;
• to communicate it to the public;
• to convert the film into a digital or other electronic form.

(v) Television, cable and sound broadcasts

In relation to a television broadcast or sound broadcast, copyright is the exclusive right:

• in the case of a television broadcast in so far as it consists of visual images – to make a film of the broadcast (or a copy of such a film);
• in the case of a radio or television broadcast – to make a sound recording of the broadcast (or a copy of such a sound recording); and
• in the case of a radio or television broadcast – to re-broadcast or communicate it to the public.

(vi) Published editions

Copyright, in relation to a published edition of a literary, dramatic, musical or artistic work, is the exclusive right to make a facsimile copy of the edition.

The right to reproduce

Although the term ‘reproduction’ is used a lot when talking about copyright, it is commonly misunderstood. Reproduction may take many forms. Although it is most usually used as a synonym for ‘copy’ it actually has a wider meaning in copyright law, for the copy does not have to be exact.

Reproduction need not be a copy of the whole work, merely a ‘substantial part’ of it. For example, using four notes from a piece of music would not usually be thought of as a ‘substantial portion’, but in the case of, say, the opening four notes of Beethoven’s Fifth Symphony, the answer would be different.

Reproduction need not be in the same medium. It need not be in the same dimension. It need not be in the same form. If one takes a photograph that is in copyright from the collection and, without permission, prints it on card for sale in the institution’s shop, the copyright owner’s exclusive right of reproduction is infringed. Similarly, digitising an artwork, a literary or a musical work without permission of the copyright owner, (for example by scanning it and storing it on a hard disk) would constitute an infringement. This is so even if a two-dimensional work is reproduced in a three-dimensional version, and vice versa.

A commonplace example of this right in practice occurs where a collecting institution wishes to reproduce a copyright work from its own collection in an exhibition catalogue. It must obtain the permission of the copyright owner. Accordingly, to minimise the pain of chasing permissions, it is good practice to ensure that the acquisition documentation states:

• whether or not the work is copyright;

• if so, who is the owner of copyright;

• when the copyright expires;

• and if the lender, donor or vendor of the work is also a copyright owner, whether they give the museum a licence to reproduce the work for, say, non-commercial use within the museum and the right to publish it in catalogues (which presumably will be for sale).

5. CONTROL OF ACCESS

Where the collection owns a unique work but not the copyright in it, the institution may still effectively control the making of reproductions. Although it does not have the right to make reproductions itself, it can prevent the person who does own the copyright from having access to the work for the purpose of making transparencies or other copies of the original. Refusing physical access in effect hobbles the copyright owner. Accordingly, in order to exploit its exclusive rights, the copyright owner must either make the reproduction before losing possession of the work or get permission of the owner to access the work for such purpose. Access to the original work is not one of the rights of copyright.

The right to publish

In relation to the exclusive rights enjoyed by a copyright owner, the terms ‘publish’ and ‘publication’ have a specific meaning. Essentially it means, the right to make something public for the first time. A literary, dramatic, musical or artistic work, or an edition of such a work, is ‘deemed to have been published if, but only if, reproductions of the work or edition have been supplied (whether by sale or otherwise) to the public’. For example, it might include placing an image of the work on the Internet, where copies can be viewed or downloaded.

The Act provides for a number of situations that do not to constitute ‘publication’:

• mere exhibition of an artistic work;

• (of a sculpture) the public supply of photographs or engravings of the sculpture; .

• the performance of a literary, dramatic or musical work;

• the supply (whether by sale or otherwise) to the public, of records of a literary, dramatic or musical work;

• the construction of a building (or of a model of a building);

• (of a building or a model of a building) the public supply of photographs or engravings of the building or model.

For a musical composition, publication may be by means of sheet music or records; for an artistic work it may be by the making and selling of limited edition prints or by reproducing it in a catalogue.

A film is ‘published if, but only if, copies of the film have been sold, let on hire, or offered or exposed for sale or hire, to the public’. Similarly, a sound recording is ‘published if, but only if, records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public’.

The right to communicate to the public

Communication of a copyright work to the public requires the permission of the copyright owner.

This right came into effect in 2001. It was a major development in Australian copyright law. The new right not only includes the right to ‘electronically transmit’ but also to ‘make available on-line’.

This right is technology non-specific but certainly covers free-to-air television, cable, radio, email and the Internet. It also covers Intranets, both within an individual institution and with partnering institutions.

Whereas the old Act did not contemplate the Internet, email and Intranets, the new right provides specifically for ‘on-line’ distribution and, because the right is ‘technology neutral’, it will continue to operate and withstand the semantics and processes of scientific innovation that would outdate a definition based on existing technology.

Importantly, the right covers communications not only within Australia but ones originating here and received overseas. Australian copyright owners can thus seek to prevent the unauthorised communication of their works offshore. For example, the right can be used to stop an Australian based website from making digital material available not just in Australia but also anywhere in the world.

In brief, the new right to ‘communicate’ works to the public is extremely broad. It clarifies and reinforces the basic and exclusive right of copyright owners to control the use of their work in the digital environment.

26.7 OWNERSHIP OF COPYRIGHT

Introduction

Understanding how to work out who is the owner of copyright is one of the core skills of collection utilisation. This is not a matter of intuition. Getting the right answer requires the application of quite complex principles but once applied, you know who is capable of granting the permissions that you require.

As you will see from this section, even when people such as lenders and donors say that they own the copyright, reliance on such assurances is dangerous. Few owners have the knowledge to make such an assertion. This is not an area where you can say, ‘I think it is, therefore it is.’ You must apply the principles.

The impact of contract

The sections that follow, describe who will own the copyright in the work if no specific agreement is made between the owner and the other party (such as the employer or the client). However it is very important to remember that the statutory provisions as to the ownership of copyright are all subject to amendment by contract. When you are trying to determine the true ownership of copyright the starting point is to understand the statutory position and then ask whether that position was varied by contract. For example, it is common for employment agreements to contain provisions that vary the general rules and that change the statutory position by providing the employee with carve-outs or particular rights. Similarly there frequently clauses in commissioning agreements that vary some aspects of rights ownership as conferred by the Act.

Artistic, musical, dramatic and literary works – the general rule

As a rule, the ‘author’ of a work is the first owner the copyright in it. The Act does not define ‘author’ (except with regard to photographs) but the cases show that the ‘author’ is the person who gives physical form to the creative idea. It is not necessarily the person who thought of the idea; rather, it is the person who transformed that idea into a material form.

Where the focus of the enquiry is ‘subject matter other than works’, the first owner of copyright is generally the ‘maker’. The question, ‘who is thy maker?’ is discussed below.

There are exceptions to this general rule (such as those relating to employees and the Crown) and these will be discussed later. For the moment it is important to understand that the general rule – and indeed any of the ownership provisions of the Copyright Act 1968 (Cth) can be altered by contract. Accordingly, even where the Act provides the general rule, you must ask whether there was any agreement that might have varied the standard position.

Musical works

6. THE GENERAL RULE

The general rule is that the ‘author’ is the owner of copyright. The composer is the author of the music. The lyricist is the author of the lyrics.

The lyrics are protected as a literary work and the music as a musical work. If their authors are different people, then separate permissions will have to be obtained from each if you want to reproduce the song.

Even if a composer is commissioned to write the music, he or she still retains the copyright. However, where composers are actually employed to write songs (such as the ‘Tin Pan Alley’ composers earlier last century in New York), the employer owns the copyright. Without knowing the facts surrounding how a work came into existence, it can be difficult to determine whether it was created as a result of a commission or as part of an employment. For example, original music in a television commercial might have been written in-house by an employee of the jingle house. Alternatively, it might have been commissioned from a freelance composer.

7. TRACKING DOWN THE OWNER

Where the work has been released on a record, CD or DVD, the label information is the starting point. The label usually will tell you the name of the composer (and any lyricist) of the track and the publisher of the composition. The publisher represents the author and should be your starting point. With the constant ebb and flow of companies and catalogues within the music industry, the label may not represent current ownership. If the named publisher no longer represents that composer, it will tell you. If Google does not give you a contact, you can contact the Australasian Performing Rights Association (APRA). It represents all of the Australasian music publishers and 99.9% of the professional composers.

If the label says ‘Copyright Control’ this generally means that there is no publisher involved and the rights are retained by the writer. Again, this is not infallible as the writer may have done a deal after the date of the release of the recording. In such cases, go to APRA.

Literary works

1. THE GENERAL RULE

The basic rules concerning the ownership of copyright in literary works are the same as those relating to musical works: the owner is the author, even where the work is commissioned; but if a person writes something in the course of employment, the employer will own the copyright.

As a consequence of this, personnel who write learned books and articles should clarify with their employers, exactly who is to control the copyright of their works. This is a potential industrial relations landmine, for most writers of academic material would be horrified if they knew that their employer may have the right to claim the copyright in their work.

2. TRACKING DOWN THE OWNER

The best lead in tracking ownership of material that has been published in book form is to examine the copyright information at the beginning of the book. This will usually tell you whether the publisher is the owner of the content or whether rights in the literary work have been retained by the author.

Where the publication is older, the publisher information is not very reliable. Many publishers have been taken over, catalogues are sold, rights expire and publishers wind up business. Nevertheless, contacting the publisher is the first prudent step. If an Internet search does not give you the required contact information, then contact the Copyright Agency Limited. This organisation represents all professional publishers and a large proportion of authors.

Remember that many literary works in fact are accompanied by other copyright works such as licensed photographs, diagrams or quotations. To reproduce these you will need to get permission from all of the rights owners not just the principal author. Rights ownership of these will usually be described in the published work and if not, the owner of copyright in the principal work will usually be able to provide contact details.

Exceptions affecting artistic, musical, dramatic and literary works

There are some important exceptions to the general rule. These relate to commissioned works and work made pursuant to an employment agreement.

1. COMMISSIONS FOR PHOTOGRAPHS

(vii) Photographs taken before 1 May 1969

In the case of photographs taken prior to 1 May 1969, the copyright vests in the person who owned the material on which the photograph was taken.

(viii) Photographs taken after 1 May 1969 but before 30 July 1998

Where the commissioned photographs were taken between 1 May 1969 and 30 July 1998, the copyright is owned by the commissioning party regardless of the purpose for which the photograph was taken.

(ix) Photographs taken after 30 July 1998

The law changed again on 30 July 1998. From that date, the rule for commissioned photographs came into line with other artistic works – the author of the work (the photographer) is the owner of copyright. The only exception to this general rule is a sensible one: Where the photographs are taken for a private or domestic purpose (such as family portraits or wedding photographs), the commissioner/client owns the copyright.

2. COMMISSIONS FOR ENGRAVINGS

If the commissioned work is an engraving, the commissioning client owns the copyright. For example, an artist who commissions a person to make plates for print making, owns the copyright in the plates. Plate makers often control this by keeping physical possession of the plates. This doesn’t give them any copyright in the plates but creates an effective barrier to making reproductions. Accordingly, when seeking to acquire such rights the right person to approach is most likely to be the artist not maker of the plates.

3. COMMISSIONS FOR PORTRAITS

If the commissioned work is a drawing or painting of a portrait, the commissioning party owns the copyright.

(x) The definition of portrait

The Act contains no definition of ‘portrait’ and, although this may be surprising to artists, the courts have not really defined it either. One commentator has suggested that ‘a portrait is any painting or drawing, the principal purpose of which is in the representation of a person or animal in whatever style of artistic expression’, and certainly the courts seem to have developed a broad interpretation of the term. An example of this broad interpretation is provided by the extraordinary English case of Leah v Two Worlds Publishing Co Ltd in which a father asked an artist to paint a likeness of his dead son – by means of extrasensory perception. In a subsequent law suit brought by the artist against the publisher of a periodical entitled Two Worlds for the infringement of his copyright, the judge held as follows:

‘Engraving, photograph or portrait’ is a curious collocation of words: one would have expected the third word in that grouping to be something like ‘painting’, because engraving is a method of production, and so is photography; and it would seem that ‘portrait’ covers all kinds of pictorial representation, however produced. I am not sure that it is necessary to express a concluded view about the matter, but I should have thought that on the whole this was a portrait, a portrait produced by the mental process of the artist, and intended to represent a deceased person as that person was when living; and that it is none the less a portrait because the materials that the artist used were entirely subjective.

The definitional problem also arose in the famous case of Attorney-General v Trustees of National Art Gallery of NSW & Dobell . In this action an injunction was sought, restraining the trustees of the gallery from paying the 1943 Archibald Prize monies to Dobell. Also sought was an order requiring the trustees to carry out the terms of the trust. Obviously, this was not a copyright case, but nevertheless it did focus upon the definition of a portrait. The following is an extract from Justice Roper’s judgment:

The word is an ordinary word of the English language and its meaning has to be ascertained accordingly. … From the context in which it is used it is clear that the testator was referring only to a particular type of portrait namely one of a human being and painted by an artist. Considered alone the word has a wider meaning and would include certain forms of sculpture, certain types of photographs and certain other methods of representation all of which the testator has himself excluded and which require no further consideration. With the assistance of dictionaries and the many works to which I have been referred by counsel in this case, I think that the word ‘portrait’ as used in this will, incorporating in its meaning the limitations imposed by its context, means a pictorial representation of a person, painted by an artist. This definition connotes that some degree of likeness is essential and for the purpose of achieving it the inclusion of the fact of the subject is desirable and perhaps also essential. The picture in question is characterised by some startling exaggeration and distortion clearly intended by the artist, his technique being too brilliant to admit of any other conclusion. It bears, nevertheless, a strong degree of likeness to the subject and is I think, undoubtedly, a pictorial representation of him. I find as a fact that it is a portrait, within the meaning of the word in this will, and consequently the trustees did not err in admitting it to the competition.

Further, his Honour refused to state an opinion on the claim that the work was a ‘caricature’ or a ‘fantasy’. He said, ‘If it could be so classed that would only establish to my mind that the fields are not mutually exclusive, because in my opinion it (the work) is in any event properly classed as a portrait’.

4. WORKS CREATED BY EMPLOYEES AND APPRENTICES

Where a work was created under a contract of service or apprenticeship, the employer owns the copyright in any work done by the employee pursuant to that contract. This is particularly important for commercial artists and photographers, designers, curators, text writers, jingle writers and the like, who are often employed.

Had Andy Warhol painted his soup can in the course of his employment with an advertising agency, the copyright in it would have vested in his employer and the artist would have made nothing from the thousands of reproductions that were made of the work. In contrast, if someone creates a work in his or her own time, outside the scope of employment, the copyright would vest in the employee.

To determine who owns the copyright in these cases there are two essential questions:

• Was the person an employee?
• If so, were the works created in pursuance of the employment?

Neither can be assumed. In many situations the person who created the work did so as an independent contractor rather than an employee. For example many architects retain contractors to work on projects and unless their contract specifies that the company will own the copyright in their work, the usual rules apply and the contractor as the ‘author’ of the work will own the copyright.

The second issue is to determine what is meant by the phrase ‘in pursuance of the terms of his or her employment’. Sometimes people will claim ownership of copyright because they authored the work ‘in their own time’. That is not the issue. In a recent case, the Federal Court said that the appropriate question to ask is: ‘… did the employee make the work because the contract of employment expressly, or impliedly, required or at least authorised the work to be made?’ Looked at this way, the issue cannot be determined by looking at when the work was created but rather by looking at the overall terms of the contract of employment.

5. SPECIAL RULES FOR EMPLOYEES OF NEWSPAPER, MAGAZINE OR OTHER PERIODICALS

(i) Pre 1 May 1969

If the work was created pursuant to an employment agreement with a newspaper, magazine or periodical before 1 May 1969, the proprietor owns the whole copyright. The only limitation is that the author has a right to restrain the owner from using the work in any way other than publication in a newspaper, magazine or similar periodical. The author has no right to use the material in any way. Rather, he or she has the right to supervise and limit the use made of it by the proprietor.

(ii) Post 1 May 1969 to 30 July 1998

Where an author made a literary, dramatic or artistic work between these dates, the publisher owns all copyright insofar as it relates to publication of the work in any newspaper, magazine or periodical, broadcasting the work, or reproducing it for the purposes of publication in the newspaper, periodical or broadcast. Apart from these rights, the employee owns the copyright. For example an employed journalist would own the right to publish a collection of her articles in a book and an employed artist would be able to publish postcards of his illustrations.

(iii) Post 30 July 1998

The law changed again in the late 1990s as the role and importance of the digital environment became obvious to newspaper publishers. If the work was made on or after 30 July 1998, for inclusion in a newspaper magazine or journal, the employee or author owns only the right to control photocopying and book publication and the proprietor owns all other rights (including all other forms of commercialisation and digital rights).

Sound recordings

Although we usually think of sound recordings as musical recordings, they actually cover a much wider range of material. For example, where the collecting institution records a speech or panel discussion given in the course of a public education program, that recording comes within this section.

1. THE GENERAL RULE

The general rule is that the copyright in a sound recording is owned by the maker of the recording. And who is the maker? There is no statutory definition but it is generally accepted that the ‘maker’ is the person who made the arrangements and paid for the master recording to be completed. Note that the focus is on who made the original master sound recording, rather than on the records that reproduce that master. After all, the record is just a copy of the master.

2. THE LIVE PERFORMANCE EXCEPTION

Where the sound recording is of a live performance, the general rule is a little more complex: the copyright is shared by the maker and the performer. Although the most common ‘live performance’ recordings are of musical works the net is much wider. The Act defines ‘live performance’ as:

(a) a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or

(b) a performance (including an improvisation) of a musical work or part of such a work; or

(c) the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

(d) a performance of a dance; or

(e) a performance of a circus act or a variety act or any similar presentation or show; or

(f) a performance of an expression of folklore;

being a live performance, whether in the presence of an audience or otherwise.

So then, who is ‘the performer’? The Act defines this as ‘each person who contributed to the sounds of the performance’. If a person contributes to the sound, whether the drummer or the triangle player, that person is a ‘performer’.

To track down the copyright owner the first step is to contact the recording company. Sometimes the label copy will give you some clues. Sometimes though, recordings are made by one record company and licensed to another (for example, by an Independent which is tied to a Major) and these are a bit more complex, as copyright ownership will be determined by the terms of the contract between the label and the Major that is funding it. The company on the label will know the details of copyright ownership and will be able to give you the information you require.

If the collecting institution is a maker of sound recordings (say, as part of its public education program or an oral history project) it is important that its documentation acquires the rights from the ‘performer’ that permit it to use the recording. It is useful to adopt the same approach as that taken by music record companies: they get an assignment or licence of the performer’s rights in their recording contract. Similarly, the collecting institution should include a provision in its agreements with ‘performers’ that will allow the institution to use the recordings without having to go back to the performer. Although such permissions can be absolute, most institutions will specify the intended purposes and media. One of those purposes would usually include communication through the institution’s web site.

Published editions

The publisher of the edition owns the copyright in the published edition of a literary, musical, dramatic or musical work. Thus, if two institutions decide to co-operate in the mounting of an exhibition and a curator from one is asked to write an article for the catalogue whilst the other institution agreed to arrange and pay for the publication of the catalogue, the first museum would own the copyright in the article and the second would own the copyright in the published edition.

Joint authorship

Joint authorship exists where a work ‘has been produced by the collaboration of two or more authors and (is one) in which the contribution of each author is not separate from the contribution of the other author’.

For example, if two or more people design a mural they would be joint authors and would share the copyright in that work. However, the person who thought up the theme of the mural or the very idea of painting the mural in the first place, would not be a copyright owner unless they had also been one of the artists. Only authors who have actually participated in the creation of a work can share in the joint ownership of copyright in it.

This distinction is important in Indigenous art because it explains why copyright is so unhelpful where the system of cultural control is based on the ownership of the subject matter rather than its material form. Joint authorship relates only to the making of the work. It does not recognise collective or group ownership of a particular story and its associated design under customary law, nor the right of that group to authorise a particular artist to create an artwork based on that story and design.

Crown copyright

The Act provides special powers to commonwealth and state governments (the ‘Crown’). The general principle is that the Crown owns the copyright in any material made by or under its direction. This principle can be amended by contract between the Crown and the relevant author or maker.

It is important to be clear about the legal structure of the collecting institution. As was seen in Chapter 1, some collections are part of the Crown but others, such as the major state and commonwealth collecting institutions are actually statutory corporations. They are established by their own individual statutes: although established by the Crown and controlled by the Crown, the purpose of establishing the institution as a statutory corporation is to create an entity that is distinct from the Crown. Such an institution can sue and be sued in its own name – and it is also independent of the Crown for the purposes of copyright.

26.8 DURATION OF RIGHTS

Introduction

It is important to understand the principles underlying the duration of copyright. If you know that material is out copyright the world becomes simple: you don’t have to worry about whether any exceptions apply and you don’t have all of the problems associated with obtaining permissions.

Working out whether a copyright has expired or not is an everyday task for collection managers. Sadly, it is not easy. The laws affecting duration were changed in 1968 when the new Copyright Act came into effect – and then again in 2005 with the Australia–US Free Trade Agreement (AUSFTA). This is important to acknowledge because many of the old rules of thumb by which you may have lived have changed.

Generally, the AUSFTA extended the fifty-year copyright period to seventy years – but if a copyright had expired by 1 January 2005 when the AUSFTA can into force, it remained expired. Copyrights were not brought miraculously back to life by the introduction of the new, extended copyright periods. So, if something went into the public domain before 1 January 2005, it remains in the public domain. Let’s put that another way: if the author died before 1955, the work is out of copyright.

The following discussion may seem somewhat repetitive but it is worth risking the boredom of the reader so that the logic of the analytic principles is reinforced.

Literary Works

With literary works it is essential to determine whether the work has been:

• published,
• performed,
• broadcast, or
• recorded and those recordings offered or exposed for sale to the public.

For brevity’s sake, it is useful to summarise these uses of the work as ‘public uses’.

(iv) Public uses during author’s life

If public use was made of the work during the author’s life and the author died before 1 January 1955, the work is in the public domain. The fifty-year period expired before the 2005 extension took effect.

If public use of the work was during the author’s life and the author died after 1 January 1955, copyright continues for seventy years from the end of the year in which the author dies.

(v) No public use during author’s life

If there was no public use of the work during the author’s lifetime, the copyright period does not start running until the end of the calendar year in which it is published, performed, broadcast, or recorded and offered for sale. Accordingly, such works can remain in copyright indefinitely.

Where the work was made public posthumously but before 1 January 1955, the work is out of copyright.

Where the pubic use of the work is posthumous but after 1 January 1955, the copyright period runs for seventy years from the end of the year in which the work is publicly used.

Musical works

(vi) Public use during composer’s life

The work is in the public domain if:

• the musical work was published, performed in public, broadcast, or recorded, or if recordings of the work are offered or exposed for sale to the public, during the composer’s life; and
• the composer died before 1 January 1955.

In such a case, the fifty-year period expired before the 2005 extension took effect.

In contrast, if public use of the work (in any of the above ways) occurred during the composer’s life and the composer died after 1 January 1955, copyright continues for seventy years from the end of the year in which the composer dies.

(vii) No public use during author’s life

If the work was not publicly used during the composer’s lifetime, the copyright period does not start running until the end of the calendar year in which it is published, performed, broadcast, or recorded and offered for sale. Accordingly, such works can remain in copyright indefinitely.

Where the work was made public posthumously but before 1 January 1955, the work is out of copyright.

Where the public use of the work is posthumous but after 1 January 1955, the copyright period runs for seventy years from the end of the year in which the work was so used.

(viii) Arrangements

It should never be assumed, just because the composer has been dead for centuries, that the work you wish to use is unprotected: An arranger may have rights, even though the work itself is out of copyright. Making an arrangement of a work that is in the public domain does not give the arranger rights in the work itself – but rather, in his or her arrangement of the work. The arranger is treated as an author and will enjoy copyright in their particular arrangement for the full period of copyright.

(ix) Lyrics

Lyrics are protected as literary works. There have been many mistakes made on the assumption that the period of protection for the musical composition was the same as that of the lyric or libretto.

Dramatic works

(x) Public use during composer’s life

If the dramatic work was published, performed, broadcast, or recorded and offered for sale during the author’s life and the author died before 1 January 1955, the work is in the public domain. The fifty-year period expired before the 2005 extension took effect.

If public use of the dramatic work was made (in any of the above ways) during the author’s life and the author died after 1 January 1955, copyright continues for seventy years from the end of the year in which the author dies.

(xi) No public use during author’s life

If there was no public use of the work during the author’s lifetime, the copyright period does not start running until the end of the calendar year in which it is published, performed, broadcast, or recorded and offered for sale. Accordingly, such works can remain in copyright indefinitely.

Where the public use is posthumous, but before 1 January 1955, the work is out of copyright.

Where the public use is posthumous but after 1 January 1955, the copyright period runs for seventy years from the end of the year of the public use.

Artistic works

If an artistic work was created before 1 January 1955, it is in the public domain. The fifty-year period expired before the 2005 extension took effect.

If the work was created after 1 January 1955, the copyright in it will expire seventy years from the end of the year in which the artist dies.

There are some exceptions to these general rules. In particular, these relate to photographs and etchings.

3. PHOTOGRAPHS

(xii) Taken on or before 1 January 1955

If the photograph was taken on or before 31 December 1955, the copyright expired prior to the AUSFTA coming into force and thus it is in the public domain.

(xiii) Taken after 1 January 1955

Photographs taken after 1 January 1955 enjoy a seventy-year copyright period calculated from the death of the photographer.

4. ENGRAVINGS

Engravings, although defined as artistic works, are treated more like literary works. Again, the fact and timing of publication is important.

(xiv) Where the engraving has never been published

The copyright period does not start running until the end of the calendar year in which publication occurs. An unpublished engraving will remain indefinitely in copyright.

(xv) Where the engraving is published during the engraver’s lifetime

If an engraving was made and published on or before 1 January 1955, it is in the public domain. The 50-year period expired before the 2005 AUSFTA extension took effect.

If the engraving was made and published after 1 January 1955, it benefits from the AUSFTA extension and copyright in it will last for seventy years from the end of the year in which the engraver dies.

(xvi) Where the engraving was first published after the engraver’s death

If the engraving is first published posthumously, the copyright period runs for seventy years from the end of the calendar year in which the work is first published.

Sound recordings

With sound recordings, it is essential to know when the recording was made. With commercially released recordings, this may be found in the liner notes or other notation on the cover (although there are complexities inherent in reworked, re-engineered recordings.)

(xvii) Sound recordings made prior to 1 January 1955

Copyright in sound recordings was first introduced in the Copyright Act 1968 (Cth). When they were given protection, the fifty-year period ran from the date the recording was made. Accordingly, any recording made before 1 January 1955 is in the public domain.

(xviii) Sound recordings made after 1 January 1955

If recorded after 1 January 1955, a sound recording would have still been in copyright at the time of the AUSFTA and therefore it enjoys the extended period of protection. Copyright in these recordings lasts for seventy years and starts to run from the end of the year in which the recording was first published.

Films

It was the Copyright Act 1968 (Cth) that introduced copyright for films. Because of this, it is often said that films made before 1 May 1969 are not protected. This is not quite true. There is little doubt that the individual frames are capable of being protected as photographs. It is also true that whole films may be protected as ‘dramatic works’. This applies where ‘the arrangement, the acting, form or the combination of incidents represented gives the work an original character’. Thus, most commercially released films might reasonably come within this description whereas most home movies would not.

(xix) Films made before 1955

Films made before the Copyright Act 1968 (Cth) came into force could only be protected as photographs or dramatic works. Accordingly, if the film was produced before 1955, any copyright protection has expired.

(xx) Films made between 1955 and 1 May 1969

Films made during this period may still be protected as a series of photographs or as a dramatic work. If the author of the photograph or dramatic work died after 1 January 1955, the film remains in copyright until seventy years from the end of the year of the author’s death.

There is little statutory guidance as to the definition of ‘author’ in this context. It is a question of fact. Where reliance is on the photograph, the author of the photograph is most likely the cinematographer. In contrast, the author of the dramatic work will be either the scriptwriter or the director – depending on who is the person responsible ‘for the arrangement, the acting, form or the combination of incidents represented (that) gives the work an original character’.

Note that in the film business it is important to distinguish between the author and the copyright owner. The film production company cannot itself be an author. In contrast it is almost always the copyright owner because it is standard industry practice to require everyone working on the film to assign all rights to the production company. This is significant because, although the owner of the rights is the person from whom you must get any permission, the identity of the owner is irrelevant to the duration of the rights. It is the date of death of the author that is crucial.

(xxi) Films made after 1 May 1969

Films made after that date are protected for 70 years from first publication.

Television and sound broadcasts

There was no copyright in television or radio broadcasts before 1 May 1969. Since then, the copyright in a broadcast lasts for fifty years from the end of the year in which it was first broadcast. The AUSFTA did not change this position.

Published editions

There was no copyright in published editions before 1 May 1969. Editions published after that, enjoy copyright protection for twenty-five years from the date of their first publication. The AUSFTA did not change this position. Accordingly, any edition published more than twenty-five years ago, is in the public domain.

Anonymous or pseudonymous works

If a literary, dramatic, musical or artistic work was first published anonymously or under a pseudonym before 1 January 1955, it is now in the public domain. Photographs are an exception to this rule: their copyright expired if they were taken prior to 1 January 1955.

Those anonymous or pseudonymous works that meet the 1955 cut-off were still in copyright at the time of the AUSFTA and therefore benefit from the time extension. For these works, the period runs from the year of first publication plus seventy years. When calculating the duration of copyright, photographs are no longer treated differently from other works.

If the author’s identity is generally known or can be ascertained by reasonable inquiry, the general rule (where time is triggered by the death of the author) applies.

Works of joint authorship

While a joint authorship work remains unpublished, the period continues indefinitely. It is publication that triggers the clock.

(xxii) Published during the life of an author

Where the work is of joint authorship and is published during the life of the last surviving author, the period runs from the end of the calendar year in which the last surviving author dies. If we apply the general rule to this we can say that:

• where the last author died before 1 January 1955, the work is out of copyright;
• where the last author died after 1 January 1955, the AUSFTA applies and the period is seventy years from the death of the last surviving author.

(xxiii) Published posthumously

Where the work was first published after the death of both authors,

• where the publication took place before 1 January 1955, the work is out of copyright;
• where the first publication took place after 1 January 1955, the AUSFTA applies and the seventy-year period runs from the end of the calendar year in which the work was first published.

(xxiv) Joint authors and pseudonyms

Where one or some (but not all) of the joint authors uses a pseudonym, the period runs from the end of the year in which the last author whose identity is known, dies. This means that where that author died prior to 1 January 1955, the work is now out of copyright. If the death is after that date, the AUSFTA has extended the term to seventy years from the end of the year in which the last surviving identified author died.

Where all of the authors use pseudonyms, if the identity of one of the authors is (or could have been) discovered while the copyright period was still running, the period runs from the end of the year in which that author, whose identity has been revealed, dies.

Crown copyright

Where copyright is owned by the Commonwealth or a state, duration can be summarised as follows:

(xxv) Literary, dramatic or musical works

(a) where the work is unpublished, crown copyright continues to subsist so long as the work remains unpublished; and

(b) where the work is published, the copyright subsists for fifty years after the expiration of the calendar year in which the work was first published.

(xxvi) Artistic works

The general rule is that crown copyright in an artistic work of which the Commonwealth or a State is the owner, continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the work was made.

There are exceptions relating to engravings and photographs:

i. Engravings: crown copyright continues for fifty years from the end of the calendar year in which the engraving is first published.

ii. Photographs: If the photograph was taken before 1 May 1969, crown copyright continues for fifty years from the end of the calendar year in which the photograph was taken. However if it was taken after that date, crown copyright continues to subsist for 50 years from the end of the calendar year in which the photograph is first published.

(xxvii) Sound recordings

Crown copyright in a sound recording made prior to 1 May 1969, subsists until the expiration of fifty years after the expiration of the calendar year in which the recording or film was made. Where the recording was made after that date, crown copyright runs fifty years from the end of the year in which the recording was first published.

(xxviii) Films

(a) Before 1 May 1969

Where the film was made before 1 May 1965 there can be no crown copyright in the film itself. As with other films, this does not mean that the film is unprotected, for it may be treated as an original dramatic work or as a series of photographs. There are a series of overly complex provisions in the Act dealing with this situation in relation to films made or published by the Crown. These may be condensed as follows:

If the film can be regarded as an original dramatic work made under the direction of the Crown or first published under the direction or control of the Crown, then the crown copyright runs for fifty years from the end of the calendar year in which the film was first published. Unless it is published, the copyright period does not start to run.

Where the film is not a dramatic work it may still be protected as a series of photographs. Crown copyright in those films or photographs runs for fifty years from the year they were taken. In other words, if it was taken more than fifty years ago, it is now in the pubic domain.

(b) After 1 May 1969

Where there is crown copyright in a film made after 1 May 1969, those rights continue to subsist for fifty years from the end of the year in which the recording was first published.

(xxix) Broadcasts

There is no crown copyright in broadcasts made before 1 May 1969. After that date, any crown copyright will subsist for fifty years from the date the broadcast was made.

(xxx) Published editions

Crown copyright in a printed edition lasts for twenty-five years from the date of first publication.

(xxxi) The effect of contract

Where the Crown would have been the owner of copyright but agrees that the author of the work or maker of the recording or film is to be the copyright owner, the duration of those rights is less than in non-Crown situations :

• unpublished works: copyright continues indefinitely until publication;
• literary, dramatic and musical works: copyright lasts fifty years from the date of first publication;
• artistic works (except photographs and engravings): copyright lasts fifty years from the date the work is made;
• films, photographs and engravings: copyright lasts fifty years from the date the work is first published.

Moral rights of authors

All of an author’s moral rights in respect of a work continue in force until copyright ceases to subsist in the work. They are co-terminus with the copyright in the work.

There is an exception to this general rule for cinematograph works. For these, the author’s right of integrity of authorship continues in force only until the author dies.

Moral rights of performers for recorded performances

The performer’s attribution rights (the right of attribution of performership and the right not to have performership falsely attributed) continues in force until copyright ceases to subsist in the recorded performance. In contrast, the performer’s right of integrity of performership in respect of a recorded performance continues in force until the performer dies. Upon death of the performer, his or her legal personal representative may exercise and enforce the moral rights in respect of the performance.

Performers’ protection

The protection period of a performance begins on the day when the performance was given and ends twenty calendar years after the calendar year in which the performance was given.

However, if the recording concerned was made without the performer’s consent, or involves the copying, selling, distributing, possession, importation or offering for sale of an unauthorised recording, then the protection period of a performance is fifty years.

26.9 USES THAT DO NOT CONSTITUTE INFRINGEMENT

A: Introduction

Any discussion of uses that do not constitute infringement is destined to be complex. These exceptions are extremely detailed and complex and require detailed consideration of the relevant statutory provision. There has been much discussion of the new s 200AB of the Copyright Act 1968 (Cth). It had been hoped that this would provide a much needed simplification of the mechanisms available to collecting institutions that want or need to make copies of material in their collection. It did not. The provision, far from being a panacea, is complex, its meaning untested, and its practical implementation no easy matter. Nevertheless, it has added to the armoury.

No matter how frustrating it is on a day-to-day basis, it must be remembered that the rights of copyright are designed to be the exclusive rights of their owner. Any incursion into the exclusivity of those rights is only on the basis of acknowledged public interest but, notwithstanding that public interest, must necessarily be limited and particular if the value of those exclusive rights is to be maintained. Nevertheless, in a wide range of circumstances collecting organisations may make use of these third party rights.

It is useful to divide the exceptions provided by the Act into four categories:

(a) general exclusions – exclusions available to everyone;

(b) exclusions available to all collecting institutions;

(c) exclusions available to Key Cultural Organisations; and

(d) section 200AD.

Classifying the exceptions in this way not only gives some structure to what otherwise seems an amorphous jumble of possibilities; it is essential in order to get maximum use out of s.200AB. This new mechanism can only be used where there is no other exception available: If you don’t understand the exceptions, you cannot safely rely on s 200AB.

When working out whether there is an exception in the Act that allows you to do what you wish to do, always start at the top:

• Is the material in copyright?
• If so, is it third party material?
• If so, do you want to use a ‘substantial portion’ of the material?
• If so, do you already have rights to use the material;
• If not, is there a general exception available?
• If not, is there an exception that relates to collecting institutions?
• If not, is there an exception available because your institution is a Commonwealth or state collecting institution?
• If not, does s 200AB apply?
• If not, can a licence be obtained for the use?
• If not, what is your appetite for risk?

B: Licence

Although the most risk-averse approach is to obtain a licence from the copyright owner, this is not always realistic. Sometimes the sheer bulk of the material to be cleared makes it financially and administratively impracticable to obtain individual licences; sometimes the owner of the copyright is unidentifiable or untraceable.

You will often find a way through the problem by following the path set out in this section. For example, with orphan works:

• If the use is one of the general exceptions, you don’t need a licence and it doesn’t matter whether or not you can identify the owner.
• If the use falls within the ‘libraries and archives exceptions’ (the administrative or preservation mechanisms) there is no requirement to identify or find the copyright owner.
• Finally, there is s 200AB. As you can see from Example 3 in the discussion of s 200AB that follows, this provision has changed the way we look at orphan works: Once the legal analysis determines that s 200AB is available, whether or not to reproduce a work becomes primarily a risk management issue.

C: General exceptions

The general exceptions are available to everyone in the community – including collecting institutions. These may be summarised as follows:

(i) sculpture or craft works in a public place

(ii) incidental use for film or television

(iii) fair dealing

(a) fair dealing for the purpose of research or study

(b) fair dealing for the purpose of criticism or review

(c) fair dealing for purpose of parody or satire

(d) fair dealing for purpose of reporting news

(e) fair dealing for purpose of obtaining legal advice

(iv) use in judicial proceedings

(v) reading or recitation in public or for a broadcast

5. SCULPTURE OR CRAFT WORKS IN A PUBLIC PLACE

Sculptures and other ‘works of artistic craftsmanship that are permanently installed in a public place may be photographed, sketched, painted, or engraved without infringing copyright. Further, the copyright owner has no recourse if these reproductions are subsequently distributed and sold.

This exception does not extend to other sorts of artistic works, such as murals. Nor does it extend to works in an exhibition since their installation is not permanent.

By way of example, this exception would allow a gallery to photograph a permanently installed sculpture and put that image on an invitation or annual report. No copyright permission would be required and no fee would be payable. Note however that this exception only permits two-dimensional copyright. It does not allow three-dimensional copies to be made.

It is important to note that, except for this specific exception, there is no general exception for the taking of photographs by visitors to exhibitions. Although it is difficult in an age in which every mobile phone is also a camera, it is an identifiable risk for the organisation.

Most collecting organisations have a policy forbidding the taking of photographs in their gallery areas. There are four reasons for this prohibition:

(i) There are potential conservation problems caused by flash bulbs or the hazards of tripods.

(ii) The unauthorised photography of copyright works exposes the exhibiting institution to being sued in a copyright action.

(iii) The photography may be in breach of the institution’s contractual obligations pursuant to a loan agreement.

(iv) Such photography interferes with the sale of postcards and other merchandising.

To minimise these risks the institution is well advised to have clear signage indicating the areas of the building in which photography is prohibited and should instruct the security staff (or those responsible for supervision) to quietly speak to visitors taking pictures and remind them of the prohibition. Some institutions allow photography in their exhibition areas on the basis that they consider the risk to be minimal or that they are unable to effectively administer the prohibition. It is true that the risk of being sued is small, but if anyone is going to be sued, it will be the institution.

6. INCIDENTAL USE FOR FILM OR TELEVISION

No infringement occurs if an artistic work is reproduced on film or television if that reproduction ‘is only incidental to the principal matters represented in the film or broadcast’. As to what is `incidental’, that is a matter of fact and degree and will differ in each case. For example, there is usually no copyright problem in allowing a film crew to use museum premises as a set. It may of course be different if the film was The Picture of Dorian Gray and that portrait was held in the museum collection. Similarly, in most cases the filming of interviews in front of copyright works holds no problems, for usually this is either only an incidental use or would be covered by other exceptions.

7. FAIR DEALING

There are a number of ‘fair dealing’ exceptions provided under the Act. These will be described in the sections that follow. These are narrow public interest exceptions: research and study; criticism or review; reporting the news; obtaining legal advice and use in or reporting of judicial proceedings. There is no general exception just because the use is ‘fair’. The ‘fair-go’ rule has not yet entered the copyright world.

Beware of clichés. Although one often hears glib and reassuring little phrases, such as, ‘you can use up to fourteen bars of music’ or ‘single pages are okay’ or ‘you only need to change a line or a colour here and there’, there are few rules of thumb that are accurate. Anyone who suggests there is some simple rule that lets you use grabs of copyright material for free is woefully misinformed or no friend of yours. Such people are ignorant, lazy and dangerous. Is that blunt enough?

(xxxii) General factors indicating fairness of the dealing

To determine whether or not the intended use is fair, the Act sets out a number of factors:

(i) the purpose and the character of the use;

(ii) the nature of the work;

(iii) the possibility of obtaining the work within a reasonable time at an ordinary commercial price;

(iv) the effect of the dealing on the value of the work; and

(v) where only a part of the work is copied, the amount and substantiality of the portion copied, taken in relation to the whole.

The last of these factors indicates that in order to be ‘fair’ the use must involve only a ‘reasonable portion’ of the work copied. So the question arises: What is a reasonable portion?

The Act assists by specifying some particular situations that will be considered ‘reasonable’ and then, where the specific definitions don’t apply, provides a number of general factors that are to be taken into account when forming a judgment as to reasonableness. If the specific exceptions do not apply or are exceeded, the proportion copied may still be ‘fair’. It will be for the person making the copies to prove that the portion copied was fair. Fairness will be a question of fact in the individual circumstances of the case.

8. FAIR DEALING FOR THE PURPOSE OF RESEARCH OR STUDY

A fair dealing for the purpose of research or study of artistic, literary, dramatic and musical works does not constitute a breach of copyright. This permits copying undertaken for the research purposes of a collecting institution; for example, where the research is undertaken in exhibition development, provenance investigation, ownership of title due diligence; but does not include administrative copying.

Provided the reproduction is for the purpose of research or study:

(i) It is a fair dealing to reproduce ‘all or part of a literary, dramatic or musical work … contained in an article in a periodical publication’.

(ii) If the material is not in a periodical publication, it is a fair dealing to reproduce a reasonable portion. For this purpose, reasonable portion means:

Work or adaptation	Amount that is reasonable portion
A literary, dramatic or musical work (except a computer program), that is contained in a published edition of at least 10 pages	(a) 10% of the number of pages in the edition; or (b) if the work is divided into chapters: a single chapter
A published literary or dramatic work in electronic form	(a) The number of words copied must not exceed 10% of the number of words in the work copied; or ‘(b) if the work is divided into chapters, the number of words copied may exceed 10% of the number of words in the work copied, provided that they are contained in a single chapter. In other words, one chapter is okay irrespective of the number of words.

If the use complies with on of the above exceptions, it is deemed by the Act to be fair. If the use does not comply with the above deemed amounts and types of material, the proportion copied may still be ‘fair’ (and thus within the research and study exception) but it will be for the person making the copies to prove that the copying was fair. The factors to be taken into account are the five general factors indicating fairness set out earlier.

9. FAIR DEALING FOR THE PURPOSE OF CRITICISM OR REVIEW

‘A fair dealing with a literary, dramatic, musical or artistic work … does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made.’

This is important for collecting institutions because they can make use of this exception in the writing of essays for exhibition catalogues. Care must be taken to ensure that the use is truly criticism or review of ‘a work’ (such as its ideas, techniques, content), not just a period or style. Also, it is essential that proper attribution be made.

10. FAIR DEALING FOR PURPOSE OF PARODY OR SATIRE

‘A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.’

This is a quite recent change to the law. For many years the Act did not recognise parody or satire. Now, it has discovered its sense of humour.

11. FAIR DEALING FOR PURPOSE OF REPORTING NEWS

‘A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:

(a) it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or

(b) it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.’

This can be important for collecting institutions for many communicate with their members through newsletters and these present articles and photographs, talking about recent and forthcoming exhibitions and acquisitions. Where these items are presented as news, provided that they are properly attributed, they will be covered by the exception.

You cannot rely on this fair dealing exception for the purpose of including copyright material in advertising, the annual report, brochures or catalogues. Licences for such use are readily available from the relevant collecting societies. It is just a question of paying for the right.

12. USE IN JUDICIAL PROCEEDINGS OR LEGAL ADVICE

The copyright in an artistic work is not infringed by anything done for the purposes of a judicial proceeding, or of a report of such proceedings. Nor will a fair dealing with an artistic work for the purpose of giving professional advice by a lawyer or patent attorney, constitute an infringement.

13. READING OR RECITATION IN PUBLIC OR FOR A BROADCAST

The reading or recitation in public, or the inclusion in a sound broadcast or television broadcast of a reading or recitation, of an extract of reasonable length from a published literary or dramatic work does not constitute an infringement of the copyright in the work if a sufficient acknowledgement of the work is made. This is important for those responsible for delivering or supervising public education programs in the institution.

D: Special mechanisms for collecting institutions

14. SCOPE

Division 5 of Part III of the Copyright Act 1968 (Cth) contains special provisions relating to the copying of works by ‘libraries and archives’. Museums and galleries are included by means of a fabulously convoluted definitional path. Section 10 of the Act provides a definition of ‘archives’.

(10)(1) archives means:

(a) archival material in the custody of:

(i) the National Archives of Australia; or

(ii) the Archives Office of New South Wales established by the Archives Act 1960 of the State of New South Wales; or

(iii) the Public Record Office established by the Public Records Act 1973 of the State of Victoria; or

(iv) the Archives Office of Tasmania established by the Archives Act 1965 of the State of Tasmania; or

(aa) archival material in the custody of a person (other than the National Archives of Australia) in accordance with an arrangement referred to in section 64 of the Archives Act 1983; or

(b) a collection of documents or other material to which this paragraph applies by virtue of subsection (4).

The many hundreds of museums and galleries that do not fall within the above description must then refer to subsection (4):

(4) Where:

(a) a collection of documents or other material of historical significance or public interest that is in the custody of a body, whether incorporated or unincorporated, is being maintained by the body for the purpose of conserving and preserving those documents or other material; and

(b) the body does not maintain and operate the collection for the purpose of deriving a profit;

paragraph (b) of the definition of archives in subsection (1) applies to that collection.

Public museums and galleries and included within subsection 4(a) – being collections of ‘other material of historical significance or public interest’. Collections in the hands of individuals are excluded but those controlled by local historical societies, statutory corporations, as well as the major governmental collections, are included provided that the collection is not held for the purpose of deriving a profit.

15. COPYING FOR PRESERVATION OR REPLACEMENT PURPOSES

In certain circumstances, the officer in charge of the collecting institution may order a copy of a copyright work to be made if the work is in danger of loss or deterioration. Although not specified in the Act, it is reasonable to assume that this does not provide a right to copy all collection objects merely on the basis that all material is in a natural state of decay. At the other end of the measure, it would be unreasonable to assume that material has to be in truly imminent danger before one can undertake the copying. Certainly if preservation or conservation work is being considered or undertaken, a copy of the material can be made.

(xxxiii) Manuscripts

If the work is in manuscript form a copy can be made for the purposes of preserving it ‘against loss or deterioration or for the purpose of research that is being, or is to be, carried out at the library or archives in which the work is held or at another library or other archives’.

(xxxiv) Works in published form

If a work is held in the collection in a published form, if:

(a) it has been damaged or has deteriorated; or

(b) it has been lost or stolen,

it may be copied for the purpose of replacing the work.

Published works that are being replaced because they have been damaged, have deteriorated or have been stolen, can only be replaced by copying, if the an officer of the institution signs a declaration that the work cannot be purchased within a reasonable time at an ordinary commercial price.

(xxxv) Artistic works

(c) Preservation

An artistic work may be copied for the purpose of preserving the work. It may also be copied for ‘the purpose of research that is being, or is to be, carried out at the library or archives in which the work is held or at another library or other archives’. These actions must be done by or on behalf of the officer in charge of the institution in which the work is held.

Where an original artistic work held in the collection:

(a) has been lost, or has deteriorated, since the preservation reproduction of the work was made; or

(b) the work has become so unstable that it cannot be displayed without risk of significant deterioration,

it is not an infringement of copyright to make a preservation copy of the work or to communicate that copy by making it available on-line. However, the copy must only be available through computer terminals:

(a) installed within the premises of the library or archives; and

(b) that cannot be used by a person accessing the work to make an electronic copy or a hardcopy of the reproduction, or to communicate the reproduction.

Again, putting the copy on-line in this way can only be done by or on behalf of the officer in charge of the institution.

(d) Replacement

Where the institution wishes to replace rather than preserve published material (such as posters or post cards) that has been destroyed, reference should be made to the previous section: ‘Works in published form’. The only original works that can by reproduced for the purpose of replacement are those that have been published. This would include material such as posters and postcards but would not give the institution the right to make a facsimile of a painting stolen from the collection (because the work held in the collection was an original and not in published form.)

(xxxvi) Sound recordings or films

(e) For preservation purposes

Where a sound recording or a film (‘material’) is held in and forms part of the collection, it will not be a breach of copyright in either the material or any works included in the material, if the officer in charge of the institution makes a copy:

• of original materials for the purpose of research that is being, or is to be, carried out at the library or archives in which the material is held or at another library or archives; or
• of original materials for the purpose of preserving the material against loss or deterioration,

provided that the copying is done for preservation purposes.

(f) For replacement purposes

Where a sound recording or a film (‘material’) is held in the collection in a published form but has deteriorated or been damaged or stolen, it will not be a breach of copyright in either the material or any works included in the material, if the officer in charge of the institution makes a copy for the purpose of replacing the material.

The important proviso to this is that where you seek to replace a published copy (in contrast to original material), a replacement copy can only be made if an authorised officer, after reasonable investigation, makes a declaration that he or she is satisfied that a copy (not being a second-hand copy) of the material, cannot be obtained within a reasonable time at an ordinary commercial price.

Where that copy has been made for the purposes of preservation or replacement it can be made available on-line provided it is only accessible on computers within the premises of the organisation. However, where that copy has been made for the purposes of research – and that research involves another collecting institution – on-line availability may also be given to that other institution. Extraordinarily, the Act requires that in either case, the act of putting such material on-line requires the approval of the board of the institution.

16. PRESERVATION COPIES OF SIGNIFICANT COLLECTION MATERIAL IN KEY CULTURAL INSTITUTIONS

Key Commonwealth, State and Territory collecting institutions have additional powers to those set out above. These powers are in addition to the general preservation and replacement powers already discussed.

If an authorised officer of such an institution is satisfied that a work is of historical or cultural significance to Australia, copyright will not be infringed if the institution makes up to three copies of the work for the purpose of preserving it against loss or deterioration.

There are different controls on this right, depending on the type of material:

(a) Manuscript: the copy may be made so long as the work is held in the collection and the reproduction is to preserve it from loss or deterioration.

(b) Original artistic work: if the work is held in the collection, the institution may make ‘up to 3 comprehensive photographic reproductions of the work from the original artistic work for the purpose of preserving it against loss or deterioration, provided that the officer is satisfied that a photographic reproduction (not being a second-hand reproduction) of the work cannot be obtained within a reasonable time at an ordinary commercial price.’

(c) Published work: ‘If the work is held in published form, the copyright in the work is not infringed by an authorized officer of the library or archives making up to 3 reproductions of the work from the copy held in the collection, for the purpose of preserving the work against loss or deterioration, if the officer is satisfied that’ a new copy (not being a second-hand copy) of the work, or of the edition in which the work is held in the collection, cannot be obtained within a reasonable time at an ordinary commercial price’.

In determining … whether a reproduction or copy (not being a second-hand reproduction or copy) of the work, or of a particular edition of the work, cannot be obtained within a reasonable time at an ordinary commercial price, the authorized officer must take into account whether an electronic copy of the work or edition can be obtained within a reasonable time at an ordinary commercial price.’

(d) Published edition: The institution may make ‘up to 3 … copies’ of a published edition ‘for the purpose of preserving the edition against loss or deterioration, if the officer is satisfied that a copy or facsimile copy of the edition (not being a second-hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.’ The ‘officer must take into account whether an electronic copy of the edition can be obtained within a reasonable time at an ordinary commercial price.’ Where ‘a facsimile copy of the edition’ of the published edition is made under this power, ‘the making of that copy does not infringe copyright in any of the works in the published edition.’

(e) Recordings and Films: Whether the material is published or unpublished, the institution may make ‘up to 3 copies … for the purpose of preserving’ the material ‘against loss or deterioration’. However, where the recording or film has been published an authorised officer must make a declaration that he or she is satisfied that a copy of the material (not being a second-hand copy) cannot be obtained within a reasonable time at an ordinary commercial price. In doing so, the authorised officer must take into account the availability of electronic copies. Where a copy of the recording or film is made under this power, the making of that copy does not infringe copyright in any of the works in that material.

17. COPYING BY THE PUBLIC

If the collecting institution has a photocopying machine or other copying equipment available for the public to use, it will not be responsible for any infringements of copyright committed by users merely for providing the copying equipment – so long as it displays near the machine, the prescribed warning sign.

Similarly, while an institution that merely provides Internet facilities for its visitors is unlikely to be liable if their use constitutes a breach of copyright it is prudent to display a copyright-use notice next to the machine.

18. COPYING FOR THE PUBLIC

A member of the public may request the institution to make and supply a copy of an article or some other published work so long as the following conditions are met:

(a) The request must be in writing;

(b) The request must accompany the piece to be copied;

(c) It must contain a declaration stating that the person

• requires the copy for the purposes of research or study and will not use it for any other purpose;
• has not previously been supplied with a copy of the same material by an authorised officer of the institution.

Where this request and declaration is made, the officer in charge may make and supply the requested copy. There are only a few restrictions on this:

(a) The charge made must not exceed the cost of making and supplying the copy.

(b) A copy may not be made of two or more articles (or parts of articles) for the same periodical publication unless the articles are requested for the same research or course of study.

(c) If the request is for a copy of the whole (or more than a ‘reasonable portion’) of a literary, dramatic or literary work (other than an article in a periodical) the authorised officer must sign a declaration that:

(i) ‘the work forms part of the library or archives collection; and’

(ii) a reproduction (not being second-hand) cannot be purchased ‘within a reasonable time at an ordinary commercial price’. The declaration should specify that in making this determination the officer has taken into account:

• ‘the time by which the person requesting the reproduction requires it’;
• ‘the time within which a reproduction (not being a second-hand reproduction) of the work at an ordinary commercial price could be delivered to the person’; and
• ‘whether an electronic reproduction of the work can be obtained within a reasonable time at an ordinary commercial price’.

(d) The copy of an article or other published work should usually only be supplied to the person who made the request.

(e) The copy should then be marked by the institution with a ‘notation stating that the reproduction was made on behalf of that institution and specifying the date on which the reproduction was made’. This is essential if copyright infringement proceedings are commenced and the institution wishes to gain the protection of the statutory exception.

Where the institution is authorised to supply a copy under this power, it is also authorised to electronically communicate it. Note that where a copy is faxed or emailed to the person who requested it, the institution must use a particular form of wording to notify the person that the reproduction has been made under s 49 of the Act and that the article or work may be subject to copyright protection under the Act. Once sent, the copy must be destroyed.

(xxxvii) Electronic access

Where the institution acquires an article or other published work in electronic form as part of its collection, the officer in charge of the organisation may make it available on-line within the premises of the organisation – but only in such a way that users can neither communicate nor make an electronic copy of the work.

19. COPYING FOR OTHER COLLECTING ORGANISATIONS

This Part provides the ability of certain collections to copy for other collections. It only applies to

(a) a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans; or

(b) a library whose principal purpose is to provide library services for members of a Parliament; or

(c) an archive all or part of whose collection is accessible to members of the public.

Note the restrictions inherent in this exception: the main theme is that the collection must provide public access. For example, most collections associated with companies (such as corporate libraries or art collections) will not come within the exception because they do not permit public access.

A complying institution can request another such institution to supply it with copies of works (or parts of works) where it wants the copy either:

• to include the copy in its collection or
• to supply the copy to a person who has made a request for a copy for the purpose of research or study.

Such requests must be made by, or with the authorisation of, the officer in charge of one institution to the officer in charge of the other.

If the institution has previously asked for a copy of the same material for the purpose of including the work or article in the collection, upon making the request, the authorized officer must make a declaration setting out the purposes of the relevant reproduction was sought and stating that the copy so supplied ‘has been lost, destroyed or damaged’.

An institution is not permitted to provide a reproduction of all or part of two or more articles that are contained in the same periodical publication and requested for the same purpose, unless the purpose is:

(i) to assist a member of a Parliament perform his or her duties; or

(ii) to supply a request under section 49 for the same research or course of study.

The requested copy must be made by an authorised officer and the charge must not exceed the cost of making and supplying the copy. If the copy is being supplied electronically, as soon as practicable after the reproduction is supplied to the other institution, any reproduction made for the purpose of the supply and held by the supplying institution must be destroyed.

If the institution complies with these requirements, the copying will not be a breach of the reproduction right and sending it to the requesting institution electronically will not be a breach of the communication right.

So far, so good. However, if the copying sought is of the whole or an unreasonable portion of the work, you must comply with the following sections.

(g) Copying of all, or more than a ‘reasonable portion’, of a work that is in hardcopy form

If the request is for a copy of the whole (or more than a ‘reasonable portion’) of a work in hardcopy form (other than an article in a periodical), the authorised officer must make a declaration:

(a) setting out the particulars and purposes of the request; and

(b) stating that the work cannot be purchased new within a reasonable time at an ordinary commercial price.

This declaration must be made as soon as possible after making the request.

(h) Copying of all, or more than a ‘reasonable portion’, of an electronic work

Where the work is in electronic form, the procedure is similar. If the request is for a copy of the whole of a work in electronic form (including an article in a periodical), the authorised officer must make a declaration:

(a) setting out the particulars and purposes of the request; and

(b) stating that, after reasonable investigations, the work cannot be purchased in electronic form, either separately or together with a reasonable amount of other material, within a reasonable time at an ordinary commercial price.

20. UNPUBLISHED WORKS

The Act provides for two situations in which the authorised officer can copy unpublished works without breaching copyright.

(xxxviii) Theses and manuscripts

Where a collecting institution has an unpublished thesis or similar work in its collection, the work may be copied if the officer is satisfied that the person requesting it is doing so for the purpose of research or study.

(xxxix) Other unpublished material

With other unpublished literary, dramatic, or musical works, or unpublished photographs and engravings, copies may be made (and electronically communicated) if:

• the author has been dead more than fifty years;
• the work is available for public inspection in the collection (subject to the governing regulations);
• the copy is sought only for the purposes of research or study or with a view to publication.

This copying may be made by the person undertaking the research, study or the like, or may be made by an authorised officer of the institution provided that he or she is satisfied that the copyright and communication is for the purposes of research or study or with a view to publication and that the person will not use it for any other purpose.

G: Copying works for administrative purposes

A work held in the collection may be copied by an authorised officer for ‘administrative purposes’. That phrase is defined as ‘purposes directly related to the care or control of the collection’. This certainly covers all registration-related uses (for example accessioning and deaccessioning, loans, insurances ant the like) but, despite the breadth of the definition, is unlikely to include preservation as this is specifically dealt with elsewhere in the section.

Moreover, copyright in the work is not infringed where an authorised officer, with the approval of the body administering the library or archive, makes the copy available on-line to employees of the institution through the use of a computer terminal installed within the premises. Note that the section requires the approval of ‘the body administering the library or archive’, which is presumably the governing board. It is certainly more than ‘an authorised officer’. Further, on-line accessibility is restricted to employees of the organisation – not its public.

H: Reproducing and communicating works in care of National Archives of Australia

Where a work that kept in the collection of the National Archives of Australia is open to public inspection, copyright is not infringed by the making or communication by, or on behalf of, the officer in charge of the archives:

(a) of a single working copy of the work; or

(b) of a single reference copy of the work for supply to the central office of the National Archives of Australia; or

(c) on the written request for a reference copy of the work by an officer of the National Archives of Australia in a regional office of the Archives, where the officer in charge is satisfied that a reference copy of the work has not been previously supplied to that regional office – of a single reference copy of the work for supply to that regional office; or

(d) where the officer in charge is satisfied that a reference copy of the work supplied to a regional office of the National Archives of Australia is lost, damaged or destroyed and an officer of the Archives in that regional office makes a written request for a replacement copy of the work – of a single replacement copy of the work for supply to that regional office; or

(e) where the officer in charge is satisfied that a reference copy of the work supplied to the central office of the National Archives of Australia is lost, damaged or destroyed – of a single replacement copy of the work for supply to that central office.

When interpreting this section it is essential to apply the particular definitions provided by the Act:

reference copy, in relation to a work, means a reproduction of the work made from a working copy for supply to the central office, or to a regional office, of the National Archives of Australia for use by that office in providing access to the work to members of the public. replacement copy, in relation to a work, means a reproduction of the work made from a working copy for the purpose of replacing a reference copy of the work that is lost, damaged or destroyed. working copy, in relation to a work, means a reproduction of the work made for the purpose of enabling the National Archives of Australia to retain the copy and use it for making reference copies and replacement copies of the work.

I: Use of copyright material for the services of the Crown

The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorised in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

It is no easy matter to determine whether a collecting institution is properly described as the Commonwealth or State, or what constitutes doing something for the services of the Commonwealth or State. These are complex issues that must be determined on a case-by-case basis. It depends on the structure and constitution of the organisation and the purposes of the services.

Where this Crown power is used, the Act requires that the government shall as soon as possible inform the owner of the copyright and shall furnish the owner with such information as to the doing of the act as they reasonably require. The terms of the copying will be as agreed between the government and the owner (or in default of agreement, as determined by the Copyright Tribunal).

In practice this is not a power relied on by collecting institutions in the performance of its usual functions such as exhibitions, education and conservation.

J: Section 200 AB

K: Inspection of records and declarations retained by libraries, archives or institutions

Some of the copying powers given to collecting institutions in the Act, require an authorised officer or some other person to make a declaration as to belief or purpose or some other matter required by the legislation. Clearly there is a public interest to ensure that these exceptional incursions into private property rights are not treated lightly. For this reason, the copyright owner may demand to inspect all of the declarations that relate to the making of copies in reliance on section 49, 50, 51A or 110B and in some cases may even have the right to inspect the collection.

These declarations are important matters and there are a number of potential offences attached to misbehaviour in this regard. For example, it is an offence:

• if the declaration is not kept in the records of the institution;
• if the officer in charge of the institution does not take all reasonable precautions, and exercise due diligence, to ensure that the person inspecting the records is provided with all reasonable facilities and assistance for the effective exercise of the inspection powers;
• if the declarations are not kept in chronological order;
• if the declarations are destroyed or disposed of before the date prescribed by the Regulations;
• if the copy required to be made contains a notation that is false or misleading in a material particular.

L: Some concluding comments

The way that the Act deals with the needs of collecting institutions cannot make any lawyer proud. There is no apparent overarching scheme to the rights given to the institutions and little apparent effort to organise or draft the legislation in a manner that promotes access and understanding. The language of the drafting is obtuse; the structure of the provisions and their interrelationship is medieval. The mechanisms provided do not take sufficient account of the real copying needs within collecting institutions, mechanisms that would respect the balancing of public interests that attaches to any exception to the exclusive rights of copyright.

It is likely that only the largest and best-resourced collecting institutions can comply with any degree of reliability on the ‘libraries and archives’ exceptions. While it is readily acknowledged that any incursion into the exclusive rights of copyright owners should be carefully considered, the administrative requirements are complex, slow and resource heavy. (For ten points, can anyone answer the following question: Which procedures require authorisation by an ‘authorized officer’, the ‘officer in charge’ and ‘the body administering library or archives’? As a supplementary question, ‘Can the officer in charge or the body administering the library or archives’ delegate that responsibility to an authorised officer?)

The new s 200AB, the great hope of the collections community, is no exception. The paper developed by Minters and reproduced above, demonstrates that even fine legal minds cannot simplify the supposed panacea provided by that provision. Its operation was apparently designed as part of The Glass Bead Game; its wording is compliant with all international treaty obligations but unhelpful to those who must apply it. Nevertheless, it is what we’ve got. It may be a dog with only three legs – but it is OUR dog. So, until it is mercifully put to sleep, we must learn to love it.

26.10 DEALING WITH COPYRIGHT

Introduction

Copyright is personal property. It can be sold, licensed, or even left in one’s will. Almost all of the statutory provisions as to the ownership of copyright are all subject to variation by contract. The most common methods are discussed in this section.

It is basic to the whole understanding of dealing with copyright that copyright is distinct from the material in which it subsists. The material and the copyright in it are distinct assets. Many amateur collectors believe that when they acquire a thing, they also acquire the copyright in it. The trap in this for collecting institutions is that when they acquire material they are often told wrong information about the copyright status of the material being acquired. Honestly mistaken vendors and donors purport to pass copyright to the institution when they are not owners of those rights. The consequent dangers for the institution are obvious.

There are two basic kinds of copyright transaction: licences and assignments.

Assignments

When you assign a right, the whole legal ownership and control of that right passes to the other party. It is like selling that right.

To be legally effective, an assignment must be in writing. You cannot assign copyright unless it is in writing. That writing must be signed by the copyright owner or the copyright owner’s representative. Nothing less will do.

It is not necessary to assign the whole copyright. Think of an onion. You can sell the whole onion or you can peel off various layers and treat them separately. For example, assignments are frequently limited to:

• one or more of the exclusive rights of copyright or part of them;
• a specified territory; or
• a specific length of time.

Until only couple of decades ago, public galleries acquiring work tended to adopt a rather heavy hand and often used their considerable power to acquire assignments of copyright when acquiring the work itself. For many years it was common gallery practice for all acquisition contracts with artists to contain a clause by which the artist was required to assign the copyright at the same time as the work itself was purchased.

Three changes have meant that collecting organisations are quite capable of fulfilling their needs by means of licences:

• Copyright owners have become more aware of their rights and in particular the value of their copyrights. In this the age of merchandising, the subsidiary rights have become often more valuable than the traditional property rights.
• The skill and professionalism of collection managers has grown.
• Computer technology allows the creation of readily accessible systems that readily provide the copyright status of any particular material in the collection.

Licensing the rights

When you give a licence, you give the other person permission to use the right in a particular way but always retain ownership and potentially, a certain control over the right.

Licensing is huge business. Almost every sector of commerce is reliant on it. Art and design is a fundamental component of all advertising, merchandising, marketing, corporate image making and communication media. Now that the commercial value of these rights is an everyday part of business, both licensors and licensees have become more commercially sophisticated in their copyright dealings. In particular, owners are recognising that licences should be limited to those rights that are really necessary for the licensee’s commercial or other purposes.

There are several advantages to licensing:

• It has nothing to do with the ownership of the work itself. You can license its reproduction and publication long without having to own (or sell) the original.
• It provides an on-going source of income for the copyright owner – irrespective of ownership of the material to which it relates.
• You remain the owner of the copyright. When you grant a licence you are permitting someone else to use the right but you retain ownership and thus control over that right. Because of this tighter control, licences are a much safer way to deal with your copyright.
• You can sculpt the ambit of the licence to suit your needs and those of the licensee. As you will see from the checklists that follow, a licence allows you to articulate the rights that you grant in a very precise way.

The layers of rights that can be granted by licence are extraordinarily divisible. Think onion again. Accordingly, if you are the rights owner good business demands that you ensure that any licence you grant is limited to the real needs of the licensee. As for licensees, good practice requires that they seek only the rights that are needed for their purpose: it is generally easy to obtain a licence when the uses are spelled out and the rights owner can see that the intended use is reasonable.

Formalities

No particular form is required for a non-exclusive licence. Non-exclusive licences can be verbal, in writing, or partly verbal and partly in writing. In contrast, exclusive licences must be in writing, signed by the ‘licensor’ (the one granting the licence) or their agent.

If a licence that purports to be exclusive does not fulfil the above formal requirements, it does not mean that no licence has been granted: it will simply be treated as a non-excusive licence.

That said, when dealing with copyright, either as an owner or a licensee, it is not sensible or prudent practice to deal with such valuable property except by formal documentation.

Licensing Checklist

The following checklist will be of assistance in determining whether the licence being sought is appropriate for the circumstances.

Remuneration

Copyright is a valuable thing. It should be paid for. There are three basic ways to structure the remuneration: an outright fee; a royalty; a fee and a royalty.

21. FEE

The outright fee is the easiest but has its drawbacks. The biggest disadvantage of the straight fee is that no one can really know at the outset of a transaction how much the rights are worth. For example, the value of the right to reproduce photographs in a book will vary wildly depending on the likely sales of the book. On the other hand, when dealing with licensees who are perhaps unknown quantities or whose intended use will be hard to audit, it may be better to adopt an outright fee rather than take the risk of getting a percentage of nothing.

22. ROYALTY

A royalty is a common method of profit participation. If one makes money, both make money. However it works only so long as the person doing the arithmetic can be trusted and the arithmetic can be checked. Thus, t-shirt distributors are notorious for their rubbery sums whereas most large publishing companies have accountants who can add up and have methods of accounting that are easily subjected to audit.

It need hardly be said that when dealing with royalties one should always be suspicious of royalties based on the net income. In such deals the definition of ‘net’ is always highly negotiated. It is much easier to calculate royalties on the gross income. The point is commercial rather than legal but many people have gone broke on fifty per cent of net when they would have made a fortune out of twelve per cent of gross.

23. ADVANCE

Often a licensor will demand an advance. An advance differs from a fee in that it is a pre-payment of royalties. The amount of the advance is paid up-front and then recouped from the royalties that would otherwise be payable. An advance may be either ‘repayable’ or ‘recoupable but not repayable’. With the former, if the advance is greater than the royalty income payable during the term of the deal, the difference has to be repaid. With the latter, the advance is only repaid through royalty income. Most advances are not repayable but are fully recoupable.

24. FEE PLUS ROYALTY

Increasingly common is the payment of a fee plus a royalty. In this way the copyright owner gets an upfront fee for the usage and a royalty on the proceeds. Here, the questions are two-fold:

• Is the fee repayable in any circumstances?
• Is the fee recoupable? (In other words, is it really merely an advance against future royalties?) There is nothing wrong with this, but the answer is important for the purpose of working out whether or not the deal is a fair one.

On-line licensing and creative commons

As the Internet developed into a major communication and business medium it became clear that new contractual approaches needed to be explored. There was no longer any real opportunity to negotiate individual contracts. The one with something to sell was dealing with the many – global, not local; largely anonymous; often unknown, except by an email or internet protocol (IP) address. On-line, the relationship between vendors and purchasers was hugely different from that in the atom-based world.

This meant that new ways of entering contracts had to be developed so that on-line commerce could develop and mature within the boundaries of the legal system – for without that, no vendor and no purchaser could trade with equanimity, let alone make the enormous investments that were required by this new market-place. Although it is almost unbelievable for those who were born in the compact disc (CD) generation, the Internet was an interesting but nerdy place until the development of easy to use search engines in the mid-1990s stimulated and permitted the role of the Internet to change from a military and academic communication network to the modern equivalent of the Roman forum: the meeting place; a centre for commerce, news, discussion, politics, sex, deceit and truth.

Lawyers had to develop new ways of contracting. It was no longer reasonable to expect the contracting parties to meet or even personally communicate. A whole new way of entering formal agreements had to be found.

The most ubiquitous and dominant of these is the click-through contract. The law presumes that one has read and understood the contents of any agreement to which one agrees to be bound. Given this, the question became, as we don’t have handwritten signatures on-line, how can one party establish that the other has read and agreed to the terms of the deal offered? Nowadays, we are all used to the ‘agree’ and ‘decline’ buttons and press them without a moment’s thought. When did you last read the terms before pressing the ‘agree’ button? If you do venture into that lonely land you will discover a long document, full of legal terms that protect only the interests of the offeror. Would Facebook have become so successful if people had actually read and understood the contractual terms of membership before pressing the ‘agree’ button?

For some years there was legal discussion as to the validity of the ‘click button’ form of entering an agreement but it is now quite settled that pressing the ‘agree’ button is legally akin to signing your consent with a pen. It is acceptance by conduct and that acceptance is communicated to the offeror. Provided that the offeror can prove the identity of the contracting party, it can enforce the agreement.

All of this may seem tangential to copyright licensing but it is not. When you put a digital asset on-line (whether it is a photograph, video, music, article, book or blog) you are making it possible for an indeterminable number of unidentified people to make unrestricted numbers and types of uses, of the asset. This is fabulous if you are old enough to have once argued the toss between the Maoists and the Trotskyists, or young enough to remember The Spice Girls fondly. The two demographics (with little else in common) share a belief in the socialisation of private digital assets. Groups such as the Electronic Frontier may have argued for a new world in which the laws of the old world did not apply to the new on-line world but the younger demographic didn’t care about the philosophy – they just did it. File sharing and unauthorised appropriation became a part of everyday life.

This created a challenge for the owners of copyright material: How could they protect their investment in the creation and promotion of digital assets? Further, how could owners permit the distribution of their assets in accordance with the purposes for which they had been created? This is where the interests of, say a record company, diverge from those of a collecting institution. For one, the primary purpose is commercial; for the other, the primary purpose is public access. One is measured in corporate profit and the other, by the effectiveness of the public educational initiative. They are both valid and defensible. It is a question of what use the owner wishes to make of its asset.

The Creative Commons approach is one that recognises that some owners wish to make their content available to as many people as possible while at the same time imposing simple restrictions on subsequent use.

Creative Commons and collecting institutions

Many institutions use some form of Creative Commons licensing in respect of their on-line collections. There are many advocates of Creative Commons who see it as a way of avoiding the complexities of copyright. This is a false hope. Put at its simplest, Creative Commons is a ‘low-doc’ system of copyright notification and licensing. It works within the copyright system rather than being an alternative to it. It provides those who own rights to grant licences and those who wish to use those rights, the ability to enter licences without the need to enter individual negotiations. The copyright position of the material stated, the permitted uses and contractual terms are spelled out and the user can either take it or leave it.

In a standard copyright licence, one of the most important sections will be as to enforcement and sanction. What happens if the licensor breaches the terms of the licence? With a Creative Commons licence what must be remembered is that once granted, the use granted is without supervision and can include only minimal sanction. An institution that adopts this approach should make sure that it reviews very carefully the standard agreements that it adopts when implementing the Creative Commons approach. All of the standard agreements currently available need considerable amendment before use by collecting institutions. No institution would be prudent if it left the control of the asset to such a basic agreement.

Although no institution will offer unlimited use of the on-line asset, it should reinforce the agreement by using technological protections that will inhibit unauthorised uses. The most common protections are to ensure that images be put on-line only if they are in a resolution that is too low for commercial re-use and to convert literary material into a PDF format. These are somewhat primitive precautions and do not prevent copyright infringement – they merely reduce them.

Creative Commons is really only relevant to collecting institutions in respect of their pubic access programs. When it comes to the commercial or inter-institutional licensing, an institution cannot prudently rely on such a simplistic approach. Where it is important to control the period, nature and quality of the use, to protect important features of the material and to safeguard the reputation of the institution, it is essential that the institution use a formal, fully articulated licence. Creative Commons licensing has no place in the granting of licences for merchandising, reproduction of catalogue images and text, and all of those other uses where the owner wishes to control the value of their copyright asset.

25. THE OPENING AUSTRALIAN ARCHIVES PROJECT

Opening Australian Archives: Open Access Principles for Australian Collecting Institutions is a project of the Australian Research Council (ARC) Centre of Excellence for Creative Industries and at Queensland University of Technology. Although the website states that its content is only in draft form, it is essential reading for any collecting institution that is undertaking any on-line copyright licensing regime. It provides advice that is both prudent and practical. It also provides an interesting selection of brief case studies from local, national and international institutions.

Thanks to this project – and its availability on-line – there is no need to reinvent the wheel here.

Intellectual property (IP) licence checklist

The following checklist sets out the issues that you might need to consider when entering a licence agreement involving copyright. The contract itself will not contain all of these issues – it is an aide de memoire for drafting or examining a licence agreement.

INTELLECTUAL PROPERTY LICENCE CHECKLIST

26.11 REMEDIES

The rights conferred by the Act are exclusive. They can be enforced by their owner, or where appropriate, the owner’s assignee or the exclusive licensee. Determining which remedies are available and the legal and strategic reasons for adopting one over another, is a complex matter that requires experienced legal advice in each individual case. The following brief outline is to give you some basic information before meeting with your organisation’s litigators.

Remedies for breach of copyright

26. INJUNCTION

This is an order of the court forbidding the threatened infringement or the continued infringement of a copyright. For example, the court may issue an injunction preventing the sale of items such as printed t-shirts that the copyright owner alleges reproduce their work without permission. An injunction can be issued even where there has not been a final decision by the court as to whether copyright has been infringed, though in this situation the copyright owner may have to give an undertaking to compensate the defendant if their case is unsuccessful. It can be obtained quickly and should be sought as soon as an ongoing infringement or threatened infringement is discovered.

27. DAMAGES

In addition to an injunction, the court may award damages to compensate the copyright owner for the loss suffered because of the defendant’s infringement. The court may also award additional damages when it sees fit; for example, when the infringement is flagrant, vexatious, or perhaps causes severe mental or emotional stress.

28. ACCOUNT OF PROFITS

This remedy does not seek to compensate the copyright owner for loss suffered, but rather, requires the defendant to reveal how much money was derived from the breach and, where appropriate, pay those profits to the rightful copyright owner. (Note that you can either seek damages or an account of profits – but not both. The decision is of vital strategic significance in copyright cases.)

29. CONVERSION OR DETINUE

While the remedy of damages is designed compensate the owner for the infringement of an exclusive right, conversion and detinue are old procedures by which the owner receives damages for the loss of the infringing copies already disposed of and, more importantly, delivery up of the remaining copies. For example, if the artistic work has been reproduced on a range of clothing (as had happened in Bronwyn Bancroft’s Federal Court case against Dolina Fashions) the law says that the infringing copies (such as the dresses) are the property of the copyright owner whose rights have been breached. In that case, the company had to pay the artist an account of profits and hand over all garments that bore the artist’s designs.

30. ANTON PILLAR ORDERS

Anton Pillar orders provide the copyright owner with a power to enter the premises of a person who is suspected of being a copyright pirate, to search for, and take possession of infringing material. It can even extend to forcing the subject to reveal other relevant information such as the whereabouts of stock or printing plates or the names and addresses of other people who have been involved.

These orders are granted only in limited circumstances, usually when there is a real fear that evidence will be disposed of or destroyed. These are not just Rambo-like raids; the Courts put very firm restrictions on the parties’ behaviour during the raid and require that the lawyers provide written reports after the event. Because they amount to a non-police raid of private property, these orders are not easy to get but they are often the only way of nailing copyright pirates who are working on a large scale.

Another version of the Anton Pillar order is referred to as the John Doe Order. In this case, the plaintiff doesn’t know the exact names of the pirates and hence the reference to the legal fictional person, John Doe). This is used mainly in situations where you can be sure that there will be copyright bootleggers but cannot reasonably be expected to know who they are. This is often the case, for example, at popular music concerts where pirate merchandisers are hugely organised and follow the stars on tour, from date to date and country to country. In such cases the court is may grant an order permitting the seizure of contraband merchandise such as t-shirts, caps, posters and badges from unspecified vendors, and requiring these vendors to give details about how the illegal merchandise had been acquired. These are strong remedies but are difficult to obtain. They are expensive and are only suitable where the dollar value of the piracy is high.

Remedies for breaches of moral rights

Given the respect that almost all collecting institutions have for the moral rights, these remedies require only brief mention.

The breach of moral rights is not a criminal offence but it gives the owner of the moral rights the power to bring an action against the wrongdoer. In a case for an infringement of any of an author’s moral rights in a work, the applicant may seek any or all the following remedies:

(a) an injunction;

(b) damages for loss resulting from the infringement;

(c) a declaration that a moral right of the author has been infringed;

(d) an order that the defendant make a public apology for the infringement;

(e) an order that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed.

It is worth noting that in exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following:

(a) whether the defendant was aware, or ought reasonably to have been aware, of the author’s moral rights;

(b) the effect on the author’s honour or reputation resulting from any damage to the work;

(c) the number, and categories, of people who have seen or heard the work;

(d) anything done by the defendant to mitigate the effects of the infringement;

(e) if the moral right that was infringed was a right of attribution of authorship – any cost or difficulty that would have been associated with identifying the author;

(f) any cost or difficulty in removing or reversing any false attribution of authorship, or derogatory treatment, of the work.

It is easy to recognise how each of these matters can have special significance in the contest of collecting institutions.

Remedies for infringements of performer’s moral rights

A performer has moral rights in respect of a live performance or recorded performance. Where those rights are breached they may seek any one or more of the following remedies from the court:

(a) an injunction (subject to any terms that the court thinks fit);

(b) damages for loss resulting from the infringement;

(c) a declaration that a moral right of the performer has been infringed;

(d) an order that the defendant make a public apology for the infringement;

(e) an order that any false attribution of performership, or derogatory treatment, of the performance be removed or reversed.

In exercising its discretion as to what relief would be appropriate, the court may take into account any of the following:

(a) whether the defendant was aware, or ought reasonably to have been aware, of the performer’s moral rights;

(b) the effect on the performer’s reputation resulting from any damage to the performance;

(c) the number, and categories, of people who have heard the performance;

(d) anything done by the defendant to mitigate the effects of the infringement;

(e) if the moral right that was infringed was a right of attribution of performership—any cost or difficulty that would have been associated with identifying the performer;

(f) any cost or difficulty in removing or reversing any false attribution of performership, or derogatory treatment, of the performance.

ENDNOTES

Charlotte Davy
Senior Exhibitions Registrar, Art Gallery of New South Wales

Introduction

A courier is a disciplined, knowledgeable and logical person who safeguards cultural objects in transit, during installation/deinstallation, and throughout any internal museum movements that may be negotiated. Using a courier is one option that can be considered in overall risk management of the transport and display of museum objects. A courier needs to understand the materiality of the objects for which they are caring, as well as the legal parameters of the loan transaction and occasionally the acquisition process that has necessitated the transit.

It is important to choose an appropriately skilled and informed person who can act with authority when making decisions about the objects they are couriering, and be diplomatic in representing the lending institution/owner. The reason for sending a courier needs to be clearly defined and the role of the courier clarified on a case by case basis. This chapter will examine why a courier is used, how the role relates to managing risk, the legal parameters governing the role of the courier, and alternative methods of supervision if a courier is not used.

Background

In the past the requisite skills and person specification for being a courier were of little concern to museum administrators who used the opportunity for travel, at another institution’s expense, as a way of carrying out research and other business. This approach did not acknowledge that specific skills are needed to negotiate the transit environment, problem solve when issues arise, and deal with the technical requirements of an installation. Throughout the 80s and 90s couriers became the norm for many of the transits carried out by larger institutions but the choice the reason for sending a courier and the expectations of the role lacked clarity.

Given the high cost associated with couriers there have been recent initiatives to introduce a level of analysis about whether a courier is required for a transit, and also a general trend toward professionalising the role of the courier. In 2008 the Bizot Group (otherwise known as the International Group of Organizers of Large-scale Exhibitions) asked for a revision to the guidelines in the courier section of the General Principles on the Administration of Loans and Exchange of Cultural Goods Between Institutions. The working group charged with this revision made the following key recommendations that fundamentally challenge the accepted courier practices of many institutions:

In summary, the key changes to the courier section of the General Principles are as follows:

• change of focus to reflect a fair and reasonable approach on the part of both the Lender and the
• Borrower;
• a fundamental change to the original assumption that a courier is always required;
• strong presumption against sending a courier unless a risk assessment is made to the contrary;
• encouraging sharing of couriers wherever possible;
• definition of the role and responsibilities of the courier, with emphasis on the importance of suitable training [1]

These recommendations together with others detailing more specific aspects of courier arrangements were adopted in 2009.

Reason for sending a courier

There are a number of different reasons or combinations of reasons to send a courier with museum objects:

• an item may be difficult to install or require specialist knowledge to install;
• the freight routing may be complex and require multiple trans-shipments and/or extensive handling;
• an item may be of particularly high monetary value or cultural significance;
• an item may be of a particular size or fragility that requires careful handling; or
• the borrower may have been unable to provide full information to assess the loan but a decision has been made to lend anyway (particularly when the borrower is opening a new building or gallery).

Choice of courier

The reasons a courier has been assigned shape the choice of person to take on the role. For example, a display technician with the working knowledge of a particular object is the obvious choice for an object with difficult display requirements. The choice of courier becomes less clear-cut when working on the basis of value or cultural significance and the choice can become clouded by the perceived benefits of travel rather than the task at hand. Regardless of the reasons for choosing a courier, there are base-line skills and knowledge that a person requires to act in this role:

• working knowledge of correct freight palletisation and loading procedures;
• working knowledge of packing and installation procedures;
• ability to check the condition of an object in line with accepted conservation procedures;
• exceptional ability to identify and solve problems in pressured and stressful situations (often with limited resources);
• excellent communication skills and the ability to relate to a wide variety of people;
• physical stamina to spend long hours in uncomfortable situations such as freight terminals and dockways, and on trucks and long haul flights.

Museum staff who are assigned the role of courier should be delegated full authority to make decisions about the objects for which they are responsible during the transit and installation processes. They can expect to receive an itinerary detailing every aspect of their trip in advance of the departure. Provision should be made for couriers to have as much access as possible to the handling/loading of the works at all stages of the process, from the time they are packed right through to final installation. Once the installation has been witnessed by the courier it is expected that no one will touch or move the object subsequently, except in case of emergency, until the courier returns to oversee the deinstallation at the end of the exhibition.

Contractual parameters

The standards of care and expectations about the process in the event of loss or damage that inform the role of the courier should be clearly defined in the Loan Contract that covers the transit and installation of an object. Couriers need to be familiar with this contract and any amendments so that they can adhere to it and ensure compliance with its terms. Couriers also need to understand the extent of any delegated authority to make changes to what has been previously agreed by the parties in the contract.

Couriers also need to be aware of the insurance or indemnity arrangements in place for a transit, including any exclusions to this cover. An awareness of the extent of insurance is vital for a courier if they need to make difficult decisions in the course of a transit and/or are instructing contractors (such as agents or airlines) to carry out certain tasks.

The expectations around the care of the courier should also be included in the Loan Contract. This should include:

• the specified class of travel and accommodation;
• the number of days required to carry out the courier tasks (including recovery time before the return journey);
• the amount of per diem provided;
• how and when the courier will be paid to the courier; and
• how airport transfers will be reimbursed.

Personal liability

Taking on the role of courier means taking on a high level of personal responsibility – and it is important couriers make sure that they are indemnified for their actions when taking on this role. While is unlikely that indemnification for the couriers actions would extend to gross negligence, or criminal acts and deliberate wrong doing, it is important that the legitimate decisions made in carrying out this role do not expose couriers to any personal liability in the event of damage or loss. To ensure this it is important to scrutinise carefully the government indemnification or insurance to make sure the actions of the owner and the owner’s representative are covered.

Waivers of liability

If a museum makes the decision to courier on behalf of another institution or owner it is important that they are clear as to their responsibilities and the extent of their legal liability. If a museum is borrowing objects that they are couriering it is likely that they will travel under the museum’s own insurance, in which case the liability for the transit rests with the borrowing museum. If, however, the courier overseeing an object on behalf of one museum who are lending to a third museum, it is important that they make sure that they are not in any way liable for the transit and installation of the object. It is prudent to set up a Waiver of Liability with owner that releases the museum, its officers, trustees, agents and employees from any claims against them for any liability arising out of the loss or damage to the object during the transit and, where appropriate, the installation of the object at the borrowing museums venue.

Supervision options in lieu of a courier

In assessing the risk of a transit it is important to be aware of other supervision options that still allow for a high degree of control during a transit. Please note that the options listed here are framed from the perspective of lending out but can equally be applied to borrowing objects in.

The first option, suitable for air shipments without transshipment stops, is that of supervising the loading at the airport on departure, and asking a representative of the borrowing institution to supervise the unloading on arrival at the destination airport, with the reverse occurring when the object is returned. This option is premised on the idea that a courier can do little if anything, were an incident to occur during the flight. It is of course contingent on the relationship with the borrowing institution, and a presumption that the borrowing institution has the same standards as yours in handling objects. This method of supervision may therefore be best used with like institutions or institutions that are known to yours. If this method of supervision is used it is important to clearly define the procedure for damage to the objects in freight in the loan contract – would you, for example, send a staff member to assess damage if it did occur?

The second option is to buy supervision from a fine art freight company. This can be used in air transits with transshipment stops and is particularly useful in shipments where a courier would not be allowed to access the freight terminal of the airport(s) to oversee handling anyway. This would mean that a representative of the nominated freight company would oversee the handling of the material in the freight environment up to the time that it is loaded onto the aircraft and the aircraft pushes back from its airport gate. This option is used in conjunction with a courier but is also a valid option in the absence of a courier.

Usually fine art freight companies can get a higher degree of access to airports than museum workers and can convey information about what is occurring back to the owner via telephone and/or using photos so that the owner is still involved in the decision-making process. In using this option the museum needs to define clearly its expectations of handling with the designated freight companies (remember you may be using several freight companies in different countries), and be aware that specialist freight companies are contracted on the basis that their liability is extremely limited in the event of damage. It is also important to note that while this option may be less expensive than sending a courier, there are still significant associated costs with this supervision method.

The final option is to share couriers. This could mean sharing courier duties with another Australian institution that is also lending to the same exhibition, or sharing courier duties with the borrower, with the expectation being that a courier from another organisation will oversee your object in at least one direction of the transit. This method of supervision offers substantial cost savings largely because it either narrows the number of couriers required or it means the courier will fly economy class as many museums do not allow their staff to fly business class if the museum is paying for it. It is, however, contingent on clear expectations about the standard of care required, the procedure in the event of damage and the extent of the courier’s decision-making power and liability, all of which should be clearly defined in a contract between the parties.

 Endnotes

[1] The full version of these guidelines can be found at http://ec.europa.eu/culture/our-policy-development/doc/mobility_collections_report/ bizot_group/courier_guidelines_ExecSummary.pdf

INTRODUCTION

While a significant proportion of cultural funding in Australia comes from government sources, the current climate is one of encouraging private giving for cultural purposes. One way that organisations can obtain private support is through sponsorships and strategic partnerships. An alternative is to seek donations.
The differences between sponsorships and donations are significant: an organisation’s relationship with a donor is different in nature, dynamic and expectation. The relationships are also based on completely different tax principles:
A sponsor gets its tax deduction because the promotion and marketing of its business is a ‘business expense’ and therefore deductible. For a sponsor, the tax status of the recipient is irrelevant. The only relevant factor is the purpose of the expenditure.
By contrast, for a donor to get a tax deduction the tax status of the recipient is crucial. It must be an endorsed Deductible Gift Recipient (DGR).
There are no restrictions as to what can be donated. It might be money but it is often collection material. Each species of gift attracts particular administrative requirements intended to promote fairness and transparency in the valuation and tax deduction process.
In this chapter, we look first at the fountainhead of philanthropy – DGR status generally, then describe the Cultural Gifts Program for public collecting institutions and finally briefly look at how organisations that support collecting institutions – but do not themselves come within the definition of a public library, museum or art gallery – can get the benefit of DGR status.

DEDUCTIBLE GIFT RECIPIENT STATUS

If a gift is to be tax deductible, the recipient organisation must be endorsed as a DGR. The rules that govern eligibility are set out in the income tax legislation and it is not the purpose of this chapter to be a comprehensive guide on DGR status – the legislation lists over thirty categories. Simply understand that there are various ways that you can seek endorsement depending on the nature and objects of the organisation.
In the collections world, it is helpful to simplify matters by dividing the world into two distinct types of organisation, each with its own DGR endorsement procedures:
• public museums, art galleries and libraries; and
• cultural support organisations.[1]
Public libraries, museums and art galleries
If you work for a library, public museum or art gallery that gets (or is trying to get) donations, you must read Tax Ruling TR 2000/10. This tax ruling articulates the Australian Tax Office (ATO) interpretation of the words ‘public library’, ‘public museum’ and ‘public art gallery’.[2] This is fundamentally important if your organisation wants to be a DGR[3] or to accept gifts under the Cultural Gifts Program.[4]
The ruling acknowledges that there is no definition of these terms in the Income Tax Assessment Act 1997 (Cth). While the words are to be understood in their ordinary or everyday meaning the ATO will expect a public library, public museum or public art gallery to have the following features:
• its collection is made available to the public;
• it must be in Australia;
• it is owned or controlled by a government or quasi-government authority, or by persons or an institution having a degree of responsibility to the public;
• it is constituted as a library, museum or art gallery, other people recognise it as such, and it conducts itself in ways that are consistent with such a character; and
• it is an institution.
(i) Available to the public
The ruling accepts that the collection of a library, museum or art gallery as being available to the public where it is for use by the public or a section of the public. If such access is minor, the institution is not public. On the other hand, it is not necessary that a collection be made indiscriminately available. Limitations on access can be consistent with availability to the public where they are to protect the collection, ensure orderly access and efficient operation.[5]
In the ruling the ATO accepts ‘that students attending a public educational institution are a section of the public, in this context’.[6]  This is important for all libraries, museums and galleries that form part of universities for whilst some of these are open to the general, non-student public, others certainly are not. Indeed this has interesting consequences for it means that even if a collection is made available only to a particular section of the public,[7] it can still be treated as a public collection.
‘Where a library, museum or art gallery is carried on by an organisation and operated for the profit or gain of its owners or members, the facility is not public. However, the charging of appropriate fees is not, in itself, inconsistent with being a public library, museum or art gallery.’[8]  This is highly significant: it means that charging for entry to the collection does not, of itself, destroy the public nature of the collection and thus, its beneficial tax status. The real question to be asked is purposive: what is the purpose of operating the collection? Is it for ‘profit or gain of its owners or members’?
(ii) In Australia
To be eligible to receive deductible gifts under div 30 of the Act, the public library, public museum or public art gallery must be in Australia. If a facility, recognised as a library, museum and gallery, is established in Australia and makes its collection permanently available to the public in Australia, the ATO accepts that it is in Australia.[9]
Borrowing from and temporarily lending exhibits to overseas public libraries, museums and galleries, do not, in themselves, prevent an institution from being described as being in Australia.[10]
(iii) Structure of the institution
It does not matter whether the organisation is a company, association, trust or government body – but it must have a formal structure. It cannot be an individual or a partnership.
(iv) Management
The institution must be recognised and managed as a public resource. If it is not a government or quasi-government institution it must be controlled by people that have a responsibility to the community arising from their position within the community.[11]
(v) Purpose of the institution
Where the purpose and activities of the entity are wholly those of a library, museum or gallery, there is little difficulty.
But what is the effect of running, say, the gallery shop? This activity is clearly commercial and while associated with the collection and exhibition purposes of the collection, is distinct from it. This issue is cautiously recognised by the ATO. The ruling states: ‘Where other purposes and activities are evident, we only accept the entity as a public library, public museum, or public art gallery if they are minor and consistent with the purposes and activities of a public library, museum, or art gallery.’[12]
Even more complicated is the situation where the principal entity is not a public library, museum, or art gallery, but is an organisation that operates such a collection as a minor part of its larger commercial purposes. A ready example might be a museum operated by and within a large mining company. Clearly the principal purpose of the organisation is commercial and is not that of operating a public museum, gallery or library. Yet one might well argue that as the collection is not operated for commercial profit and is open to the general public, it should attract the tax advantages accorded to ‘public’ collections. To deal with this conundrum the ATO ruling has provided the following guidelines:
‘A part of the entity may be accepted as a public library, museum, or art gallery provided:
• the affairs of the library, museum, or art gallery are separate from the general affairs of the entity;
• the public can readily distinguish the library, museum, or art gallery from the rest of the entity;
• the collection is readily identifiable to the public as the public collection of a library, museum, or art gallery;
• the accounts of the library, museum, or art gallery are separate from those of the rest of the entity; and
• any gifts made to the library, museum or art gallery are used only for library, museum or art gallery purposes.’[13]

THE CULTURAL GIFTS PROGRAM

Although it is sad for an author to admit, the starting point for finding information in the Cultural Gift Program is the Commonwealth government website.[14] It is excellent: simple, informative and practical. However, for those readers who just want a general overview, read on.
Purpose and administration
The purpose of the Cultural Gifts Program is to encourage the making of gifts of significant cultural material to public museums, galleries and libraries. It crosses the boundaries of two federal departments: the ATO and the department responsible for the arts. There are three distinct but related parts to the structure:
Formal responsibility: The Minister responsible for the arts is responsible for the day-to-day administration of the program up to the stage where a donor claims a deduction, and then the process becomes the formal responsibility of the ATO.
Administration: The Cultural Gifts Program is administered by a secretariat within the Department of the Prime Minister and Cabinet (PM&C), Office for the Arts, Canberra;[15]
External advice: The Minister responsible for the arts appoints an expert committee, (the Committee on Taxation Incentives for the Arts), which advises the Minister, the Departmental Secretary and the Commissioner of Taxation on the operation of the program.[16]
This is an efficient division of powers and responsibilities, permitting the ATO to ensure the integrity of the tax components, PM&C to supervise and administer the cultural purpose (the encouragement of gifts to public museums, galleries and libraries), and an outside body of expert knowledge to provide advice to both.
How organisations apply to participate in the program
To participate in the CGP, a collecting institution must apply to the secretariat. It must:
• show that it is endorsed by the ATO under the Income Tax Assessment Act 1997 (Cth) as a DGR on the basis that it is a public art gallery, museum or library (including archives)[17] by providing a copy of the notification from the ATO advising of its DGR status;
• provide a copy of its authorised collection policy, including a mission statement, acquisition policy, collection care, deaccessioning and disposal policy, loans policy and the mechanism for review.[18]
The Cultural Gifts Program from the donor’s view
Where a gift is made under the Cultural Gifts Program the donor not only obtains a tax deduction to the approved market value of the gift but also obtains a capital gains tax exemption in relation to the donation.[19] The tax deduction can be spread over five years.[20]
To obtain the taxation benefits under the Cultural Gifts Program, the gift must be made to a public collecting institution with DGR status and the collecting institution must be willing to accept the gift. Accordingly, the first step for any donor is to find a collecting institution that wants the gift. The would-be donor and the management negotiate the terms of the gift. The institution then arranges the material to be valued. These valuations must be:
• current;[21]
• in writing; and
• for the GST inclusive value.
Limitations on deductions
There are a number of limitations built into the system:
(i) if the property is acquired by the donor with the purpose of giving it away and the amount paid for the gift was below market value, the valuation for the purposes of tax deductibility is the lesser of the average of the market valuation and the amount paid;
(ii) testamentary gifts[22] do not qualify for a tax deduction;
(iii) if the donor puts conditions on the gift, this can affect the value of the gift and thus the value of the deduction that will be approved;[23]
(iv) the deduction may be disallowed if the donor receives ‘advantage of a material mature as a result of the gift;[24]
(v) if an artist or dealer makes a gift which is part of their trading stock, the deduction will be restricted to the cost of acquiring or producing the
item(s).*
Further information
Detailed information about the Cultural Gifts Program is available on the Department’s website:  http://www.arts.gov.au/tax_incentives/cgp

CULTURAL ORGANISATIONS (THAT ARE NOT COLLECTING ORGANISATIONS)

One way of becoming a DGR is to be registered on the Register of Cultural Organisations (ROCO). The Register is maintained and administered by the Office for the Arts, the Department of the Prime Minister and Cabinet (PM&C).[25]
Cultural bodies eligible for listing on the Register are those whose principal purpose is the promotion of one or more of the cultural activities specified in sub-div 30-F, sub-s 30-300(2) of the Income Tax Assessment Act 1997 (Cth) (the Act): literature; visual, community, performing or Aboriginal and Torres Strait Islander arts; music; crafts; design; television; video; radio; film; or movable cultural heritage.
The ROCO is not the appropriate avenue for collecting institutions to attain DGR status. However there are many organisations that are related to collecting institutions that are listed on, or may be eligible for, the ROCO. For example, the Art Gallery of NSW attracts tax-deductible status because it is a ‘public art gallery’ within the Cultural Gifts Program[26] – but the Art Gallery Society of NSW attains its tax-deductible status through its registration on the ROCO. In brief, the collecting organisation gets its DGR status under the Cultural Gifts Program while related professional bodies and support organisations may be eligible for the ROCO.
To qualify for endorsement as a DGR the cultural organisation must:
• have as its principal purpose, the promotion of cultural activities in accordance with subsection 30-300(2) of the Act;
• be a company, incorporated association, trust or statutory body;
• have an Australian Business Number;
• maintain a separate public fund;
• issue receipts;
• be based in and operate in Australia.[27] Its causes and beneficiaries must also be in Australia.
There are a number of important restrictions placed on organisations on the ROCO, for example, bequests under a will are not tax deductible; and registered organisations or funds cannot accept donations on behalf of another non-registered organisation or individual.

WHAT IS A ‘GIFT’?[28]

Gifts have the following characteristics:
• there is a transfer of money or property: The key word is ‘transfer’. The legal ownership of the asset must change hands. Title must pass. It cannot be some form of loan.
• The transfer is made voluntarily: you cannot be forced to make a gift. If it is a true gift, the owner must choose to transfer ownership. For example, a requisition cannot be a gift.
• The transfer arises by way of benefaction: This one is a little hard to test. Who can possible tell what a donor’s true motives may be? However, one can say that this is one factor that distinguishes a donation from a sponsorship; and
• The donor must not receive any other benefit from the donation, other than the tax-deductibility of their donation.
This last point creates much confusion. How can the DGR reinforce the generous behavior and thank its donors, without endangering the tax deductibility of the benefaction? An acknowledgment that a recipient makes in appreciation of a payment can be consistent with the payment being a gift. Other acceptable forms of acknowledgment include stickers, mention in a newsletter or periodical, and plaques if they are of small cost and prominence. However, enlarging the acknowledgment into forms of advertising would prevent the payment from being a gift.[29]
Many forms of fundraising are not ‘gifts’ for tax purposes. For example, the following payments are not gifts:
• purchases of raffle or art union tickets;
• purchases of chocolates, pens etc;
• the cost of attending fundraising dinners, even if the cost exceeds the value of the dinner;
• membership fees;
• payments where the person has an understanding with the recipient that the payments will be used to provide a benefit for the ‘donor’;
• the gift of a service, as no money or property is transferred to the DGR;
• volunteers’ expenses in carrying out the voluntary work, and the value of unpaid work.
Gift types
To be tax deductible, a gift must fall within one or more of the following gift types. For each gift type, this section explains the types of gifts covered, the types of DGRs that can receive the gifts, and valuation issues.
(i) Money
To be deductible the gift must be over $2. It can be in Australian or foreign currency and can be made in cash, cheque, credit card or electronic transfer. (It does not cover gifts made under a will.) Gifts of money can be made to any DGR.[30]
(ii) Property valued by the Tax Office at more than $5000
Type of gift:
Any kind of property may be gifted. To be deductible, the property must be valued by the ATO at over $5000. There are particular rules that apply depending on whether the property was purchased more or less than 12 months prior to the gift.
Recipients
This gift type applies to all types of DGR (except for gifts to the Commonwealth for the purposes of Artbank).

Valuation
In general, if the purchase occurred less than twelve months prior to the gift, the amount of the deduction will be the lesser of:
• the market value of the property on the day the gift is made; and
• the amount paid by the donor for the property.
If the purchase occurred more than twelve months from the date of the gift, the amount of the deduction will be the value of the property as determined by the ATO at the time of the gift.
For donors who are registered for GST, or are required to be registered, the amount paid is reduced by the amount of the GST credit (if any). This is because the donor effectively receives a refund of the GST paid on purchasing the gifted property.
If GST was not included in the price of the property purchased by the donor, no adjustment would be made. Examples are purchases from businesses that are not registered for GST and not required to be registered.
For donors who are not registered for GST, and not required to be registered, the amount paid is not adjusted to exclude GST.
(iii) Listed shares valued at $5 000 or less, and acquired at least twelve months before the gift was made
Type of gift
This gift type covers the gift of shares, but only if four conditions are met:
• the shares were acquired in a listed public company;
• when the shares were gifted, they were listed for quotation on the official list of an Australian stock exchange;
• the shares were acquired at least twelve months before they were gifted; and
• the market value of the shares was $5000 or less on the day they were gifted.
It does not cover gifts made under a will.
Recipients
This gift type applies to all types of DGR (except for gifts to the Commonwealth for the purposes of Artbank).
Similar to property donations, there are rules that apply to the valuation of the shares depending on whether they were purchased more or less than twelve months from the date of the donation.[31]
(iv) Trading stock disposed of outside the ordinary course of business
Type of gift
This gift type covers the trading stock of a business, but only if the gift is a disposal of the trading stock outside the ordinary course of the donor’s business. In other words a furniture shop owner can give a bookcase to the DGR because the shop owner’s ordinary course of business is ‘selling’ not ‘giving’ furniture.
This gift type applies to all types of DGR (except for gifts to the Commonwealth for the purposes of Artbank).
Valuation
The value of the gift is the market value of the trading stock on the day the gift was made.
(v) Gifts made under the Cultural Gifts Program
Type of gift
This gift type covers gifts of culturally significant property (except property that is an estate or interest in land or in a building or part of a building) made under the Cultural Gifts Program.
Recipients
This gift type applies to the following DGRs:
• DGRs that are public libraries, public museums, public art galleries or institutions consisting of two or more of these;
• DGRs endorsed as DGRs for the operation of a public library, public museum, public art gallery or an institution consisting of two or more of these;
• the Australiana Fund; and
• the Commonwealth for the purposes of Artbank.
The property must be accepted by the DGR for inclusion in a collection it is maintaining or establishing. For Artbank, the property must be accepted by the Commonwealth for inclusion in a collection maintained or being established for the purposes of Artbank.
Intending donors should contact the DGR, then they or the DGR should seek more information from the Cultural Gifts Program Secretariat in PM&C.
Valuation
The general rule is that the amount of the deduction is the average of two or more written valuations made by valuers approved by the Secretary to PM&C.
However, if the property was
• acquired for the purpose of giving it away,
• acquired subject to an arrangement that it would be given away, or
• acquired (otherwise than by inheritance) less than one year before making the gift,
the valuation of the gift is the lesser of the amount the donor paid for the property and the average of the written valuations.
Where the written valuations for the property do not fairly represent the GST-inclusive market value of the property, the deduction is adjusted to the GST-inclusive market value on the day the gift was made.*
Written valuations are not required if no amount is included in the donor’s assessable income in relation to the gift, and an amount would have been included if the property had been sold rather than gifted. An example could be property purchased with a profit-making intention that is later disposed of by gift. The valuation of the gift is the amount paid for the property, or if the property had been manufactured or created, the amount allowable as a tax deduction if it had been sold by the donor.
If the donor is registered for GST, or required to be registered, these amounts may need to be adjusted.
For this gift type, donors can make an election to spread the deduction over a period of up to five years.
Conditional gifts
A gift deduction is reduced by a reasonable amount if property is donated subject to conditions on the ownership, custody and control of the property.
Capital gains tax exemption
Gifts of property made under the Cultural Gifts Program are exempt from capital gains tax. Any capital gain or loss made from such gifts is disregarded.
This rule does not apply if the donor or an associate of the donor later acquires the gift for less than market value.
(vi) Gifts made under the Cultural Bequests Program
This program has been suspended. Gifts made in a deceased’s will are not tax deductible.
(vii) Places included in the National Heritage List, the Commonwealth Heritage List or the Register of the National Estate
Type of gift:
This gift type covers gifts of places included in:
• the National Heritage List, or the Commonwealth Heritage List, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), or
• the Register of the National Estate under the Australian Heritage Council Act 2003 (Cth).
Places included in these lists are:
• places of outstanding natural, Indigenous or historic heritage value to the nation
• places of significant natural, Indigenous or historic heritage value owned or leased by the Commonwealth, and
• places of significant natural, Indigenous or historic heritage value throughout Australia.
This gift type does not cover gifts made under a will.
Recipients:
This gift type applies to DGRs that are National Trust bodies.
The gift must be accepted by the National Trust body for the purpose of preserving it for the benefit of the public.
Valuation:
The general rule is that the valuation of the gift is the average of the written valuations provided by valuers approved by the Department of the Environment, Water, Heritage and the Arts (DEWHA).

SUMMARY OF CULTURAL ORGANISATIONS AND GIFTS

Cultural organisations[32]

Endnotes

[1] See ss 30–100 of the Income Tax Assessment Act 1997 (Cth).
[2] TR 2000/10 replaces earlier the guidelines dealing with such gifts, (Taxation Rulings IT 290, IT 2020, IT 2032 and IT 2676).
[3] Under div 30 of the Income Tax Assessment Act 1997 (Cth).
[4] See item 4 of the table in s 30–15 of the Act (gifts under the Cultural Gifts Program), and sub-div 30-B items 12.1.2 – 12.1.5 in s 30–100.
[5] TR 2000/10, para 6. (For example a library can operate as a reference collection only.)
[6] Ibid, para 7.
[7] For example, medical collections available only to medical students and health professionals.
[8] TR 2000/10, para 9.
[9] Ibid, para 12.
[10] Ibid, para 13.
[11] These are referred to as ‘responsible persons’ and include doctors, JPs, judges and other members of the legal profession, councillors, clergy and church authorities, directors and senior executives of large companies, accountants, medical practitioners (and other persons who belong to a professional body that has a professional code of ethics and rules of conduct), senior members of the teaching profession, persons who have been awarded an honour, persons who hold (or have held) public positions (eg appointed by Government ministers), and persons who hold a public or elected office such as town clerks, councillors, mayors and MPs.
[12] Ibid, para 10.
[13] Ibid, para 11.
[14] http://www.arts.gov.au/tax_incentives/cgp 
[15] A comprehensive Cultural Gifts Program Guide is available at  http://www.arts.gov.au/tax_incentives/cgp . It is essential that reference be made to this document when considering application for participation in the Cultural Gifts Program. Much of the information in this section is derived from that official document.
[16] The Committee on Taxation Incentives for the Arts reviews the valuations of gifts to ensure that they reflect current GST market value; certifies that the gift complies with the guidelines; and advises the Commissioner of Taxation on aspects of gifts which may assist the Commissioner to exercise discretionary powers. (Ibid at p 13.)
[17] Endorsement is pursuant to sub-s 30–15(1)
[18] Ibid at p 3.
[19] In other words, the donor does not pay capital gains tax on the difference in value between the purchase price and the assessed market value at the time of the donation.
[20] For information on spreading and apportionment, see Cultural Gifts Program Guide at p 11.
[21] The gift must be valued to give its market value either on the day of the gift or a date within ninety days before or after the gift was made.
[22] This includes gifts bequeathed under a will; gifts made by the executors from the corpus of the will; and gifts by trustees acting on the instructions under a will.
[23] For example if conditions are attached to the gift that prevent the institution having full custody, control and clear title, the ATO may reduce the amount of the deduction (s30–220).
[24] Such as free or discounted entry or membership.
*If an artist or dealer makes a donation from their personal collection, the donor must demonstrate to the satisfaction of the Commissioner of Taxation that the item(s) were not held for commercial gain. In order to qualify for a deduction of the current market value, the donor must have held the item(s) in their personal collection for a period of at least twelve months. See p 19 of the Cultural Gifts Program Guide.
[25]  See more detailed information on ROCO at: http://www.arts.gov.au/tax_incentives/register_of_cultural_organisations  , and the procedure for seeking endorsement as a DGR is set out at:  http://www.ato.gov.au/nonprofit/content.asp?doc=/content/34490.htm&page=2&H2.
[26] See discussion of the Cultural Gifts Program above.
[27] The Australian National Maritime Museum has an interesting twist on this. Donors who are US citizens can get a tax deduction in the US by donating to a company established in Delaware that has been given tax-deductible status by the US Government. Of course that does not mean that the US company is itself a DGR: it gets the US donations and transfers them to the Australian parent body.
[28] This information is taken from the Gift Pack Guide at: http://www.ato.gov.au/nonprofit/content.asp?doc=/content/34496.htm&page=2&H2.
[29] Gift Pack at http://www.ato.gov.au/nonprofit/content.asp?doc=/content/34496.htm&page=2&H2 .
[30] Except gifts to the Commonwealth for the purposes of Artbank.
[31] For information on gifts of shares valued at $5000 of less, see Facts Sheet (NAT 71222).
* In cases where the Committee is not satisfied that the average of the valuations represents the GST inclusive market value of the donation on the day it was made, the Committee will refer the donation to the Commissioner of Taxation for determination. See Summary chart on p 15 of the Cultural Gifts Program Guide.
[32] GiftPack: (referenced to chapters are to the chapters in the GiftPack)  http://www.ato.gov.au/nonprofit/content.asp?doc=/content/34490.htm&page=13&H13.

Karen Mongey is a registered Australian Patent and Trade Mark Attorney. She holds a PhD in Chemistry from Dublin City University, and a Master of Industrial Property from the University of Technology, Sydney. Karen has worked in intellectual property prosecution and management for a number of years, and has been providing advice to the Australian Museum since 2006.

This chapter benefited from the extensive comments from Adam Flynn, Senior Legal Officer, National Film and Sound Archive.

INTRODUCTION

As consumerism grows, it is evident that visitors to the cultural and arts sector are not immune to this trend. They often wish not only to immerse themselves temporarily in the subject matter, exhibition or event, but also to have a take-home physical reminder of it. As a result, many museums and galleries find themselves in the business of creating tangible products in the form of mementos sold to visitors for the purpose of generating revenue to the institution. This is increasingly viewed as an extension of the public outreach and exhibition mandate of museums and galleries.
In this context, where collecting institutions create, manufacture and distribute products that are tied to the service they provide, design law becomes relevant. While perhaps not as fundamental to the activities of collecting organisations as copyright (discussed in Chapter 26), the principles of design law are becoming more important for the staff of collecting institutions. As an example, a museum may decide to leverage an exhibition of designer chairs by creating key-rings of the chairs to be sold as momenta in the museum shop. The reproduction of a collection item in such a manner can not only raise the risk of infringing design rights, but also copyright and moral rights – or all of them. The intellectual property issues surrounding this example, and others like it, form the subject matter of this chapter.
A design refers to the overall appearance of a product resulting from one or more visual features of a product.[1]  Design registration protects the visual features of products, including the shape configuration, pattern and ornamentation, which, when applied to a product, give it a unique visual appearance. It protects the look and the shape of the object.
Design registration and protection is immediately relevant for a wide range of material that may feature in the collections of such museums as the Powerhouse Museum in Sydney. This museum’s diverse collection spans, among other things, technology, design, industrial and decorative arts. This particular museum ‘engages with contemporary technologies to showcase Australian innovation in the creative industries, developments in science and ecologically sustainable technologies’ [2] and provides for an interesting case study in which issues of design law may arise.[3]  Examples of collection objects that may qualify for design protection include fashion items, designer furniture, and designs of cultural significance. Furthermore, institutions may commission, or its staff may create, designs worthy of registration and protection under this intellectual property regime, for example, an exhibition design showcase or a packing case for travelling objects.
Unfortunately, it is often not a simple matter to identify which intellectual property regime (design, copyright or both) is appropriate to the reproduction of a given collection item, particularly where that item could be described as being inherently an industrial design. Perhaps the most daunting intellectual property area for institutions with contemporary collections akin to that of the Powerhouse Museum is that in which a collection item may be protected under both design and copyright intellectual property law. This area of law is commonly referred to as the overlap between design and copyright. Examples of collection material that may fall within the realm of this intricate area of law include modern pieces of design furniture, fashion items and objects of decorative arts such as modern pottery and precious ceramics.[4]
This chapter seeks to outline and identify issues in order to assist galleries, museums and libraries to avert potential problems in the reproduction of objects in their collections that are protected designs (and to identify those that are not protected and therefore may be reproduced). In the first part of this chapter, an overview of Australian design law is given, with reference to material that may be protected under design law and displayed and held in collections of galleries and museums. The intellectual property issues facing these institutions as they move towards adopting initiatives to provide unprecedented access to this collection material by both real and virtual avenues is discussed. In the later part of the chapter, the design and copyright overlap is discussed, focusing on its impact on various merchandising and exhibition activities.

DESIGN LAW

What is protected under design law?
Design law can protect the visual features of products, whether these features are two-dimensional (such as patterns applied to the surface of a product, for example shirt fabric design) or three-dimensional (such as the shape or form of the product, for example furniture design) if certain conditions of novelty and distinctiveness are met. How the product operates is not protected by design law, although such mechanics may be suited to protection under patent law.
Under the Designs Act 2003 (Cth), a ‘design’ is defined in relation to a product as ‘the overall appearance of the product resulting from one or more visual features of the product’. ‘Product’ is defined in Section 6 of the Act as a ‘thing that is manufactured or handmade’ [5], while the term ‘visual feature’ includes ‘the shape, configuration, pattern and ornamentation of the product’.[6] It is not compulsory for a visual feature to serve a functional purpose.
That said, a product must have some function of utility other than that of merely carrying the design. So a design printed on the cover of a book has not been applied to a ‘product’ for the purposes of the Act. In contrast, designs printed on wallpaper are considered to have been ‘applied’, because the wallpaper is a product of manufacture that has a functional purpose as wall decoration.[7]

What protection is conferred under design registration?
By registering a design under the Designs Act 2003 (Cth), the registered owner gets a monopoly over the design.[8]  The registered owner acquires the exclusive right to apply the registered design to a product, or use such a product, in any way for the purposes of any trade or business. These rights are personal property and are capable of assignment and of devolution by will or operation of law.[9]

Duration of rights
The term of protection for a registered design is a maximum of ten (10) years from the filing date, comprising an initial term of five (5) years, with the possibility of a further five (5) years if the registration is renewed.[10]

Features required for registration
A design can be registered in Australia provided that it is both ‘new’ and ‘distinctive’.[11]

1. NEW
The criterion of new can be satisfied if the design is not identical to any design previously published anywhere in the world, nor any design previously used publicly in Australia, prior to the date on which the design application was made.[12] A design is considered to be published if it appears on the Internet.

2. DISTINCTIVE
The criterion of distinctive is satisfied unless the design is substantially similar in overall impression to another design, with more weight to be given to the similarities between the designs than to their differences.[13]

It is perhaps basic to the concept of a design that it gives individuality to the product to which it is applied – and that this can be judged visually. There must be sufficient individuality of appearance to distinguish the article/product from its ‘fundamental form’. Features of a design that do no more than convey the idea of a general shape appropriate to a function that the product is intended to perform and that are consistent with a variety of particular shapes in products copying those features, cannot be protected under the Designs Act 2003 (Cth).

Registration and administration
To obtain protection the design must be registered by applying to the Designs Office at the federal government agency, IP Australia.[14]  Australian registered designs are administered by IP Australia, and the process is initiated when the owner submits a design application to IP Australia (including representation(s) of the design and the prescribed application fee). IP Australia then issues a design application number, and a filing date is established from which the applicant has a six month period to request the design to be registered or published.
IP Australia maintains a database of designs registered under the Designs Act 2003 (Cth) and information on these designs can be accessed by the public via the Australian Designs Data Searching (ADDS) system.[15]  Examples of registered designs can be found on the IP Australia website.[16]  The ADDS system allows the public to search applications for design registration and registered designs, via a wide range of data fields. The search functionality allows searching on names of applicants or owners, lodgement and registration information, article or product in respect of which the design is registered, date of registration and International Design Classification.

Enforcement
Publication will prevent others from registering the design, but does not confer any rights itself. Registration gives the owner the right to use, sell or license that design for a maximum of ten years. After that time, design protection no longer applies. For a design owner to enforce a design registration in Australia, the design must first be successfully examined and certified by IP Australia. Design registration is jurisdictional and an Australian registered design will only be afforded protection within Australia.
For the duration of the registered design period, it is an infringement of the exclusive rights of the registered design owner to:

• make a product that embodies the design;
• import, sell, hire or dispose of a product that embodies the design; and
• authorise another person to do any of these things.



Dealing with collection items protected by design registration in Australia
Where museums and galleries hold objects in their collections that are protected by current Australian design registrations belonging to a third party, care should be taken to avoid infringement of the design owner’s rights. It is worth noting that there are no ‘exceptions’ contained within the Designs Act 2003 (Cth) specifically relevant to collecting institutions.[17] You may be breaching the rights of the design rights owner even though you are genuinely acting in the interests of the collection or the object.

1. IS PERMISSION REQUIRED TO EXHIBIT A COLLECTION ITEM THAT IS PROTECTED BY A CURRENT DESIGN REGISTRATION IN AUSTRALIA?

Neither acquiring a collection item that is protected by a current Australian design registration nor exhibiting it is likely to constitute an infringement under the Designs Act 2003 (Cth).[18] If staff are concerned, it would be wise to consult any conditions of sale attached to such a product. However, it is unlikely that the display of the article would be considered ‘use for the purposes of any trade or business’.[19]
Generally, the curator will ensure that the designer is credited. This is particularly important where it is unclear whether copyright protection subsists in the object in addition to any design rights. Where there is a copyright/design overlap, the moral rights obligations provided under the Copyright Act 1968 will apply. This is discussed in more detail later in this chapter.

2. IS PERMISSION REQUIRED TO PRODUCE, AND OFFER FOR SALE, THREE-DIMENSIONAL REPLICAS OF A COLLECTION ITEM THAT IS CURRENTLY PROTECTED BY DESIGN REGISTRATION?

Whether it is for a public collection or not, a person infringes a registered design when the person makes, sells, hires or imports a product, or uses for business or trade, a product that embodies the design, or a design that is substantially similar to it.[20] The production and offer for sale of replicas (life-size or miniature) of a collection item protected by a current design registration, without the express permission or licence of the registered owner, is likely to be an infringement of the registered design, because a replica is a product (for example a key-ring) that is either identical or substantially similar in overall appearance to the protected item. This could potentially lead to legal action, resulting not only in costs, damages and loss of revenue but also unwanted public embarrassment.
Where design registration has expired, the collecting institution is free to replicate the collection item. When the term of the design registration expires, not only does the design protection cease; the designer is prohibited from invoking copyright to protect against products that would have otherwise infringed. That said, care should be taken to ensure that the public is not misled to believe that the replicas are endorsed by (or originate from) the designer, as this could lead to a legal action of passing off against the collecting institution.[21]

THE OVERLAP BETWEEN DESIGN AND COPYRIGHT PROTECTION

Before commencing on this section of the overlapping of the provisions of the Designs Act 2003 (Cth) and the Copyright Act 1968 (Cth), it is useful to reiterate the object of each piece of legislation separately, and to acknowledge the significant differences in the nature and intended scope of protection that each system provides.

The intended objects of design and copyright law
The objective of design law is to protect the visual features of products,
• having an industrial or commercial use,
• where multiple copies are to be made.
This is often referred to as the ‘industrial application’ of the design. In effect, design law protects the visual appearance of manufactured products under a registered system, with exclusive exploitation rights lasting for a period of up to ten years. Unlike copyright protection, design protection is not automatic, and the object of registration is to entitle the industrial designer to protect the design against the unfair competition of free copying for the ten-year term.
In contrast, the object of copyright is to automatically assign a set of exclusive rights to original material that fall within the two broad categories mentioned earlier in this book (‘works’ and ‘subject matter other than works’)[22] for the purposes of protecting the creator’s skill, labour and judgement involved in its production (as opposed to any creative merit)[23] upon creation. The term of copyright protection varies according to the type of material under consideration. However, duration of copyright is in general substantially longer than the maximum ten-year term afforded by registered design protection.[24]
As covered in Chapter 26, copyright risks are considerable for a cultural institution in its dealings with collection items, including when reproducing them in photographs or as replicas. However, where a collection object (which may in itself be an industrial design) is being used to create another product, it is design rights that usually need close consideration.

How does the overlap happen?
Under certain circumstances, material that qualifies for copyright protection may also be eligible for design registration. It can often be problematic to categorise with certainty a work as inherently artistic and thus protected by copyright, or as an industrial design, and therefore more appropriately protected under design law. In a well-presented essay on the subject, Ian McDonald (formerly of the Copyright Council of Australia) has succinctly summed up the conundrum as follows:

Motorcycle parts belong firmly in designs law; a John Coburn painting belongs firmly in copyright law; industrial moulds belong firmly in designs law; a Robert Klippel sculpture belongs firmly in copyright law, albeit they often incorporate industrial items. But the difficulty is in the middle area – in relation to applied design which has some sort of artistic integrity, rather than a merely utilitarian design – where should the legislation draw the line with a Philip Starck coathanger; or a BANG design table?[25]

Furthermore, the possibility of dual protection under both copyright and design law arises because the rights of a copyright owner in a two-dimensional ‘artistic work’ include the right to reproduce the work in a three-dimensional form. An ‘artistic work’ is deemed to have been reproduced if a two-dimensional work is produced in three-dimensional form or if a three-dimensional work is produced in two-dimensional form.[26]  As a result, copyright protects potentially all commercial and industrial products that originate as drawings (such as engineering drawings or plans).
Dual protection under intellectual property regimes is generally viewed in a negative light. As a matter of policy, it is considered that the extended period of copyright protection in the industrial property domain, compared with the ten-year term of protection provided by design registration, would cause serious problems of uncertainty and indeed unfairness.[27]

How does the overlap affect collecting organisations?
This tricky area of law in which design protection bleeds into copyright protection is particularly relevant for collecting institutions wishing to reproduce an object which may be considered a ‘design’ (for the purposes of the Designs Act 2003 (Cth)) and/or an ‘artistic work’ (for the purposes of the Copyright Act 1968 (Cth)).[28]  Collecting organisations are increasingly required to make an informed decision as to whether such an object is protected under copyright or design law (or both) prior to any reproduction.
For example, what of Verner Panton’s classic ‘Panton Chair’ which has won various design prizes worldwide and graces the collections of numerous renowned museums – is it a design or a work of art?[29]  Or Castiglioni’s iconic ‘Arco Lamp’ designed in 1962, and which can be found in the permanent design collection of a number of prestigious museums? The question is which form of intellectual property protection needs to be considered before reproducing such an object in either three-dimensional or two-dimensional form – design, copyright or both?
While the overlap provisions contained in the relevant statues limit the protection available for designs in this overlapping area, there are incidents in which dual protection (copyright and design protection) is possible. The following synopsis provides a general guide to the key legal principles of the overlap chiefly relevant to collecting organisations.[30]  Some hypothetical examples encountered by collecting organisations follow this discussion, with a view to bringing to life the academic concepts and providing a practical meaning.

1. CIRCUMSTANCES IN WHICH COPYRIGHT AND DESIGN PROTECTION OF A COLLECTION OBJECT MAY BE LOST.

The Copyright Act 1968 (Cth) contains provisions that limit the copyright protection for designs (artistic works) that are mass-produced in a three-dimensional version.[31]  The following incidents in which copyright protection of an artistic work embodied in a design may be lost (unless dual protection is possible) are of importance to collecting organisations.

• Once a design is registered under the Designs Act 2003 (Cth), only design rights apply when considering reproduction of the design.[32]  That is, copyright protection is lost, unless dual protection is possible (see 2 below).
• Where a design application has not been made, copyright protection of the artistic work may be lost where the design is industrially applied and commercially exploited.[33]  This is the case unless the work is one of artistic craftsmanship (discussed in 3 below), in which case copyright will still be enforceable.[34]  Industrial application generally occurs where a design is applied to more than fifty articles.[35]  However, this is not a hard and fast rule and depends on the circumstances, and industrial application can also occur when smaller numbers of articles have been produced.[36]

2. CIRCUMSTANCES IN WHICH A COLLECTION OBJECT MAY BE PROTECTED UNDER BOTH COPYRIGHT AND DESIGN LAW (DUAL PROTECTION)

Some collection objects may be eligible for copyright protection and simultaneously registered as a design. There may be dual protection. In particular, a registered design of a two-dimensional pattern or ornamentation that results in the reproduction of an artistic work when applied to the surface of an article retains copyright in the ‘artistic work’ and enjoys dual protection. For example, a painting screen-printed on a T-shirt or applied to a mug. Where collection objects fall in this category, copyright may coexist with any registered design rights. Where unauthorised reproductions are made, infringement actions may be taken against the collecting institution in respect of either or both rights.

3. WORKS OF ARTISTIC CRAFTSMANSHIP
As mentioned above, a ‘work of artistic craftsmanship’ which is ‘industrially applied’ retains copyright protection.[37] Neither the Copyright Act 1968 (Cth) nor the Designs Act 2003 (Cth) contains any definition of what constitutes a work of artistic craftsmanship. Furthermore, no precise definition of the term has been agreed upon by case law. So whether an object falls within the scope of this definition is subject to the interpretation of the collecting institution. Due to the difficulties arising from the interpretation of this phrase, it is often unclear whether an object falls into this category. Generally, the greater the need for a design to satisfy the need for functional or utilitarian requirements, the less likely it will be considered a work or artistic craftsmanship.
The following bullet points serve as guidelines to assist collecting organisations in deciding whether an object falls within the scope of this category.[38]

• To be considered a work of artistic craftsmanship, the object must be of artistic quality and involve craftsmanship.[39]
• To possess artistic quality, the object need not be one of fine art but must have more than mere visual appeal.
• ‘Craftsmanship’ does not necessarily require that the object is handmade.
• There must ‘be real and substantial artistic effort’ which is not constrained by ‘utilitarian considerations’.[40] Where functional characteristics of the object can be deemed to constrain the aesthetics of the object, the object is less likely to be considered a work of artistic craftsmanship. That said, the object can be functional, such as a chair or a lamp.
• A critical and deciding factor is the original intention of the artist in creating the work;[41] when designing the object, did the designer have any intention of creating a work of artistic craftsmanship?

In an attempt to determine which category of intellectual property is relevant to the reproduction of an object, curators and staff may find difficult situation of dissecting the aesthetic aspect from the utilitarian function of the collection item. By assessing the nature of the collection item, they may be inadvertently called upon to define art – a conundrum that surely does not form the part of the job description of even the bravest curator.

PRACTICAL EXAMPLES ENCOUNTERED BY COLLECTING INSTITUTIONS

So where does this difficult area of intellectual property legislation leave us? What are the practical implications for staff in collecting institutions wanting to market and leverage items of industrial design within their collections?[42] While products commercially exploited as three-dimensional industrial designs will generally be denied copyright protection with respect to three-dimensional reproductions, other copyright reproduction rights may still subsist. What about photography of a registered design – could this potentially infringe copyright of the designer? Is permission required to include images of a three-dimensional collection item that is currently protected by design registration in Australia in museum brochures, exhibition material and in online publicly accessible databases?
These questions are explored further in relation to a number of practical examples. However, in view of the legal complexity of the design and copyright overlap, the following practical examples are provided to staff of collecting institutions as a guide only, and provide an indication as to when to seek legal advice.

Example 1: Museum X purchases a stylish hand-crafted chair made by Y based upon an innovative design by Y. Museum X wishes to form miniature replicas of the chair for sale in the Museum shop.

When considering whether to reproduce, in three-dimensional form, an object that forms part of a contemporary collection, a series of questions that consider the relevant intellectual property regimes (copyright and design) needs to be addressed by staff. A decision tree is given below with respect to this example.

The answers to the questions posed above depend on the particulars of the chair (object) in question and the surrounding facts. While collecting organisations may opt to decide themselves whether an object falls within the definition of a ‘work of artistic craftsmanship’, or whether ‘industrial application’ of the design has occurred, it should be noted that uncertainties will arise from the interpretation of these phrases. The guidelines given earlier in the chapter may be followed. However, a direct answer cannot be given here, other than to say that the potential for infringement by Museum X of Y’s rights exists.
Where it is decided that the chair is protected by copyright (the chair is considered a work of artistic craftsmanship), the moral rights of the designer will need to be respected. These are discussed in detail in the previous chapter. In the example above, the chair should not be modified in any way without permission of the designer, and the designer should be attributed. [43] Where it is decided that the chair was protected by a design registration that has since expired, care would still need to be taken to avoid any claims of passing off by the designer. That is, it should be made clear that the replicas originate from the collecting organisation and not the designer.[44]

Example 2: Museum A purchases a chic modern floor lamp that it considers a work of art from Designer B. Museum A wishes to include images of the lamp in a book that will be used to advertise Museum A’s collection.

In this example, it is clear to Museum A from the onset that they are dealing with a work of artistic craftsmanship, and following the decision tree given in Example 1 is not required. It is immediately evident that Designer B can enforce copyright with respect to the use of his or her lamp and any reproductions of it. It would be advisable for Museum A to negotiate with Designer B and to obtain a license with respect to use of images of the lamp (discussed in more detail in Chapter 26). This would be best done at the time of purchasing the lamp from the designer. On exhibiting the lamp, Museum A must observe the moral rights of Designer B.

Example 3: Gallery Z purchases one-off fashion garments, costumes and jewellery pieces (‘the material’) by Designer A. Gallery Z wishes to exhibit the material and include photographs of the material in its merchandising leaflets. Gallery Z is also considering making and selling reproductions of the material in the Gallery shop.

Purely two-dimensional designs (such as the drawings on fashion garments) have the ability of dual copyright and design protection. Where products reproduce the pattern or ornamentation of a design, care should be paid to existence of copyright and design overlap, where there is a risk of infringing design rights and copyright in these visual features.[45]
In this example, it is unlikely that Designer A will have considered design registration. It is likely however, that the material is protected by copyright, all being ‘works of artistic craftsmanship’. Gallery Z would have to consider carefully its use of these collection items, attributing Designer A in their exhibition (that is, to respect the moral rights of the designer), and negotiating reproduction rights of the material for any gallery merchandising material.

CONCLUSION

The area of design law, and in particular the legislative framework which has been drafted to control the interface between design and copyright protection, is complicated. Clearly, the issues and considerations that any particular museum or gallery may face with respect to design law will depend greatly on the nature of the material held within its collection as well as the material presented in its exhibitions and programs, and whether this material is also protected under copyright law. Issues of design law and design or copyright overlap may arise in areas as diverse as collection management, exhibitions, merchandising, public education programs, publications and websites.

Collecting institutions should not rely on specific examples given in this chapter for use of its collection material, but should get specific advice for their particular situation. Since this is clearly a difficult legal area which is subject to interpretation, it would be advisable for collecting organisations to proceed with any reproductions with caution. With respect to potential infringements perhaps the old adage ‘prevention is better than cure’ rings very true. If in doubt, and in particular where the reproduction is to be used in a publicly accessible environment (for example, shop) for either profit to the collecting institution or otherwise – consult all paperwork received with the object, ask permission of the designer, seek a licensing arrangement where appropriate or seek further legal advice. This is of course of particular importance prior to any merchandising ventures that may later see the institution in muddy water.
For further information, see the references given in the section below.

CONTACTS FOR DESIGN LAW IN AUSTRALIA AND FURTHER READING

1. IP Australia www.ipaustralia.gov.au/.
2. Copyright Council of Australia www.copyright.org.au/.
3. Intellectual Property, Third Edition, Anne Fitzgerald and Dimitios G Elidaes, Lawbook Co., 2008.
4. Arts Law Centre of Australia – http://www.artslaw.com.au/.
5. Intellectual Property: Text and Essential Cases, Third Edition, Rocque Reynolds and Natalie Stoianoff, The Federation Press, 2008.
6. ‘WIPO Guide on Managing Intellectual Property for Museums’ available at http://www.wipo.int/copyright/en/museums_ip/.

Endnotes
[1] Designs Act 2003 (Cth) at s 5.
[2] http://www.powerhousemuseum.com/about/index.asp
[3] The discussion in this chapter is based on Australian law. Design law, and also that of copyright, in other countries may be similar in many respects, but there are aspects of law, discussed in this chapter, that do not apply in other countries.
[4] Some practical museum and gallery examples are dealt with later in this chapter.
[5] Section 6 of the Designs Act 2003 (Cth) defines a product as follows –
(1) For the purposes of this Act, a thing that is manufactured or hand made is a product (but see subsections (2), (3) and (4)).
(2) A component part of a complex product may be a product for the purposes of this Act, if it is made separately from the product.
(3) A thing that has one or more indefinite dimensions is only a product for the purposes of this Act if any one or more of the following applies to the thing:
(a) a cross section taken across any indefinite dimension is fixed or varies according to a regular pattern;
(b) all the dimensions remain in proportion;
(c) the cross sectional shape remains the same throughout, whether or not the dimensions of that shape vary according to a ratio or series of ratios;
(d) it has a pattern or ornamentation that repeats itself.
(4) A kit which, when assembled, is a particular product is taken to be that product.
[6] Section 7 of the Designs Act 2003 (Cth) defines visual feature as follows:
(1) In this Act: ‘visual feature’, in relation to a product, includes the shape, configuration, pattern and ornamentation of the product.
(2) A visual feature may, but need not, serve a functional purpose.
(3) The following are not visual features of a product:
(a) the feel of the product;
(b) the materials used in the product;
(c) in the case of a product that has one or more indefinite dimensions:
(i) the indefinite dimension; and
(ii) if the product also has a pattern that repeats itself – more than one repeat of the pattern.
[7] Designs Act 2003 (Cth) at s 6.
[8] Note that protection under the Copyright Act 1968 (Cth), which arises automatically once an original idea is put in a material form, does not require registration. In contrast, protection under the Designs Act 2003 (Cth) and the Patents Act 1990 (Cth) is obtained through registration.
[9] Designs Act 2003 (Cth) at s 10. For example, they may be used as security for loans and may be seized and disposed of by creditors or liquidators. They are assets.
[10] Designs Act 2003 (Cth) at ss 46, 47.
[11] Designs Act 2003 (Cth) at s 15(1).
[12] Designs Act 2003 (Cth) at s 15(2). More formally, a design is considered new provided it is not identical to a design that forms part of the prior art base as it existed before the design’s priority date.
[13] Designs Act 2003 (Cth) at s 19(1).
[14] www.ipaustralia.gov.au/.
[15] http://www.ipaustralia.gov.au/designs/.
[16] http://www.ipaustralia.gov.au/designs/ex_jug.shtml
[17] Unlike the Copyright Act 1968 (Cth) dealt with in Chapter 26, which contains provisions allowing staff of collecting institutions to reproduce and communicate copyright material for certain purposes.
[18] Of course curators should ensure that the collection item was acquired through the appropriate legal channels. This may include research into the provenance of the object.
[19] Designs Act 2003 (Cth) at s 71.
[20] During the life span of a design registration, its owner can prevent others from making or dealing with products having an identical or substantially similar overall impression to the registered design. Designs Act 2003 (Cth) at s 71(1).
[21] The law of passing off prevents one person from misrepresenting his or her goods or services as being the goods and services of another, or having some association or connection with the goods or service of another when this is not the case.
[22] Copyright law protects the material form in which ideas or information are expressed, being original ‘works’ and ‘subject matter other than works’, and copyright protection is automatic once the criteria set out in the Copyright Act 1968 (Cth) are met. ‘Work’ is defined in s 10(1) as meaning ‘a literary, dramatic, musical or artistic work’. ‘Subject matter other than works’ is not defined under the Act, but is taken to mean sound recordings, films, published editions, and sound and television broadcasts.
[23] Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49.
[24] For example, copyright in an ‘artistic work’ lasts for 70 years from the end of the calendar year in which the author died.
[25] Ian McDonald, The Overlap between Design and Copyright Law, http://www.lapres.net/deslaw.html.
[26] Copyright Act 1968 (Cth) at s 21(3).
Due to the relatively lengthy time span of the protection relative to that
[27] afforded to a regular ‘design’; Designs Law Review Committee, Report on the Law Relating to Designs, Government Printer, Canberra, 1973, paras 251–62.
[28] Another key area, although perhaps not so relevant for collecting organisations, in which the overlap commonly occurs is where drawings for the basis of a mass-produced industrial product. This is because a three-dimensional representation of a two-dimensional work amounts to reproduction of that work under the Copyright Act 1968 (Cth) s 21(3).
[29] One of the first models belongs to the Museum of Modern Art in New York.
[30] Rather than a complete breakdown of all of the legal issues, which falls outside the scope of this chapter.
[31] The copyright/design overlap provisions, specifically ss 74–7 of the Copyright Act 1968 (Cth), define the copyright protection available to articles which could potentially be registered as designs under the Designs Act 2003 (Cth).
[32] Copyright protection is lost from the date on which the application is filed.
[33] That is, where such products that apply the design are sold, let for hire or offered for sale or hire.
[34] Acording to s 77 of the Copyright Act 1968 (Cth). This section does not operate where the artistic work which corresponds to the designs is a ‘work of artistic craftsmanship’, a building or a model of a building (s 77(1)(a)) or where the corresponding design is among the designs excluded from registration under Designs Regulations 2004 (Cth), Reg 4.06.
[35] Or to one or more articles manufactured in lengths or pieces. Copyright Regulations 1969 (Cth) 1969 Reg 17.
[36] Safe Sport Australia Pty Ltd v Puma Australia Pty Ltd (1985) 4 IPR 20.
[37] Unless it has been registered as a design.
[38] The category of being a work of artistic craftsmanship.
[39] A sculpture to also be considered as a work of artistic craftsmanship.
[40] The more substantial the requirement to satisfy a functional consideration, the less the scope is for determining the work to be one of artistic craftsmanship.
[41] Burge v Swarbrick [2007] HCA 17; (2007) 234 ALR 204; 81 ALJR 950 (26 April 2007).
[42] It is worth noting at this point, that a guide has been developed by the World Intellectual Property Organization (WIPO) for museums, and the broader cultural heritage community, to help them use the intellectual property system to improve the management of their collections in the digital environment. The WIPO Guide on Managing Intellectual Property for Museums recognises the important role that intellectual property plays in providing access to collections, and in preserving and managing the valuable works they contain, and is recommended as invaluable reading to staff who find themselves working with intellectual property issues of their collections. A copy of this document can be found at the following link: http://www.wipo.int/copyright/en/museums_ip/guide.html.
[43] In Australia, moral rights were introduced in December 2000 through the Copyright Amendment (Moral Rights) Act 2000 (Cth). This legislation provides creators with three rights, being: the right of attribution of authorship; the right not to have authorship of their work falsely attributed; and the right of integrity of authorship.
[44] To avoid any confusion or misrepresentation to the public as to the origins of the chair.
[45] Where features of shape or ornamentation are reproduced in the product, both design rights (if a design was registered) and copyright could require consideration.

Introduction

Given that cultural property is one of the principal mechanisms by which we create, maintain and describe identity, it is unsurprising that parties to international and intra-national armed conflicts recognise the strategic value of cultural property. To threaten the cultural property of the opponent is to threaten its identity and it is this poignant link between cultural property and cultural identity that so often imperils the former in the service of the latter.

It is because of its powerful link with identity that cultural property often has a strategic function in armed conflicts. Sometimes, it may be used as a bargaining tool; at other times as a weapon, a target, or as the rightful prize of the champion. Indeed, for many centuries, cultural property was seen as one of the spoils that went to the victor and many of the great museums are filled with such prizes, self-awarded to the victorious. Not only were they a way of financing the cost of war: they also provided an eloquent symbol of power and success to the victor’s public and, at the same time, a proof of military and cultural inferiority to the public of the vanquished.

It was not until the nineteenth century that debate started as to the appropriateness of such conduct.[1] Perhaps the most important catalyst for this debate was the promulgation of the Lieber Code by Abraham Lincoln in 1863, which, in part, stated:

Classical works of art, libraries, scientific collections, or precious instruments such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.

However, the Code went on to ‘recognise’ that the conquering nation had the right to remove works of art, libraries and scientific collections belonging to the hostile nation.[2] This initiative was followed over the years by various treaties and declarations. The most important of these were, the Declaration of Brussels of 27 August 1874,[3] the 1907 Hague Convention Respecting the Laws and Customs of War on Land[4] and the Roerich Pact of 1935.[5] The promulgation of such rules did little to protect cultural material from destruction and looting in the wars that followed them but to the extent that they were responsible for saving any, we can be grateful.

Coming out of the horrors of World War II and the destruction of cultural property inflicted by both sides, it was timely for the nations to recognise the losses inflicted on international cultural heritage. Even those countries that had not been directly involved in the damage and destruction of the conflict recognised that their losses, although indirect, were no less real. Acknowledging that the protections offered by the Hague Conventions of 1899[6] and 1907[7] had proven so inadequate, in 1954, UNESCO produced the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.[8] The Hague Convention is supplemented by two Protocols: the First Protocol, which entered into force at the same time as the Convention itself, and the Second Protocol, which entered into force in 1999.[9]

The Preamble to this convention stated: ‘Damage to the cultural property belonging to and people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.’ As observed by Fitz Gibbon, ‘Today there is nothing unusual about making this statement, but at the time its recognition of all world art as constituting an important part of human heritage was an extraordinary leap from the prejudices of the past.’[10]

Except for the bombing of Darwin in World War II, Australia is blessed in that it has not been attacked. Although the European settlement[11] of the country has endangered and destroyed much Indigenous cultural property, the absence of subsequent invasion by foreign forces has meant that for two hundred years our cultural property has not been threatened by war. Perhaps because of this, Australia has few laws specifically related to the protection of cultural material during times of armed conflict.[12] It did not ratify the 1954 Hague Convention for another thirty years and has so far declined to sign both the First Protocol (1954)[13] and the Second Protocol (1999)[14] to that Convention. This chapter will briefly examine those aspects of the Convention as they affect Australian collections and will briefly summarise the content of the two Protocols.

The Hague Convention 1954

Although Australia was one of the signatory parties to the 1954 Hague Convention, it did not ratify it until 19 September 1984 and it did not come into force in Australia until 19 December 1988.[15] At time of writing, there are 123 States party to the 1954 Hague Convention, 100 of which are also party to the 1954 First Protocol and 55 States are party to the Second Protocol.[16]

Structure

The Convention may be divided into:

• 1. The Preamble, which sets the tone and purpose of the treaty;
  2. The forty articles in its General Provisions, which define the terms used and outline the scope of the convention; and
  3. The Regulations, which set out the processes for appointment of the delegates and the Commissioner General, their function, and processes for the registration of cultural property.

Purpose

The purpose of the Convention is set out in the Preamble:

The High Contracting Parties,

Recognising that cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is increasing danger of destruction;

Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world;

Considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection;

Guided by the principles concerning the protection of cultural property during armed conflict, as established in the Conventions of The Hague of 1899 and of 1907 and in the Washington Pact of 15 April 1935;

Being of the opinion that such protection cannot be effective unless both national and international measures have been taken to organise it in time of peace;

Being determined to take all possible steps to protect cultural property;

Have agreed upon the following provisions …

Application

Many of the Convention’s provisions only come into effect in time of armed conflict. That conflict may be international or non-international.[17]

This includes not only declared wars but also ‘any armed conflict between two parties, even if the state of war is not recognised by one or more of them.’[18] It also applies to all cases of partial or total occupation of a party even if the occupation meets with no armed resistance.[19]

Definitions

1. CULTURAL PROPERTY

‘Cultural Property’, the focus of the treaty, is very broadly defined. Irrespective of origin or ownership, it covers:

• (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

• (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);

• (c) centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as `centers containing monuments’).[20]

Without doubt, collecting organisations and their holdings are not only covered by the Convention, they are a primary focus of it.

1. PROTECTION, SAFEGUARDING AND RESPECT 

 Article 2, somewhat enigmatically, states: ‘For the purpose of the present Convention, the protection of cultural property shall comprise the safeguarding of and respect for such property.’ So what does ‘safeguarding’ and ‘respect’ mean in this context?

‘Safeguarding’ seems to be used to apply to the preventative actions necessary to protect the cultural material in one’s own territory. It refers to the precautions that can and should be undertaken in peacetime to prevent the damage or destruction of the nation’s cultural property that is foreseeable in times of armed conflict.[21]

‘Respect’ requires the parties to:

‘… prohibit, prevent and if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory (of another party) …’[22] [and] refrain from any act directed by way of reprisals against cultural property.[23]

These create obligations on each party during peacetime as well as during times of armed conflict.

Implementation in peacetime

Article 3 states:

The High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.[24]

Jan Hladik has usefully divided national implementation measures into five categories: administrative, military, penal, technical and promotional.[25] He lists a number of measures by which a country’s compliance with Hague Convention obligations may be tested. Most of these are a matter for government rather than individual institutions – except the ‘technical’ measures:

Technical measures consist mainly in the preparation, in time of peace, for the safeguarding of cultural property against the foreseeable effects of an armed conflict (cf Article 3 of the Hague Convention). This provision, which is of a very general character, is complemented by Article 5 of the Second Protocol which provides an example of technical measures such as the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property.[26]

Although the reference to the Second Protocol may seem irrelevant to Australian institutions, these days, each State and Federal collecting institution is expected to include in its risk management plan issues such as the preparation of collection inventories and disaster preparedness. Other, smaller collections often fail to consider such issues. It is difficult to know whether complacency or modesty is a greater enemy of implementation of the Hague Convention principles. The former is the attitude that ‘it will never happen here’ and the latter is, ‘what we have isn’t important enough to be endangered’. Yet, often protective measures in small organisations can be simple, reasonably inexpensive and very effective.

The Convention gives little guidance as to how safeguarding of cultural property must be done or what preparation is appropriate but the 1995 UNESCO report on the implementation of the Hague Convention provides recommendations as to such steps and examples of safeguarding initiatives taken by some of the States. These include:

• • the categorisation and subsequent preparation of inventories of cultural property;
  • relevant documentation (such as microfilms, maps and photographs);
  • the construction of shelters for cultural material; and
  • the evacuation of military installations from city centres to suburban areas.[27]

1. PREPARATION OF COLLECTION INVENTORIES

One of the most basic measures is the creation of a comprehensive collection inventory. Most collecting organisations do this with varying degrees of rigour. To check that your system reflects best practice you should consider whether your organisation complies with the recommendations of Object ID.[28] This was an enormous sectorwide project to develop an international standard for describing cultural objects. It is used to combat theft and illegal appropriation of cultural material – whether in time of peace or armed conflict.

Object ID provides a checklist for the documentation of material:

OBJECT ID CHECKLIST

TAKE PHOTOGRAPHS

Photographs are of vital importance in identifying and recovering stolen objects. In addition to overall views, take close-ups of inscriptions, markings, and any damage or repairs. If possible, include a scale or object of known size in the image.

ANSWER THESE QUESTIONS:

Type of Object

What kind of object is it (e.g., painting, sculpture, clock, mask)?

Materials & Techniques

What materials is the object made of (e.g., brass, wood, oil on canvas)?
How was it made (e.g., carved, cast, etched)?

Measurements

What is the size and/or weight of the object? Specify which unit of measurement is being used (e.g., cm., in.) and to which dimension the measurement refers (e.g., height, width, depth).

Inscriptions & Markings

Are there any identifying markings, numbers, or inscriptions on the object (e.g., a signature, dedication, title, maker’s marks, purity marks, property marks)?

Distinguishing Features

Does the object have any physical characteristics that could help to identify it (e.g., damage, repairs, or manufacturing defects)?

Title

Does the object have a title by which it is known and might be identified (e.g., The Scream)?

Subject

What is pictured or represented (e.g., landscape, battle, woman holding child)?

Date or Period

When was the object made (e.g., 1893, early 17th century, Late Bronze Age)?

Maker

Do you know who made the object? This may be the name of a known individual (e.g., Thomas Tompion), a company (e.g., Tiffany), or a cultural group (e.g., Hopi).

WRITE A SHORT DESCRIPTION

This can also include any additional information which helps to identify the object (e.g., color and shape of the object, where it was made).

KEEP IT SECURE

Having documented the object, keep this information in a secure place.

[Object ID is a registered trademark of the J Paul Getty Trust. Permission must be obtained from the International Council of Museums (ICOM) prior to any reproduction of Object ID.]

If you are responsible for implementing for documenting cultural heritage you should also refer to Documenting the Cultural Heritage[29] as this will provide you with a practical guide to the internationally agreed standards.

2. DISASTER PREPAREDNESS

Disaster preparedness is a standard part of good collection management. Most collecting organisations have some disaster preparedness protocol in place as part of their risk management strategy. Some, however, are quite inadequate. This is not the place to discuss such policies but there is a lot of published material available for those who wish to develop such essential procedures.[30]

3. DISTINCTIVE MARKING OF CULTURAL PROPERTY

One of the common difficulties in wartime is recognising cultural property. From the air, a library or museum may look much the same as a government office building or a munitions warehouse. To make identification easier, the Hague Convention 1954 provides an emblem. The use of such emblems is not new[31] but what was new was that the Convention specified its design. It is in the form of a shield ‘pointed below, persaltire blue and white (a shield consisting of a royal-blue[32] square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle.’[33] Well, at least that’s clear. The emblem can be used alone or may be repeated three times in a triangular formation.

The world is very familiar with the meaning of a red cross but the blue and white shield is far less well known and it is clear that there has been insufficient community education as to its recognition, meaning and importance. Even within collecting organisations, many are unaware of the shield, and even more have chosen not to implement the symbol in the belief either, that attack is unlikely or, that designating the cultural property in this way will make it a more likely target.

The Convention distinguishes between using the emblem in single form and its use in a triangulated formation. In its triangulated formation, the emblem can only be used to identify immovable cultural property under special protection, temporary refuges for cultural material (that comply with the Regulations) and vehicles transporting such property.[34]

General use of the emblem in its single form is optional but it can only be used as a means of identification of:

• 1. cultural material not under special protection;
  2. the persons responsible for the duties of control in accordance with the regulations for the execution of the Convention;
  3. the personnel engaged in the protection of cultural property;
  4. the identity cards mentioned in the regulations for the execution of the Convention.[35]

During an armed conflict, no other use of the emblem (or any sign resembling the emblem) is permitted.[36]

In order to apply the symbol to a building or other immovable cultural property, permission must be sought from the Federal Government and that authorisation must be signed, dated and displayed (although the form of that is not mandated).

When and how the emblem is displayed is a matter of discretion. For organisations that do wish to avail themselves of the symbol, it can be displayed on flags or armlets;[37] it may be painted on an object or represented in any other appropriate form. It can be placed on vehicles or on buildings so as to be clearly visible both from the air and from the ground. Further, it can be placed around the perimeter and at the entrance of buildings, monuments or other immovable cultural property under special protection.[38]

The use of the emblem raises a number of important risk management questions for collecting organisations:

• Should the organisation seek to have the cultural property in its care registered as worthy of ‘special protection’ so that it can use the emblem in its triple formation and have the property formally recognised by all of the parties to the Convention as worthy of protection?
• If so, when should it start the application process?
• Even if it is not going to seek ‘special protection’ registration, should it prepare to use the single emblem?
• If so, what arrangements should be made? For example, does the organisation have armlets bearing the emblem so that they are readily available for workers in the event of armed conflict? Does the ID card presently issued to employees of the organisation comply with the requirements of the Convention? Would it not make sense if it did?[39]
• Do the organisation’s vehicles bear the cultural property emblem? If it is decided not to put it on the vehicles now, has the organisation a store of transfers or some other way of quickly attaching the emblem to the roofs and sides of the vehicles?

The international response to the use of the protective emblem has been diverse. Some countries such as Belgium, Bosnia and Herzegovina,[40] Egypt, Austria and Germany have undertaken a program of marking important cultural property with the Shield. Other countries do not believe that it is prudent to mark such property because it may simply identify important targets for aggressors[41] or unnecessarily alarm the civilian population.[42] Still others have undertaken preparation in peacetime and when conflict threatens, the plans will be implemented.[43]

It must be said that the use of the emblem only works to mitigate against attacks made in error. As the war in the former Yugoslavia showed, it can never protect against deliberate and tactical attack.[44]

4. SPECIAL PROTECTION STATUS

One of the little used and thus largely ineffective initiatives of the Convention was to establish the Register of Cultural Property under Special Protection. This is maintained by the Director-General of UNESCO who, in turn, provides copies of the Register to all of the parties to the Convention.

Special protection may be given to three categories of cultural property:

1. refuges intended to shelter movable cultural property in the event of armed conflict (for example the General Refuge Oberrieder Stollen in the Federal Republic of Germany);
2. centres containing monuments (for example, Vatican City); and
3. other immovable cultural property of very great importance.[45]

The granting of special protection is not automatic; it is essentially subject to the following conditions:

• • a specific written request for granting such protection must be addressed to the Director-General of UNESCO by the State Party responsible for the territory;
  • the property in question must be at an adequate distance from any military objective;[46]
  • it must not be used for military purposes;
  • all other States Parties must agree to it.

The government submits to the Director-General any applications for entry onto the Register. It may do so in respect of cultural material in its own territory and, where it is an occupying power, for cultural property in the occupied territory. The application describes the cultural property, its location, and certifies that it complies with the provisions of Article 8 of the Convention. The Regulations require the Director-General to send a copy of that application to each of the parties to the Convention. Each party then has four months to lodge an objection.[47]

One might observe that this is a task best undertaken in the comparative leisure of peacetime but it is clear that most countries that are party to the Convention have neither prepared lists of property for special protection, nor prepared refuges for the shelter of cultural material in the event of armed conflict.[48]

At time of writing, cultural property of three parties to the Convention (Germany, the Holy See and the Netherlands) is entered in the Register.[49] Two States (Austria and the Netherlands) have withdrawn registrations and the last entry was in 1978.[50]

5. TRAINING

The Convention specifies that that each party must instruct and train its military forces in how to deal appropriately with cultural material.

Although the ‘protection’, ‘safeguarding’ and ‘respect’ of cultural property is required by the Convention, such admonitions are meaningless unless the military, the people who have to implement the fine sentiments on the battlefield, are provided with training. The focus of such training is to help them recognise such property and understand the Convention and the obligations that it imposes. This is equally applicable to defenders and aggressors.[51] This is recognised in Article 7:

Article 7. Military measures

1. The High Contracting Parties undertake to introduce in time of peace into their military regulations or instructions such provisions as may ensure observance of the present Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples.

2. The High Contracting Parties undertake to plan or establish in peace-time, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it.

Although it is a truism that ‘ignorance of the Law is no defence’, there is no doubt that if one really wants effective compliance with particular laws, both education and training are essential.[52] At time of writing, more than 50 years after the Convention came into force, UNESCO is working on a submission to the United Nations and NATO aimed at ensuring compliance with the Convention and its two Protocols by armed forces engaged in peace-keeping operations under the respective mandates of these organisations.[53]

Some individual countries have not waited and have introduced cultural protection issues into their own military programs.[54]

Respect for cultural property during time of armed conflict

Article 4 is perhaps the heart of the Convention. It is brief:

Article 4. Respect for cultural property

1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property.

2. The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.

3. The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.

4. They shall refrain from any act directed by way of reprisals against cultural property.

5. No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3.

There are many situations in recent wars in which commanders have used monuments, museums and other cultural property for strategic purposes[55] or have carried out their military plans with wilful disregard for the endangerment or destruction of cultural property.[56] Whether or not such actions constitute a breach of Article 4 of the Convention cannot be assumed. It requires legal and factual precision.

The key lies in paragraph 2 of the Article: the ‘military necessity’ exception. For those charged with the protection of cultural property, this exception is the great the weakness of the Convention. One military commander may deploy an item of cultural property for strategic purposes if military necessity requires – and the opponent commander can blow it up if military necessity requires. That said, the military caveat was an important part of the diplomatic negotiations that permitted so many countries to sign up to the Convention. Without it, many would have refused.[57]

The obligations of occupying forces

Given the much publicised destruction, damage and looting of Iraqi cultural institutions and cultural material since the intervention in that country by the ‘forces of the willing’,[58] it is important to understand that, as both Australia and Iraq are signatories to The 1954 Hague Convention,[59] Australia had (and may still have) significant obligations towards Iraqi cultural material.[60] Article 5 requires that any party:

… in occupation of the whole or part of the territory of another (party) shall as far as possible support the competent national authorities of the occupied country in safeguarding and preserving its cultural property … (Furthermore, should) it prove necessary to take measures to preserve cultural material situated in the occupied territory and damaged by military operations, and should the competent national authorities be unable to undertake such measures, the Occupying Power shall, as far as possible, and in close cooperation with such authorities, take the most necessary measures of preservation.[61]

Australian cultural organisations, particularly Federal ones, should be aware that, if so requested, the Federal Government of the day has a treaty obligation to provide preservation and conservation assistance to Iraq.[62] If this arises, these skills will most likely be sourced from the Federal collecting organisations, although it is possible that external consultants would also be retained.

Transport of cultural property during armed conflict

As with refuges, there is a mechanism for conferring ‘special protection’ status on the transport of cultural property. Again, the application is made to the Commissioner-General for Cultural Property and it must mention the reasons for which protection is sought; the approximate number of items; their importance; present location; the anticipated new location; the means of transport; and any other relevant information.[63] Where the status is granted, the Commissioner-General appoints one or more inspectors who must satisfy themselves that only the property stated in the request is to be transferred and that the transport is to be by the approved method and bears the blue shield emblem. The inspectors then travel with the property to its new destination.

REPORTING TO UNESCO

The 1954 Hague Convention for the Protection of Cultural Property in the event of Armed Conflict stipulates in Article 26(2):

Furthermore, at least once every four years, [the High Contracting Parties] shall forward to the Director-General a report giving whatever information they think suitable concerning any measures being taken, prepared or contemplated by their respective administrations in fulfillment of the present Convention and of the Regulations for its execution.

The latest report from Australia was submitted to UNESCO in June 2010. The Department of the Environment, Water, Heritage and the Arts (DEWHA) is the lead agency in generating this report, and seeks input from all other relevant Australian Government departments including the Department of Defence, the Department of Foreign Affairs and Trade, the Attorney-General’s Department and the Department of the Prime Minister and Cabinet.

The First protocol to the hague convention

The primary focus of the First Protocol is illicit trade in objects looted during armed conflict. Contracting parties in occupation of another country undertake to prevent the export of cultural property, and also to take into custody any cultural property imported into their territory either directly or indirectly from any occupied country.[64]

The First Protocol was concluded on 14 May 1954, the same date as the principal Convention. One of the characteristics of the war that had just ended (like so many of them for centuries past)[65] had been the sheer volume of cultural property that had been taken from its owners. Some of this had been straightforward looting but much had been done under the pretence of pseudo-legality. Even while the war was still ongoing, the 18 Allied powers entered the Inter-Allied Declaration Against Acts of Dispossession Committed in Territories under Enemy Occupation or Control.[66] This reserved their rights

to declare invalid any transfers of, or dealings with, property rights and interests of any description whatsoever, which are, or have come under the occupation or control, direct or indirect, of the governments with which they are at war… This warning applies whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently in legal form, even when they purport to be voluntarily effected.

When the war ended, the Final Act of the 1945 Paris Conference on Reparations provided some restitution mechanisms but many considered that they were flawed, or at least, did not go far enough. In particular, many considered that there needed to be positive mechanisms to prohibit the illegal trafficking of cultural material. These criticisms were taken into account by those drafting the Hague Convention and in the initial draft they included a provision that stated:

If during an occupation, a cultural property has changed hands and been exported, the restitution of that property may be required of its last holder within a period of ten years from the date on which it becomes possible to bring an action for restitution before a competent magistrate. If, however, the last holder can show proof that the property changed hands as a result of a legal transaction carried out without extortion of consent, the action for restitution shall be dismissed.[67]

This draft provision was much disputed. Had it remained, several countries would have refused to sign the Convention, so it was agreed that the mechanisms relating to the international trafficking and repatriation of looted property would be split off into a separate document, the First Protocol.[68]

The First Protocol is brief.[69] It is divided into three parts:

(i) Each party undertakes:

• to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property;[70]
  • to take into its custody cultural property imported into its territory either directly or indirectly from any occupied territory;[71]
  • to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the principle laid down in the first paragraph. Such property shall never be retained as war reparations.[72]
  • If a party has an obligation to prevent the exportation of cultural property from the territory that it occupied, it must pay an indemnity to the holders in good faith of any cultural property that has to be returned in accordance with the preceding paragraph.[73]
  • (ii) Cultural property coming from the territory of a party and deposited by it in the territory of another party for the purpose of protecting it from the dangers of an armed conflict, shall be returned by the latter, at the end of hostilities, to the competent authorities of the territory from which it came.[74]
  (iii) The third section is a machinery section, but, amongst other things, makes it clear that it stands independent of the principal Convention, that States can join up to the Protocol notwithstanding that they are not parties to the principal Convention, and that parties may ratify either the first part only, the second part only, or the whole of the Protocol.[75]

Australia (together with others such as the United States and the United Kingdom) never did become a party to the First Protocol. Although the principles articulated by the First Protocol are reasonable and indeed, by today’s ethical standards, unarguable, subsequent conflicts and looting showed that it was largely ineffective. Indeed, it should be noted that some important functions of the First Protocol have already been achieved in Australia through the Protection of Movable Cultural Heritage Act 1986 (Cth).[76]

THE second protocol

In the early 1990s, it was decided that the First Protocol should be reviewed and its effectiveness strengthened[77] and in 1995 UNESCO sponsored a meeting to improve the 1954 Convention (and the First Protocol). The Second Protocol has four key purposes:

• 1. It creates a new protection category of ‘enhanced protection’;
  2. It requires parties to criminalise serious violations of the Protocol (including obligations to prosecute and punish); and
  3. It seeks to strengthen various mechanisms of the Convention itself. For example, many States argued that the military necessity exception to the protection of cultural material should be removed.[78] Others considered that crimes against important cultural property should be war crimes.[79] Although the military necessity exception remained in the final document, the situations in which it could be invoked were more clearly defined; and
  4. It creates a new Intergovernmental Committee to oversee implementation.

While discussion of the Second Protocol is a fascinating window into international law and diplomacy, that is a joy that must be deferred for another place. Australia is not a party to it.

Conclusion

The fact that Australia is a party to neither the First Protocol nor the Second Protocol is relevant to any collecting institution that prudently seeks to use peacetime as an opportunity to protect the cultural property under its stewardship in the event of war. The ‘enhanced protection’ mechanisms are not available to them. They must continue to rely on the ‘special protection’ mechanisms provided under the 1954 Hague Convention.

The question of whether Australia should ratify the two protocols to the 1954 Hague Convention for the Protection of Cultural Property in the event of Armed Conflict was addressed in the report on the review of the Protection of Movable Cultural Heritage Act 1986 (Cth). The Minister for Environment Protection, Heritage and the Arts has endorsed the recommendation that in the medium term the Australian Government would undertake targeted consultation with stakeholders on the potential impacts of becoming a party to the 1954 and 1999 Protocols.

In contrast, whether an individual collection should voluntarily consider the protection of the collection in time of armed conflict is a governance issue for its board and administration.

Further reading

There are many books and articles on the protection of collections. Most include the texts of the relevant source documents. It is a fascinating area. It is perhaps understandable that this topic is most vehemently discussed in countries that know the devastating short-term and long-term effects that the pillage, looting, damage and destruction of cultural material can have on the society in mourning. As a starting point, the following are recommended.

Erika Techera, ‘Protection of cultural heritage in times of armed conflict: The international legal framework revisited’, MqJICEL (2007) Vol 4, 1–20.

Jiri Toman, The Protection of Cultural Property in the Event of Armed Conflict, Dartmouth Publishing and UNESCO, 1996 (particularly as to the Hague Convention and the First Protocol).

W Sandholtz, ‘The Iraqi National Museum and international law: A duty to protect’, Columbia Journal of Transnational Law, 2005, p 186,

www.columbia.edu/cu/jtl/Vol_44_1_files/Sandholtz.pdf. Read this article as a taster – was the conduct of the US forces in breach of its international obligations? Was the head of Australian Defence Forces right when he ‘rejected suggestions that Australia, as an invading and occupying force with international legal responsibilities for protecting Iraq’s heritage, should share the blame for the loss of artefacts [sic]’ (at p 191)

Kevin Chamberlain, War and Cultural Heritage, Institute of Art and Law, 2004. Read particularly as to the Second Protocol to the Hague Convention.

Roger O’Keefe, The Protection of Cultural Property in Armed Conflict: A comprehensive introduction, Cambridge University Press, 2006. A more academic analysis of the laws and particularly interesting in the way that the author also looks at the relevant non-Hague conventions.

Ana Filipa Vrdoljak, International Law, Museums and the Return of Cultural Objects, Cambridge University Press, 2006.

James Nafziger, ‘Protection of cultural heritage in time of war and its aftermath’, International Foundation For Art Research: <http://www.ogiek.org/indepth/protect-cult-herit.htm>.

Report on the implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 And 1999 Protocols: Report on the activities from 1995 to 2004, UNESCO, 1995, (CLT-2005/WS/6): <http://unesdoc.unesco.org/images/0014/001407/140792e.pdf>. This gives a useful history of the Convention and its application in conflicts such as Afghanistan, Iraq and the former Yugoslavia, together with a useful bibliography.

You should also be familiar with the work of Blue Shield Australia – the national committee affiliated with the International Committee of the Blue Shield. See their website for further information: <http://www.blueshieldaustralia.org.au>.

Endnotes

[1] See Jiri Toman, The Protection of Cultural Property in the Event of Armed Conflict, Dartmouth Publishing and UNESCO, 1996, p 5. For a useful summary of history of cultural material in armed conflict also see Anthi Helleni Poulos, ‘The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict: An Historic Analysis,’ (2000) 28 Int’l J Legal Info, p 1.

[2] Articles 34–36, General Orders No 100: Instructions for the government of armies of the United States in the Field (Lieber Code) as cited in ‘Chronology of Cultural Property Legislation’, K Fitz Gibbon, Who Owns The Past? Cultural Policy, Cultural Property and the Law, Rutgers University Press, 2005, pp 3-9.

[3] ‘… institutions dedicated to religion, charity and education, the arts and sciences even when State property, shall be treated as private property. All seizure or destruction of, or wilful damage to, institutions of this character, historic monuments, works of art and science should be made the subject of legal proceedings by the competent authorities’: Article 8, Project of an International Declaration Concerning the Laws and Customs of War.

[4] Hague (IV), which forbids damage to ‘institutions dedicated to religion, charity and education, the arts and sciences … historic monuments, works of art …’.

[5] The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, which sought to establish a status of neutrality for monuments, museums, scientific, artistic, educational, and cultural institutions, that were designated by a flag by which they could be identified, just as hospitals and medical personnel were designated by a red cross.

[6] Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat 1803,T S No 403, 26 Martens Nouveau Recueil (ser 3), reprinted in 1 Am  Journal Int’l Law 129 (1907) (known as Hague Convention II).

[7] Convention Respecting the Laws and Customs of War on Land, Oct 18 1907, 36 Stat. 2277 (1907), T S No 539, 3 Martens Nouveau Recueil (ser 3), reprinted in 2 Am  Journal Int’l Law 90 (1908) ) (known as Hague Convention IV).

[8] The text of the Convention may be found on the UNESCO site at: <http://portal.unesco.org/la/convention.asp?KO=13637&language=E&order=alpha>.

[9] An instrument  ‘enters into force’ once a specified number of states have ratified the instrument. It then binds the parties who have ratified it. The phrase ‘enters into force’ does not imply that the Protocols have force in Australian law as Australia has not ratified them.

[10] ‘Chronology of Cultural Property Legislation’, K Fitz Gibbon, Who Owns the Past? Cultural Policy, Cultural Property and the Law, Rutgers University Press, (2005), at p 5.

[11] Many Indigenous people prefer the word ‘invasion’ to that of ‘settlement’.

[12] Note that this does not mean that Australia does not have laws relating the protection of cultural property. Every State/Territory has legislation that criminalises the destruction and pillaging of cultural property – whether or not a state of armed conflict exists.

[13] UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention, First Protocol, 14 May 1954 (ratified 19/09/1984); See text at <http://portal.unesco.org/en/ev.php-URL_ID=15391&URL_DO=DO_TOPIC&URL_SECTION=201.html>.

[14] See text of the Second Protocol at <http://portal.unesco.org/en/ev.php-URL_ID=15207&URL_DO=DO_TOPIC&URL_SECTION=201.html>.

[15] For a lucid explanation as to the process by which a country becomes a party to the Convention (through ratification or accession) see P J Boylan’s paper, ‘Implementing the 1954 Hague Convention and its Protocols: legal and practical implications’, (2006): <http://culturalpolicy.uchicago.edu/protectingculturalheritage/papers/Boylan.paper.pdf>.

[16] In 2007 New Zealand issued a Consultation Paper as to whether it should ratify the Convention and its two Protocols. The United Kingdom is in the process of introducing legislation which will enable it to ratify the Convention and both the First and Second Protocols. Japan is considering ratification. The United States has expressed an intention to become a party to the 1954 Hague Convention (although arguably it is already bound by its principles: Geoffrey S Corn, ‘“Snipers in the minaret – what is the rule?” The law of war and the protection of cultural property: A complex equation’, 2005-Jul Army Law, 28).

[17] Were Australia ever to suffer internal armed conflict, the Convention would apply: Article 19. See also: ‘Protection of cultural property under international humanitarian law: Some emerging trends’, P Ishwara Bhat, <www.worldlii.org/int/journals/ISILYBIHRL/2001/4.rtf>.

[18] Article 18, para 1.

[19] Article 18, para 2.

[20] Article 1.

[21] Article 3.

[22] Para 3, Article 4.

[23] Para 4, Article 4.

[24] Article 3. For a detailed commentary see Jirí Toman, The Protection of Cultural Property in the Event of Armed Conflict, Dartmouth Publishing Company/UNESCO, 1996, pp 59–66.

[25] ‘Cultural property in the event of armed conflict: Some observations on the implementation at the national level’, Jan Hladik, Museum International No 4, 228, Wiley-Blackwell, UNESCO, 2005, pp 71-76. See:  <http://portal.unesco.org/culture/en/files/29573/11363878685228_Jan_Hladik_eng.pdf/228_Jan_Hladik_eng.pdf>.

[26] Ibid.

[27] ‘Risk preparedness under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Second Protocol’, J. Hladik. <http://icom.museum/disaster_preparedness_book/international/hladik.pdf>.

[28] <http://icom.museum/object-id/index.html>.

[29] Edited by R Thornes and J Bold, Getty Information Institute, (1998).

[30] As a starting point refer to the Collections Australia Network: <http://www.collectionsaustralia.net/sector_info_item/2>. ‘Be Prepared’ (1990) published by the Heritage Collections Council, can be downloaded from that site. Also refer to the excellent site published by DISACT, A Disaster Recovery Resource for Public Collections in the ACT). This provides a feast of interesting and helpful links: <http://www.anbg.gov.au/disact/web-links.html>. See also Disaster Management of Libraries and Archives, G Mathews and J Feather, Ashgate, 2003.

[31] For example, symbols were provided by the Hague Convention 1907 and the Roerich Pact 1935.

[32] The Association of National Committees of the Blue Shield has adopted PMS300 as the standard for representing this ‘royal blue’ colour.

[33] Article 15.

[34] Chapter V of the Convention, Articles 18 & 19.

[35] Para 2, Article 17.

[36] Para 3, Article 17. Note the limitation to times of armed conflict. It would make great sense if the same protection was given to the blue shield as is given to the red cross. The Red Cross organisation spends much time and money trying to ensure that its emblem is used appropriately – even in peacetime – on the basis that any devaluation of the symbol will cost lives.

[37] Such armlets must be issued and stamped by the competent authorities and persons wearing the armband must carry an identification card bearing the emblem; stating the surname and first names; the date of birth; the title or rank and the function; photograph; signature and/or fingerprints, of the holder. Cards are to be made in duplicate, one copy being held by the issuing authority: Article 21 of the Regulations.

[38] Article 20 of the Regulations. Note also that Article 38 of additional Protocol 1 to the 1949 Geneva Conventions also prohibits the misuse of ‘the protective emblem of cultural property’.

[39] If it is decided that there is too much information required on the ID card for everyday use, might a complying card be produced at the time of issuance of the everyday card so that when armed conflict arises, a complying card can be issued without delay?

[40] Which marked cultural property prior to and during the 1992-1995 war.

[41] As Kossiakoff observes, this rationale should be finally dismissed for, as experience in Bosnia showed, a hostile party already knows where hidden property is or at the least can easily find out: ‘The art of war: The protection of cultural property during the Seige of Sarajevo (1992-1995)’, Megan Kossiakoff, 14 DePaul-LCA J Art and Entertainment Law, (2004), p 109; cf Patrick J Boylan, Review of the Convention for the Protection of Cultural Property for the Protection in the Event of Armed Conflict, (The Hague Convention of 1954), Paris, UNESCO, 1993, Report ref CLT-93/WS/12.

[42] For example Spain.

[43] For example Switzerland. These examples are taken from the UNESCO Report, supra fn 31, pp 14–16.

[44] Kossiakoff, Id FN 46. The cultural damage suffered in this conflict is summarised in: Lopez Henares, ‘Ninth information report on war damage to the cultural heritage in Croatia and Bosnia-Herzegovina’, Eur Parl Assembly Doc No 7464, sec 3 (1996): <http://assembly.coe.int/main.asp?Link=/documents/workingdocs/doc97/edoc7740.htm>.

[45] Article 8, paragraph 1.

[46] There is no definition as to the meaning of ‘adequate’. See criticisms of this by Patrick Boylan, ‘Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954)’, UNESCO, (1993), at 76; UNESCO Doc. CLT-93/WS/12.

[47] The objection must be received by the Director-General within four months of the day on which he sent a copy of the application for registration. For details of the objection process see, Article 14 of the Regulations.

[48] Notable exceptions would appear to be Finland and Switzerland. See ‘Report on the implementation of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Two 1954 and 1999 Protocols: (2005) UNESCO report, pp 12–14; <http://unesdoc.unesco.org/images/0014/001407/140792e.pdf>.

[49] A total of four refuges as well as the whole of the Vatican City State.

[50] See Jan Hladik, Risk-Preparedness under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Second Protocol: <http://icom.museum/disaster_preparedness_book/…/hladik.pdf>.

[51] Article 7, Military measures.

[52] Indeed it is an obligation under the convention: Article 25 which requires that the Convention be included ‘in military and (if possible) civilian training, so that its principles are made known to the whole population, especially the armed forces and personnel engaged in the protection of cultural property.’

[53] ‘Final report of the seventh meeting of the high contracting parties to the Convention for the Protection of Cultural Property in the Event of Armed Conflict’, UNESCO, 20th December 2007.

[54] Norway established a Cultural Heritage Management Section to formulate a protection plan for military establishments and buildings that were classified as cultural monuments and is incorporating this into military planning. In Spain the ‘Guidelines: The law of armed conflict’, prepared for the internal use of the military, emphasise the protected nature of cultural property, require that they must abstain from directing hostile acts towards such property or using it or the immediate vicinity for military operations, and restrict the application of the principle of military necessity. For further examples see ‘Report on the implementation of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 and 1999 Protocols: (2005) UNESCO report, pp 10–12; <http://unesdoc.unesco.org/images/0014/001407/140792e.pdf>.

[55] For example, the use by US snipers of the spiral minaret of the eighth-century al-Mutawakkil mosque in Samarra, Iraq, to obtain a firing position with a commanding view of the surrounding area. When questioned about the propriety of this, the US military spokesman said, ‘the value of safeguarding innocent Iraqis and our security force partners, when considered in total, must take precedence.’ (The Art Newspaper, No 156, March 2005, p 7.)

[56] For example the shelling in 1991 of the historic town of Dubrovnik, a World Heritage site. As to the experience of the First Iraq–Kuwait War see: ‘The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict – Is IT WORKING? A case study: The Persian Gulf War experience’, H E  Oyer, (1999) 23 Colum-VLA J L & Arts 49.

[57] ‘Military necessity’ is a complex issue, both jurisprudentially and in practice.

[58] Writing on the destruction of cultural material in this conflict is prolific. The NY Review of Books published a review of just seven books on the subject: ‘The Devastation of Iraq’s Past’, H Eakin, Vol 55, No 13, August 14, (2008). There are many books, but in particular see Art And Cultural Heritage: Law, policy, and practice, B Hoffman (ed), Cambridge University Press (2006). See ‘War or Peace: It is time for the United States to ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict’, J V Campagna, (2005) 17 Fla J Int’l Law 271. The USA ratified the 1954 Convention in 2008 subsequent to the looting of the Bagdad museum: See US Committee of the Blue Shield: at <http://www.uscbs.org/resources.htm>.

[59] Iraq ratified the Convention in 1967.

[60] In order to determine whether it still has such obligations would require consideration as to whether it was still an ‘occupying force’ or was now an invited guest of the new Iraqi government.

[61] Paras. 1 & 2, Article 5. The administrative mechanism to be applied in all armed conflicts to which the Convention applies, is set out in the Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict.

[62] Iraq is merely one example. Australian obligations under the Convention apply equally in Afghanistan and any of other zones of conflict in which Australia is a participant.

[63] Article 17 of the Regulations sets out the mechanism.

[64] National Interest Analysis, Hague Convention Consultation Paper, NZ Ministry for Culture and Heritage: <http://www.mch.govt.nz/projects/heritage/hague.html>.

[65] The Treaty of Versailles 1919 also contained provisions concerning the return of looted cultural property: Articles 245, 246 and 247.

[66] 5 January 1943; See too, the Final Act of the Bretton Woods Conference, July 1944, concerning restitution of looted property.

[67] Article 5 of the draft.

[68] For a discussion of the criticisms of the draft Article 5, see Chamberlain, War and Cultural Heritage, Institute of Art and Law, (2004), pp 138–139.

[69] For the full text of the First Protocol, see: <http://portal.unesco.org/en/ev.php-URL_ID=15391&URL_DO=DO_TOPIC&URL_SECTION=201.html>.

[70] Paragraph 1. It is silent as to how this is to be achieved.

[71] Paragraph 2. This seizure shall either be effected automatically upon the importation of the property or, failing this, at the request of the authorities of that territory.

[72] Paragraph 3.

[73] Paragraph 4. This is a de facto sanction for failing to prevent the export of the material but the Protocol provides no mechanism for determining the amount to be paid. Note that the obligation to pay the indemnity does not fall upon the country into which the cultural material is imported, only on the occupier of the country from which the material was exported.

[74] Part 11, paragraph 5. Note that whereas the earlier paragraphs do not apply to internal conflicts, this paragraph applies to both internal and external conflicts. There have been several examples of the reluctance of countries to return material: See Patrick O’Keefe, ‘The First Protocol to the Hague Convention fifty years on’ (2004) IX Art Antiquity and Law, 99 at 111-112.

[75] Part 111, paragraphs 6-16. In fact, all of the parties to the Protocol have accepted the whole of it.

[76] See Chapter 12.

[77] This took the form of the so-called Boylan Review: Patrick Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO, (1995).

[78] Understandably, these were states that had recently suffered devastation in armed conflict: Croatia and Slovenia.

[79] For example Kuwait.

A. Introduction

The law restricts the freedom of expression in different ways. The most obvious, are the laws against obscenity, defamation and more recently, discrimination.[2]

These restrictions are relevant not only to the content of the material but also to the manner of distribution and the place and manner of exhibition of the material. For example, the classification of publications, films, and digital media can impact on publication or exhibition, not only in the traditional media of print and broadcast but also DVD and Internet. Such restrictions are often antithetical to the intellectual freedom so important to both art practice and curatorial practice.

Throughout most of Australia,[3] it is misleading to talk of a right to freedom of expression. Certainly everyone in Australia has the right to be an artist, a performer, a writer, and to curate and present exhibitions. No law permits it and no law forbids it, and the freedom to express oneself can only be protected in a limited way.[4] Unlike the United States where the right of free speech is guaranteed by the First Amendment of the Constitution, in Australia, freedom of expression is not an inviolable constitutional right, able to override legal restrictions or government action.[5]

Two jurisdictions have bucked this approach: Victoria and the Australian Capital Territory. The first was the ACT and its approach was simple and brief: section 16 of the Human Rights Act 2004 created the first right of to freedom of expression in Australia. It is in the following terms:

15. Freedom of expression

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether:

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary:

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

This is an excellent statement as it articulates a balancing of the social responsibilities that attend a right of expression. There are limits. It is a freedom within boundaries.

The belief in freedom of expression is a fairly recent phenomenon, perhaps concomitant with the artist’s role transition from tradesman to independent genius. Similarly, the right of collecting institutions to show confronting material is something that is changes with the role of the museum, the politics of the day, and the manner and place of the display.

Certainly, the restriction of creativity, of ideas, is not new. The experience of many centuries shows that censors and their motives are extraordinarily diverse. There is the censorship imposed by religious organisations, such as that exemplified by the various popes who sought to reduce or remove the licentiousness that they perceived in Michelangelo’s Last Judgment’.[6] The political regulation of artistic freedom is similarly easy to point out. That art can be ‘ideologically corrupt’ is illustrated by the attitudes of Soviet Russia to ‘bourgeois’ art, the Nazi restrictions upon ‘degenerate’ art, the cultural stricture of the American ‘McCarthy period’ or the Taliban’s destruction of Bamiyan’s majestic fifth-century Buddhas.

One of the most obvious tools of control is the legal system itself. The law of obscenity, the law of defamation, classification regimes and anti-vilification provisions are not as dramatic as some earlier forms of restriction, but restrictions they most certainly are.

The first section in this chapter, ‘From the Obscene to the Offensive’ will examine the origins of obscenity law, the legislative framework that governs the law of obscenity and introduce the different ways in which artistic merit may be taken into account in the context of restriction of artistic expression. This section includes some comments on the compliance with and enforcement of these laws. It will then examine the interrelated statutory regimes that govern the classification, distribution and restriction of work that might be considered obscene, indecent or offensive, and the regulation of online services.

The second section examines the law of defamation. The laws of defamation provide our society with an expensive, highly complex, unsatisfactory apparatus by which some of its individuals can defend their reputation after others have exercised their freedom of speech. It is a balancing mechanism. By it, we are restricted in our commentary on others and indeed, others are restricted in their commentary on us. It is an area of enormous legal complexity and few lawyers are expert in its intricacies. This chapter discusses the components of defamation and its attendant defences of truth, fair comment and privilege.

The final section briefly looks at the legislative restrictions imposed under anti-discrimination legislation. While there are exemptions under the legislation for artistic works and it is likely that they will be interpreted so as to protect artistic expression, the parameters of those exemptions have yet to be conclusively determined.

B. From the Obscene to the Offensive

It is the aesthetic which distinguishes the artistic from the pornographic, the moral which provides the societal gauge that transforms the erotic into the obscene, and the utilitarian which suggests that the members of a healthy society enjoy only pure thoughts and can have no proper use for obscene or indecent publications, images or text.

Obscenity laws were originally concerned with protecting people from materials that might have a tendency to ‘deprave’ or ‘corrupt’ readers or viewers. They restricted access to publications, works or exhibits that were seen to have no redeeming social value.

There has perhaps been a shift in more recent times that recognises, in a limited fashion, the subjective nature of judgment concerning what is obscene, indecent or offensive. The concern with nudity and sexually explicit materials has been replaced by a broader definition of offensiveness that includes depictions of drug use or violence alongside sexually explicit material. The underlying policy reflected in our classification regime is one that seeks to protect members of a society from unwanted exposure to indecent or obscene materials, while at the same time recognising the rights of adults to see, hear and read what they want.[7] This is balanced by the taking of special measures taken to protect children from accessing or being exposed to confronting or potentially indecent material.[8]

The English Royal Academy held an exhibition in 1997 entitled Sensation. Artworks included depictions of the Virgin Mary surrounded by pornographic images, a painting of the Moors murderer, Myra Hindley, made up of child’s handprints and depictions of children with images of genitalia superimposed over their faces. The gallery avoided prosecution by designating the exhibition room in which these artworks were displayed an ‘adults only’ space and posted strong warnings that some of the artworks could be considered ‘distasteful’.[9] Would an Australian public gallery have avoided prosecution?

Role of public galleries

Exhibiting institutions themselves play an important role in defining what is acceptable, for their acquisition policies are insidiously influential in determining what material the general public can see. The formation of the Salon des Refuses and the fame that hindsight accorded many of its artists stands testimony to the powerful restrictive influence of the art establishment. Similarly, while one may complain about the machineries of censorship legislation, the commercial galleries and art museums themselves perform considerable informal censorship. Their guidelines are generally informal and unavailable for public scrutiny.

Arguably there is a need for major institutions to stand up for freedom of expression by publicly defending the material they choose to exhibit if they come under attack. By providing for a reasoned and intelligent public discourse in such circumstances, they enhance the public appreciation, understanding or at least tolerance of ideas and expression. Finally, in any consideration of the tools of control, one must acknowledge the role of the critic, the person who can promote the interests of certain creators and institutions and damage the reputations of others.

When considering the restrictive potential of obscenity law, the role of public galleries is an increasingly important one. There have been a number of occasions in Australia where pressure has been brought to bear on institutions that exhibit work that are sexually explicit and which some would characterise as obscene. It is a tradition that reaches past the removal of the Arthur Boyd Lysistrata etchings from the Bathurst Gallery and even back beyond 1907 when Norman Lindsay’s pen and ink drawing Pollice Verso was hung face to the wall at the National Gallery in Victoria. Indeed there are numerous ways that censorship can occur:

• Hiding the offending portions: In 1985 a Tasmanian artist, Anne McDonald, was invited to exhibit in Perspecta ’85 at the Art Gallery of New South Wales. After complaints, reportedly from some attendants, the gallery refused to exhibit the works. After certain pressure it agreed to exhibit the photographs if they were ‘edited’. This consisted of attaching large and obvious black shapes over the sexually explicit portions of the work. After only a few days, the covers were well dog-eared from being continually lifted by members of the public who wished to see what was being so obviously censored. To the curator’s credit, the manner of censorship emphasised the process to the viewers. The censorship was explicit.
• Removal of the work, such as when Nigel Thompson’s painting from the 1984–1985 Sulman Prize exhibition at the Art Gallery of NSW, after complaints from some members of the Art Gallery Society.
• Cancellation of the show: Sensation was a well-named show.[10] When the deliberately provocative show opened at the Royal Academy of Arts in 1997, visitors were greeted with the following warning:

There will be works of art on display in the Sensation exhibition which some people may find distasteful. Parents should exercise their judgement in bringing their children to the exhibition. One gallery will not be open to those under the age of 18.

There was violent protest, damage to works, extensive press criticism – and the exhibition attracted over 300,000 visitors. When the show opened in New York at the Brooklyn Museum of Art in 1999, public outcry was enormous, violent and the museum’s funding was threatened. In Australia, the show was cancelled by the National Gallery of Australia – not on the basis of its content but because, as the then director declared, the show was ‘too close to the market’. [11]

• Alteration of the work itself. When certain persons from the Art Gallery of New South Wales disapproved of the drug references in the painting Henri’s Armchair by Brett Whiteley, the artist was asked to paint them out. Even more extraordinary was the incident in which the Art Gallery of Western Australia ordered a conservator to painting the sexually explicit portions of Whiteley’s major work, American Dream.[12]

The threat of prosecution can be enough for galleries to withdraw a work or restrict public access. In 1982, Juan Davila’s Stupid as a Painter was seized by the Vice Squad from its place of exhibition in the Biennale of Sydney. The complainants on that occasion were an evening newspaper and a member of the Festival of Light who was a candidate in a then approaching by-election. The issue was fought, almost entirely, in the media. After timely comment by the Premier to the effect that the Vice Squad had no place in art galleries, the Minister of Police ordered the Vice Squad to return the work. It was bravely shown to the public again at the University of Sydney’s Power Gallery, shielded by an alluring red screen and a sign which read:

Viewers are advised that they may find some parts of the work in this bay offensive and disturbing. Since the work is classified with an R-rating it may not be viewed by those under the age of 18. Should any question be raised as to the legal age of a viewer, he or she will be required to complete a form stating name, address and date of birth.

In 1993 the National Gallery of Victoria came under pressure to remove Serrano’s Piss Christ from display.[13] In this case the complaints came from the Catholic Church, represented by Archbishop Pell, who argued that the image was blasphemous. Pell also applied for an injunction restraining the gallery from exhibiting the work on the basis that it was in breach of the indecency provisions of the Summary Offences Act 1988 (NSW). While Pell’s action was unsuccessful, the catalogue from the exhibition was submitted to the Film and Literature Classification Board and given a Restricted Classification.

Certain exhibitions, such as a retrospective of the work of photographer Robert Mapplethorpe (which included photographs depicting sado-masochistic acts) have caused controversy in a number of countries. In the United States the Mapplethorpe exhibition was at the centre of attempts to de-fund the National Endowment of the Arts.[14] In Australia, the Museum of Contemporary Art exhibited the work but with warning signs and entry restricted. In keeping with the current emphasis on child protection, some of the most controversial photographs were those that Mapplethorpe had taken of a friend’s children, not withstanding the fact that these photographs were not pornographic.[15] Other recent cases, such as Petrillo’s Case, discussed below are also in keeping with this trend.

Just in case we thought that we could dismiss these examples as being indicative of another ethical and cultural time, in 2008 we revisited the past when the Bill Henson controversy took over the front pages. Were the seized works ‘obscene’ at law? No. However, the power of pressure groups with a specific agenda can influence the actions of the police, corporate sponsors, the rhetoric of politicians, and the quality of decision-making by individuals under pressure.

Another way

Sometimes the puritan or sensationalist attitudes can be tempered with humour. In 2010 the Christchurch Art Gallery in New Zealand had a show called, The Naked and the Nude. Perhaps there was no public outcry because, at the entry to the exhibition, there was a sign that read:

The Naked and the Nude contains,

well, nakedness and nudity.

We advise discretion.

Simple, humorous, non-legalistic and charming. Nice.

The legal mechanisms

In Australia, two legal mechanisms operate to restrict the exposure of people to obscenity: common law and statute.

At common law, it is a misdemeanour to ‘publish an obscene libel’. This has been described in the following terms:

Everyone commits a misdemeanour who without justification … publicly sells, or exposes for public sale or to public view, any obscene book, print, picture, or other indecent exhibition; or any publication recommending sexual immorality, even if the recommendation is made in good faith for what the publisher considers to be the public good.[16]

In such proceedings, three things must be proved. The work must:

• have been published,[17]
• be obscene, and
• be published with a criminal intention (that is, to corrupt public morals).[18]

The offence of criminal libel is rarely alleged these days in Australia. The related common law offence of blasphemous libel, the publication of material that is likely to outrage Christian believers, is likewise rarely prosecuted (the last successful prosecution in Australia was in 1871) but apparently remains part of the law of Australia.[19]

In the English case of Gibson & Sylveire[20], the artists and the gallery curator/owner were convicted of the common law offence of outraging public decency. The artwork that had caused offence was a model of a head with earrings made of freeze-dried human foetuses. The two men appealed their convictions, but the Court of Appeal rejected that appeal. Kearns argues that one of the troubling aspects of the case is that the Court of Appeal did not consider Gibson’s position as an artist to be in any way relevant to the offence. Further, there was no defence available to either the artist or the curator that the exhibition was for the public good or of artistic merit.[21]

Although prosecutors do occasionally have recourse to the common law, they prefer to utilise the various pieces of legislation that attempt to limit what society’s members can see, if not enjoy.

There are many such pieces of legislation and thus obscene libel is only resorted to in situations in which the legislation is insufficiently flexible to permit prosecution. Given the wide language of the legislation, these occasions will be rare. However the common law provides the basis for the legislative regimes, even where the language of those schemes has changed from being concerned with obscenity to being concerned with offensiveness or indecency.

Defining ‘obscenity’

The starting point of any discussion of the definition of what is obscene must be the old English decision of R v Hicklin.[22] In that case the judge described obscenity in the following way:

The test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.

From this point, the dual concepts of ‘obscenity’ and ‘the tendency to deprave and corrupt’ were interwoven. Attempts by the judges to give meaning to the phrase ‘tendency to deprave and corrupt’ cannot be counted as great moments of jurisprudence. Indeed, as Justice Windeyer once observed, the Hicklin test ‘has only survived really because, although constantly mentioned, it and its implications have been ignored. Courts have not in fact asked first whether the tendency of a publication is to deprave and corrupt. They have asked simply whether it transgresses the bounds of decency and is properly called obscene. If so its evil tendency and intent are taken to be apparent’.[23]

Many cases have decided what a ‘tendency to deprave and corrupt’ does not mean. For example, the case of R v Martin Secker & Warburg Ltd,[24] held it to mean more than ‘to shock or disgust’, and in Knuller v DDP[25] it was held not to correspond with the phrase ‘to lead morally astray’. But considerable difficulty lies in understanding the positive guidelines attempted by the courts. Most cases give the words ‘tendency to deprave and corrupt’ one of three meanings:

First, they can mean that the tendency of the (work) is to arouse impure thoughts in the mind of the reader or the viewer. Secondly, they can mean that such a person would be encouraged to commit impure actions. Thirdly, they can mean that the reading of a book or looking at the picture would endanger the prevailing standards of public morals.[26]

In Australia, the third of those categories has attained predominant judicial favour. For example, in Crowe v Graham,[27] it was held that an indecent picture is one that is ‘an affront to modesty’. This is based on the belief that there ‘does exist in the community at all times however the standard may vary from time to time – a general instinctive sense of what is decent and what is dirty’.[28]

In R v Close, Justice Fullagar stated that the ‘tendency to deprave and corrupt’ was not to be taken as

a logical definition of the word ‘obscene’, but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene, but is the characteristic which makes an obscene publication criminal.

Thus the tendency to deprave and corrupt is not to be taken as the sole test of what constitutes obscene libel. Rather, to prove the offence it will be necessary to show that the work is ‘both offensive according to current standards of decency and calculated or likely to have the effect described in R v Hicklin.’[29]

Both aspects of this two-limbed test may be influenced by the nature of the work (for example, an artwork or medical text) and the manner and place of its exhibition:

1. The nature of the work

The cases recognise that works of art enjoy a certain amount of licence. Thus it has been held that the ‘representation of nudity in what is not a work of art is not to be regarded as protected (merely) because similar realism in a work of art would not be regarded as indecent.’[30] On the other hand, the issue of indecency cannot be answered by simply asking, ‘Is it art?’ Had this been the relevant test, a photographic representation of Giorgione’s Sleeping Venus would surely not have been found to be an indecent document.[31]

1. The manner and place of exhibition

The manner and place of the work’s exhibition is relevant to both limbs of the obscene libel test.

As to the first (whether or not it is obscene, at all), suppose that a lithograph of erotic theme is exhibited in an art gallery and an identical image is hung in a school. The hypothetical community standard of what is decent would probably accept the former and condemn the latter. An artwork acceptable in the one place is obscene in the other.

As to the second limb (the tendency to deprave and corrupt), the manner and place of exhibition is directly related to the law’s concern with, who is likely to see the work and thus be influenced by it. So, in the above example, the patrons of an art gallery are considered less likely to be ‘depraved and corrupted’ by the erotic work than the younger and, presumably, more impressionable school children. Furthermore, nobody finds in himself or herself an example of a person actually depraved by erotica:

(so) discussion tends to centre on a hypothetical, unencountered ‘them’ in contrast to incorruptible ‘us’. This perhaps is why in 1962 the courts established that no amount of exposure can deprave a policeman: He is indissolubly one of ‘us’.[32]

The legislation

Every State and Territory has legislation restricting the exposure of its people to obscene or indecent material. These are all derived historically from an English statute of 1857 known as Lord Campbell’s Act. This was ‘intended to apply exclusively to works written for the single purpose of corrupting the morals of youth and of a nature calculated to shock the common feelings of decency in a well regulated mind’.[33] Although the explanation reflects a Victorian attitude, it is none the less one that remains relevant to a description of the modern position in so far as the various legislative schemes show a concern for community standards of decency. When looking at the selection of State legislation below, two things will be apparent: first, the echoing theme of the Hicklin test (the tendency to deprave and corrupt); but second, the variety of ways in which each State has moved away from these early roots.

At a Federal level, the regulation of potentially offensive material occurs through the Classification (Publications, Films and Computer Games) Act 1995 (Cth)[34] and other Acts such as the Customs Act 1901 (Cth) (which, generally, controls the importation of indecent or obscene works),[35] the Criminal Code 1995 (Cth)[36] (which makes it an offence to ‘transmit, make available, publish, distribute, advertise or promote child pornography material).[37] The latter is relevant to every collection that places on its website any sexually explicit image involving a child. There is no artistic merit defence. A lack of intention is not a defence. It is a strict liability offence.[38] If you think that the Henson image on your website is not problematic, consider the definition of child pornography provided by the Act:

‘child pornography material’ means:

(a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) material the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(ii) a representation of such a sexual organ or anal region; or

(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age; in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c) material that describes a person who is, or is implied to be, under 18 years of age and who:

(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii) the breasts of a female person who is, or is implied to be, under 18 years of age; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

Obscene, indecent, offensive or objectionable?

Some states have now opted to use the term ‘indecency’ rather than ‘obscenity’ (and indeed some States use both). The definitional distinction has attracted considerable attention in the courts. Generally speaking, both terms contemplate the contravention of accepted societal standards of decency, with obscenity at the higher end of the scale and indecency at the lower end. What is indecent is not necessarily obscene, but what is obscene will always be indecent.[39] Thus, presumably, the law is stricter in those States that prohibit indecency than those which prohibit obscenity. But the distinction and its importance is always only one of degree and fact and thus, in practice, the personal view of society’s standards held by the judge will have more impact on the outcome of any particular case than this matter of sliding definition. Other States have developed categories that refer to ‘objectionable’ or ‘offensive’ material, but again it the underlying test looks at whether the material offends recognised community standards of decency.

Summary offences, crimes and misdemeanours

Most States regulate indecent or obscene material though legislation such as their Crimes Acts, Summary Offences Acts and Police Acts. Some of this legislation has moved explicitly towards a ‘reasonable adult’ or ‘community standards test, while others continue to use the language of the Hicklin test and prohibit material that has a tendency to corrupt morals.[40] However, where the case concerns sexually explicit material, these different sections frequently rely on the judge to decide whether the publication, picture, film or photograph offends accepted community standards.

Thus, as already mentioned, the case of Crowe v Graham[41] held that an indecent picture was one that was an affront to modesty, taking into account the current community standards. In Sancoff v Holford; Ex parte Holford,[42] the judge described the proper approach for a magistrate to take. It was held that the magistrate should:

1. look at the article;
2. adopt what he or she reasonably thinks are proper standards of decency now commonly accepted by the average person in the community; and
3. find whether such a person taking up the publications and reading them would regard them as publications offensive to his or her modesty in regard to matters of sex.

In determining whether or not a work ‘offends modesty’ the courts will generally take into account the manner and place in which the article was displayed (note however the South Australian exception discussed below). For example, In the Appeal of Marsh[43] concerned four sketches by Tane, which were seized from the Nth Degree Gallery in Paddington. They could be plainly seen through the window from the street. In dismissing the charge his Honour said that the distinction between the decent and indecent in works of art depends on the honesty and integrity of the work in its use of the sexual or erotic theme. Such a work – if it is dealt with frankly and artistically – is not indecent. He went on to say that the place and manner of display is a relevant factor. Thus, something that might be indecent if exhibited in a church or outside a school might not be indecent if exhibited in a Paddington art gallery, for the community has different expectations and imposes different standards on such a place.

However, the placing of a work in a gallery will not always avoid prosecution. In 1984, Juan Davila, along with several other artists were commissioned by the Lake Macquarie Regional Gallery to create works for an exhibition on the theme of ‘Romance’. The show had been previewed by the mayor and local government members and had been seen by large numbers of viewers. The Vice Squad went to the gallery after receiving a complaint from a member of the public (who was also a member of the Call to Australia Party, the political wing of the so-called Festival of Light). A week later, only a few days before the closure of the show, they returned with a warrant and seized three of the works by Davila. The council was charged and convicted. It did not appeal because it did not wish to prolong the considerable publicity that the Call to Australia Party was receiving over the affair.

Pell v Council of Trustees of the National Gallery of Victoria[44] has been mentioned above in the context of the offence of blasphemous libel. This case also examined the meaning of indecency and obscenity under the Summary Offences Act 1966 (Vic), placing the two concepts along a spectrum. Both concepts represented ‘a failure to meet recognised standards of propriety’, and the extent of the failure was what determined whether an act or display was indecent or obscene. The question raised in Pell was whether the photograph that offended specific religious standards or could constitute an offence against contemporary community standards, given the predominantly secular, tolerant and multicultural nature of the Australian community. The court avoided making a conclusive finding but seemed to indicate that the photograph ought not be regarded as obscene or indecent.

Phillips v South Australian Police[45] is interesting for its discussion of the relevance of the location or manner of display of the material in question. The South Australian Summary Offence Act directs that such considerations are irrelevant to a finding of obscenity or indecency. The court in this case, asked to determine whether video tapes of boys undressing and urinating were indecent or obscene, indicated a preference for the common law position that took into account the circumstances in which the material was produced and displayed and the purpose for which it was made. The court (applying the same sliding scale referred to in Pell) indicated that, taking into account contemporary community standards, there was nothing inherently obscene or indecent in the depiction of the bodies of young boys. Ironically, because the Act prevented the court from considering the circumstances in which the tapes were made (secretly, in a boys changing room, without the consent of the subjects), the finding that there was nothing inherently obscene or indecent in the tapes meant that the defendant was successful in his appeal against conviction.

Artistic merit?

The law has approached the intersection between art and obscenity in different ways. One approach is to say art and obscenity are two mutually exclusive categories; if a work has artistic merit it cannot be indecent. This argument works until the artistic purpose pushes beyond an uncertain line of social acceptability whereupon the public says ‘that is a bridge too far’. For example, artwork that depicts two adults performing a sex act might be acceptable (think Persian miniatures) but if the adults were substituted for children we may wish to say, ‘This is art, but it is indecent.’

A second approach is to say artistic merit should be relevant to determining whether or not material is indecent. It recognises that we should treat Les Demoiselles d’Avignon differently from gross and demeaning sexually explicit photographs readily available from any Internet porn site. This approach says that even if a work is of proven artistic merit[46], that merit will not necessarily provide a licence for talented obscenity.

The fact that conduct is engaged in for political or artistic purposes does not throw around such conduct a kind of cordon sanitaire, producing the result that it cannot be found to be illegal. It is entirely possible that a person might, for political or artistic purposes, take a photograph of an act that a jury regards as an act of indecency.[47]

This quote is from the judgment in a case in which the defendants had taken a number of photographs of an eleven-year-old girl, with the consent of the girl’s mother, for purpose that the court accepted could be ‘described as political, in the broadest sense, or artistic. In particular the photographs were taken, it was said, for the purpose of making a protest against abuse of females’. The court recognised that the artistic or political purpose was relevant for determining whether the photographs were indecent and also that the test was whether the photographs offended contemporary community standards. However, the Court of Criminal Appeal dismissed the appeals, indicating that artistic purpose or merit was not determinative and that it was open to the jury to find that, notwithstanding that legitimate purpose, the photographs were indecent. The CCA implicitly endorsed the direction given to the jury that the relevant community standard was ‘not a test of the most avant garde members of the community’ but the ‘ordinary standards of propriety of respectable people in this community.’ In a similar case in Western Australia, an art student, Concetta Petrillo, who had taken photographs of her children as part of her coursework was prosecuted under the Western Australian Criminal Code. Despite the clearly apparent artistic purpose of the work, the case dragged on for nearly two years. Petrillo, however, fared better. Her trial culminated in a verdict of not guilty.[48]

The Henson affair

In May 2008 the police seized 20 of 41 images from a Bill Henson exhibition at Roslyn Oxley 9 Gallery. The police informed the press that they were doing so with the intention of laying charges under both the NSW and the Commonwealth legislation for publishing an indecent article.[49] In explaining the seizure, the police superintendent who made the decision to seize the works issued the statement: ‘This morning police have attended the gallery and executed a search warrant and seized some items depicting a child under the age of 16 years in a sexual context.’[50] Apparently ‘sexual context’ means ‘nude’ in police speak.

It was a shock horror media event that allowed the ignorant and the righteous an opportunity to voice their views. The distinction between pornography, paedophilia, and sexually explicit art was ignored. Prime Minister Rudd, without seeing the images, felt able to publicly state that he found ‘the work absolutely revolting’ and without artistic merit. Anonymous callers threatened to burn down the gallery that had exhibited the works. The police accompanied by TV news crews examined the Henson works held by public collections. Talkback radio was in meltdown. And all this over works that involved nudity but not obscene acts and where the artist had the consent and support of the child and the parents.

Eventually everyone had a cup of tea, a Bex and a good lie down when the works were submitted to the Classification Board. The Board gave the works that had sparked the fire, a PG rating. And remember that the film Harry Potter and the Prisoner of Azkaban is rated M15+.

Some legal analysis of Henson affair

1. NSW OFFENCES

In NSW there are two avenues available – although commentators in the general media rarely bother to distinguish between them. First, there are the traditional ‘indecent/obscene publications’ provisions and then there are the provisions designed to deal with hard-core child pornography offences. We know now that the police would fail to lay charges of any kind but while they made up their mind, the public debate veered between paedophilia, pornography and offensiveness without much concern for the difference.

It was never likely that either artist or gallery would be convicted of having committed an offence under the child pornography laws: ‘A person who produces, disseminates or possesses child pornography…’,[51] or…uses a child for pornographic purposes’,[52] is guilty of an offence. To establish such an offence, the Act requires that the prosecution show that the material is child pornography. To do this the prosecution would have to prove that the material:

(i) depicted or described a child:

(a) engaged in sexual activity, or

(b) in a sexual context, or

(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context), and

(ii) that the material would in all the circumstances cause offence to reasonable persons.

None of the images showed children ‘engaged in sexual activity’ and certainly none depicted a child as the ‘victim of torture, cruelty or sexual abuse’. The only possibility was to argue that children were depicted ‘in a sexual context’. This phrase is not defined in the legislation but it would be a Sisyphyian taskto argue that ‘nudity’ is a synonym for ‘sexual context’. Unless the prosecution could get over this hurdle it was not even necessary to ask whether the material would ‘in all the circumstances’ cause offence to reasonable persons[53] or whether the artistic purpose defence provided in the legislation would apply.[54] It would have been a defence if,

having regard to the circumstances in which the material concerned was produced used or intended to be used, the defendant was acting for a genuine … artistic … purpose and the defendant’s conduct was reasonable for that purpose.

No, although the media had allowed the argument to slew off into anger and indignation against child abuse and child pornography, there was little likelihood of proving any such thing.

Alternatively, the police may have laid charges under section 578C of the Crimes Act 1900. A person who publishes an indecent article is guilty of an offence.[55] This was a much more viable avenue for the prosecution. Section 578C is a provision that has been around for a very long time in one form or another and has spawned many cases as to the meaning of ‘indecent’. This is discussed at length elsewhere in this chapter.

One interesting aspect of section 578C is that it is sometimes thought to provide an artistic merit defence:

(6) In any proceedings for an offence under this section in which indecency is in issue, the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) is admissible as evidence.

As you will note, this does not actually say that the work cannot be ‘indecent’ if it has artistic merit. Indeed it does not provide a real defence of artistic merit. It doesn’t even say that the artistic purpose and merit of a work must be taken into account when determining whether a work is indecent. It merely provides that such evidence is admissible. In practice it is relevant to the magistrate’s sentencing decision.

When the Henson storm had calmed, the NSW Attorney-General announced that the government would amend the legislation. Those old enough might have remembered that after the ruckus caused by the seizure of Juan Davila’s Stupid As A Painter, Premier Wran declared that the NSW Government would amend the indecency laws so that artistic merit would be an absolute defence. No such changes were introduced. Two decades later, another government faced by the same embarrassments, took a different approach and declared that it would repeal the artistic merit defence altogether.

Fortunately, the reform was more nuanced than the press release. In 2010 the NSW Government passed the Crimes Amendment (Child Pornography and Abuse Material) Act 2010.[56] This did away with general concept of child pornography[57] and replaced it with ‘child abuse material’. Child abuse material is defined as material that depicts or describes:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child,

in a way that reasonable persons would find, in all the circumstances, offensive.

It will no longer be a defence to that offence that the material concerned was produced, used or intended to be used by the defendant acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose.[58] Instead, the new provisions set out the factors to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive. These factors include any literary, artistic, educational or journalistic merit of the material. These are matters now to be taken into account when considering whether or not the material is offensive. If it fulfils the definition of ‘child abuse material’ and if the court finds that reasonable persons, in all the circumstances, would (not could) find the material offensive, the offences may be proved. Now, artistic merit and intention is relevant only to the determination of whether the material is offensive. If it is, artistic merit and intention is no defence. If a gallery wishes to show sexually explicit images, the safest avenue is to submit them to the Commonwealth Classification Board. Classification provides the exhibitor with a defence.[59]

1. Commonwealth offence

As mentioned above, when the NSW police seized the Henson works they said that they were considering laying charges under the Commonwealth legislation. How real was this possibility?

The basic offence is for a person to use a ‘carriage service’ in a way that ‘reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive’.[60] The test for what is ‘offensive’ is as follows:

Determining whether material is offensive

The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; an

(b) the literary, artistic or educational merit (if any) of the material; and

(c) the general character of the material (including whether it is of a medical, legal or scientific character).[61]

It is for the magistrate to determine the standards of ‘morality, decency and propriety generally accepted by reasonable adults’ and this makes the test enormously subjective. Note that ‘artistic merit’ is not, in itself, a defence. It is merely one of the factors to be taken into account in determining whether or not the material is indecent. There is no question that that the communication could have artistic merit but still breach the ‘morality, decency and propriety’ test.

Enforcement, compliance and reform

Enforcement of the obscenity laws is the responsibility of the police. They usually act only when a complaint is made but they have the power to proceed on their own volition. Usually, members of the vice squad will enter the gallery and informally look at the suspect works. Then, if some of the works give offence, they will approach the director and suggest that if the offensive works are not removed, they will be seized and legal proceedings may be commenced. Sometimes, this informal enforcement procedure sees the work removed from exhibition and society’s sensibilities protected. However, the work may be in itself an important one, or it may be important to the balance or theme of the exhibition. Or the work may gain an importance by the very fact of its censorship and become a symbol of artistic freedom denied.

With the informal system of enforcement at least the gallery, and to a lesser extent the artist, has two options: concede quietly or fight loudly.

There is no doubt that any sophisticated society will demand that there be some laws against ‘offensive’, ‘indecent’ or ‘obscene’ material and it is totally impracticable to suggest that such laws should be repealed or that works of art in general should be excluded from their ambit or even that there should be an absolute defence for works of art. To argue the social desirability of such suggestions is a waste of time. They are politically impossible. Rather, a simple (and politically acceptable) reform would be to enact a statutory presumption whereby material exhibited in a bona fide art gallery or museum would be presumed to be not ‘indecent’, ‘offensive’ or ‘obscene’ for the purposes of the legislation. The suggestion that this would allow every porn vendor to open an ‘art gallery’ and sell disgusting material without appropriate public control would surely be met by the ability of any court to determine whether the gallery was bona fide.[62] In addition, a suitably drafted defence of ‘artistic merit’ would also ensure that the material (as well as the venue of exhibition) was put into its proper perspective.

As matters stand, the customer of a newsagency is subjected to material that is far more sexually explicit, confronting and lacking in artistic merit than that which adorns any museum wall.

For the exhibiting organisation the message is clear – if not simple. If the material is erotic or brutish to such an extent that it breaches the community’s standards of ‘decency’ one can expect trouble. The heinous feature of the law of obscenity is that one cannot possibly know whether one has breached that nebulous standard until it is too late.

National classification scheme

The classification process is a legislative scheme designed to restrict or regulate access to material according to the principles outlined in the National Classification Code 2005 and the National Classification (Serial Publications) Principles 2005. These, on the one hand seek to protect people from unwanted exposure to offensive material, while at the same time recognising that adult members of the community should ordinarily have a choice about what they can see, read and watch.[63] In 1995 a national cooperative scheme was established.[64] This legislation was accompanied by complementary state legislation containing the enforcement provisions. These enforcement provisions compel compliance with the Federal scheme and set out the penalties for failure to comply. In some cases these enforcement provisions intersect with other state legislation that governs indecent or obscene material. For example in New South Wales if a film, publication or computer game has been given a classification under the Commonwealth scheme allowing it to be published or distributed, then it can not be an indecent article. It is specifically excluded from the definition.[65]

Classification decisions are made by the Office of Film and Literature Classification in accordance with the National Classification Code. The Code sets out the criteria for different levels of classification (from General to Refused Classification) and also indicates that the Code is concerned with not only nudity or sexually explicit material, but also material that depicts or promotes illegal activity, violence or drug use.[66] In making classification decisions, the matters that are to be taken into account include the ‘standards of morality, decency and propriety generally accepted by reasonable adults’, whether the material has artistic merit, where the material is going to be displayed or distributed and the material’s intended audience.[67] The ‘reasonable adult’ test owes much to the development of the law in relation to the regulation or prohibition of the possession, publication or distribution of indecent or obscene materials away from the Hicklin test towards a standard that looks not so much at the tendency of material to deprave or corrupt, but rather asks whether the material offends generally accepted community standards.[68]

The National scheme treats ‘publications’ and ‘films’ differently. Publications (which includes ‘any written or pictorial matter’) need only be classified if they are ‘submittable publications’ and they are sent to the Board for classification. In effect, with regards to artworks, catalogues and so forth, these will not ordinarily come to the attention of the Classification Board unless they are sent to the Board or someone makes a complaint. This is what happened in both the Henson case and the Pell case (see above). Following the controversy over the exhibition of Serrano’s work, Piss Christ, the catalogue was sent to the Board by someone offended by the work and the Board gave it a restricted classification. When the Board reviewed the Henson photographs they were given a PG rating.

By contrast, all films must be submitted for classification, regardless of content, if they are to be shown in public. The definition of ‘film’ is a broad one and would include video installations shown in galleries as well as animated art. It certainly includes all film and video shown in the institution’s education programs.

Perhaps the ordinary procedure would be to apply for an exemption from classification. An application for an exemption needs to be accompanied by a synopsis of the ‘film’. An exemption can only be granted if the classification board is satisfied that the ‘film’ would not be given any form of restricted classification such as MA, R or X (see above). The board could ask to see a copy of the work if it cannot make a decision based on the synopsis. In making its decision to grant an exemption or to classify a submitted film the classification board is bound to consider the ‘artistic merit’ of the film but as with publications, the artistic qualities of the work will not in and of themselves be determinative of the decision.

Regulation of online services

A recent development in the area of classification and censorship has been the attempts to extend censorship regimes to material available over the Internet. This ‘net-widening’ has been prompted by concerns about the easy availability of pornographic material on the web and in particular the use of the Internet for the circulation of child pornography. The move to regulate and restrict Internet content is characteristic of what has been termed the ‘moral panic’ engendered by the difficulties of restricting access to indecent, obscene or offensive material on the Internet.[69] The Australian response to concerns about the content of websites and the use of the Internet for circulation of potentially illegal material has been to extend the classification scheme governing publications and films to the content of websites. The Broadcasting Services Amendment (Online Services) Act 1999 (Cth)[70] establishes procedures for the removal of content that breaches the standards of the national classification scheme.

The scheme is established under Schedule 5 and Schedule 7 of the Broadcasting Services Act 1992. It establishes a complaints mechanism that allows complaints to the Australian Communications and Media Authority (ACMA) about potentially offensive website content. The Act sets out certain categories of prohibited online content.[71] The ACMA has powers to investigate complaints and can issue a ‘take-down’ notice to the ‘content service provider’ – the host of the content. There are a number of penalties available under the act for failure to comply with a take-down notice or failure to take reasonable steps to restrict access. If you wish to challenge the take-down notice, you have a right of appeal to the Administrative Appeals Tribunal.

C. Defamation[72]

Introduction

Defamation, or libel and slander as it is still referred to England, is the delicate balance which the law tries to achieve between freedom of speech and protection of reputation. That balance seeks to give effect to contemporary custom and culture. What used to be offensive and damaging may now be accepted as satirical or even complimentary.

The relevant principles are found in state and territory laws as opposed to federal law. This meant that eight different laws could apply to one publication across Australia on the television or Internet for example. However, in 2005, defamation law in Australia was simplified by a uniform law across Australia. That is, each state and territory enacted a statute which is identical in terms of the law applying to defamation and the defences available to those who publish defamatory material.

What is defamatory?

Publication can be in almost any medium of communication whether by conversational word, written communication, a film or photograph, a painting or sculpture or even by silent gestures. Publication must also, of course, be communicated to at least one person other than the person defamed.

The publication must convey a defamatory meaning, which is referred to as an ‘imputation’. Many cases do not concern explicit outbursts of invective, but are subtle inferences or innuendos which are often unintentional. Whether one intends to defame is of course irrelevant;, it is what the words actually convey which matters.

Whether or not an imputation is defamatory will depend on whether the published material conveyed a meaning which can lower that person’s personal or business reputation in the eyes of reasonable members of the community (applying general community standards) or lead people to ridicule, avoid or despise that person.

Examples of what can be defamatory – that the plaintiff was:

• running Premier Cabs like a ‘little Hitler’[73]
• a con-man or confidence trickster[74]
• fraudulently obtaining a disability pension while still able to pursue a hobby of parachuting[75]
• a gangster and a criminal.[76]

Identification

The person defamed must show that he or she is the actual individual referred to if not expressly named. For example, there may be a drawing of a recognisable person (even known only to a few people) portrayed in a ridiculous light. One such case concerned a cartoon showing a well-known female newsreader dressed on top but graphically naked under the desk, entitled ‘newsflash’. The real person was recognisable from the cartoon and it portrayed her in a ridiculous light, which she considered went beyond harmless humour (the case was settled without trial).

The test is whether some readers or viewers (who have knowledge of certain facts) would reasonably understand the words or images as referring to the person defamed.

A person may also be identified by a description of their occupation such as a CEO or even a director (there may also be a danger in a small group such as directors of coincidentally defaming other directors as well).

Ridicule and satire

Satire tears down façades, deflates stuffed shirts and unmasks hypocrisy by cutting through the constraints imposed by pomp and ceremony, it is a form of irreverence as welcome as fresh air.[77]

If a man in jest conveys a serious imputation he jests at his peril.[78]

Two very different views and illustrative of the lottery in seeking these questions to be determined by the Courts, as one judge may think it is harmless satire or acceptable opinion, another may think it offensive and defamatory. There is no doubt that ridicule can be defamatory. There is a fine line between trivial ridicule and that which is actionable. Satire is a particularly effective means of ridicule and thus susceptible to defamation actions.

There are cases going both ways. After all, what seems on the surface to be trivial has been held to be defamatory and vice versa. A few cases illustrate the point:

• A photograph of the footballer Andrew Ettingshausen’s penis was said to expose him to ridicule and the photograph was found by a jury to be defamatory.
• A song by Pauline Pantsdown called Back Door Man, which featured digitally sampled words of Pauline Hanson was held to be prima facie defamatory of her (enough to warrant an injunction).
• The case over the ‘newsflash’ cartoon referred to above was settled out of court.
• A Gary Larson cartoon depicted Satan, a trident and the words, ‘For a good time, call 555 1232’ and ‘Satan is a warm and tender guy’. The phone number belonged to a woman who sued on the grounds that the cartoon led people to believe that she was ‘akin to the devil’ and ‘pretends to be a pleasant person when in fact she is evil with evil intentions’. The plaintiff failed on the grounds of reasonableness. In this case,79 Justice Levine commented that the test was ‘the ordinary reasonable reader, knowing the relevant facts’ and not ‘what must have been a great deal of weird people who merely called the telephone number’.
  
• Bare Buttocks and the SMH : The Sydney Morning Herald also found itself on the defence after it published a photograph of a man positioned beneath a billboard displaying the bare buttocks of two women, accompanied by text including ‘they like to watch’. The plaintiff pleaded that the whole of the matter complained of conveyed the defamatory imputations that he was a dirty old man, a voyeur, sexist and the kind of low individual who would pose in front of a billboard of scantily clad young girls for the purpose of having his photograph in The Sydney Morning Herald. The case was settled before the jury had the opportunity to decide the publication’s meaning and its implications.

Ridicule – what is defamatory?

Ridicule can equally be considered defamatory. Case law to date has found exposure of a plaintiff’s penis, description of an actor as ‘hideously ugly’, or photographs of a plaintiff looking absurd sufficient ridicule to be held defamatory. In many instances it simply depends on the subjective view of the judge or jury.

However insulting they may be, words that do not tend to damage a person’s reputation or cause their exclusion from society or hold them up to ridicule are not actionable. Determining in all the circumstances what is ‘more than trivial degree of ridicule’ and what is mere ‘vulgar abuse’ is not straightforward. Invective, such as labelling a person an idiot or stupid or even insane, where the context is clear that the publication is a more of a rant than a calm and clinical allegation of fact, would not be actionable as the reasonable reader would not believe it to be literally true. However, comparisons of photographs of individuals as ‘Miss Piggy’ or ‘hideously ugly’ have been held to be defamatory.

Defences

1. Honest opinion

For publications that may engage in reviews of public works, truth is rarely a defence as such views cannot usually be proved literally true. If they can be proved true then this is an effective defence as after 2005 there is no public interest condition to this defence, so there is no ‘privacy’ element any more in defamation (prior to 2005 an allegation not in the public interest, for example adultery or the like, could not be defended on truth). As an aside, there are proposals to introduce a statutory tort of privacy in Australia but this has not happened yet so there has been no replacement law following its removal from defamation law. (England for example has a much stricter personal privacy law.)

The most appropriate defamation defence in this sphere of publication (public reviews and so forth) is the law of ‘fair comment’ now known as ‘honest opinion’.

The rationale of this defence is the public protection of an expression of opinion on an issue of fact that is considered to be a matter of public interest. It is of course every person’s right to express an opinion on matters of public interest. In essence this is a right to freedom of speech on a topic of public interest. ‘Public interest’ has been interpreted very broadly to include any public exhibition or topic within the public arena.

Such an opinion may be contentious or possibly grossly exaggerated, but it is nevertheless defensible. The first step is to ensure that the matter complained of was an opinion and not a statement of fact.

Having determined this and that the subject matter is one of public interest, the following must be established:

• the facts upon which the comments are made are contained in the publication or are ascertainable by the reader;
• the facts are true (or were published under another defence called ‘qualified privilege’);
• the comment was the defendant’s opinion.

The usual examples are theatre or book reviews where the writer’s personal opinion is the central theme. A cartoon by Patrick Cook in The Sydney Morning Herald depicting a retirement home with individuals living in boxes being fed through slits was found by a jury to be an honest opinion based on the known facts of the architectural style of Harry Seidler.[80]

A further colourful example was the case of Meskenas v Capon[81] where the artist Vladas Meskenas sued the director of the Art Gallery of NSW for describing his portrait of Rene Rivkin as ‘Yuk’. Capon raised the defence of comment but in cross-examination admitted that he did not intend to convey the defamatory meanings (imputations) pleaded by the plaintiff (which related to Meskenas’ ability to paint not the quality of the painting). As the law in NSW was then (under the old 1974 Defamation Act), a defensible opinion had to be the actual imputation pleaded by a plaintiff (and not as per the 2005 Act where the opinion may be derived from the publication itself not just the precise defamatory meaning). Under the old law therefore, the defence failed. However, the victory was rather pyrrhic with a meagre damages award of $100 from the jury.

Following a recent High Court case,[82] the law relating to public reviews has been clarified. For comment to usually apply, the facts upon which it is based must be present or indicated or notorious (that is in the public arena). Often a review does not supply all the facts but simply passes opinion (for example the view of the Rivkin painting as ‘yuk’). Now where material is submitted for public criticism, it is not necessary for any reviewer to include the facts behind the review and therefore public reviews stand apart from the conventional cases on comment.

1. Innocent Dissemination

Another defence worthy of mention in this context is innocent dissemination. This defence excuses those who have no control over publication such as printers, libraries and newsagents as well as Internet service providers. However, this is only where such a person or entity ‘neither knew nor ought to have known’ of the defamatory content. There is a difference between mediated or unmediated (unfiltered) web material as where it is clear that material has been considered beforehand then in it is no longer innocently disseminated and other defences must be relied upon.

The defence could be applicable to a collecting institution which is not aware that something is defamatory in circumstances for example, where a work is believed to be fictional or is only defamatory with special knowledge of extrinsic facts.

There are other defences available (such as qualified privilege) but in this context the main defences would be comment/honest opinion and possibly innocent dissemination.

Damages capped

A surprising inclusion to the uniform law is the capping of general damages (currently indexed at $294,500). Under the old law in NSW, each imputation was a separate cause of action, so multiple imputations could mean cumulatively large awards. Under the new regime there is only a single cause of action for each publication,[83] so general damages will be capped at the statutory total unless the court awards aggravated damages in excess of that figure.

Damages can be mitigated by evidence of an apology or correction being published before the trial or evidence that a plaintiff has already recovered damages or even brought proceedings elsewhere in similar circumstances.

An apology cannot constitute an admission of liability and is not admissible in evidence for this purpose. This is a very effective way of dealing with complaints as apologies can be given freely without concern that they constitute admissions of liability.

Limitation period

Proceedings for defamation must be brought within one year from the date of the publication. The period can be increased to three years if the court is satisfied that it was not reasonable for a plaintiff to have commenced proceedings within a year. If not brought within time, the right to claim is lost.

Risk management checklist

Below is a series of suggestions in no particular order that may assist in minimising risk:

• Always look at potentially defamatory statements as if you are the person defamed. Ask yourself how you would feel to be on the receiving end and consider alternative wording if appropriate – a carefully worded qualification can diffuse a defamatory statement without losing the intended thrust.
• Be sure that the real meaning of facts is obvious and there is no unintentional inference present.
• Avoid expressing an opinion unless you honestly hold that opinion.
• Always check the information that underlies any defamatory statement; do not assume its correctness. If there is simply too much, try taking a sample and test the thoroughness of an author’s research on that sample.
• Satire – although vulgar abuse and light ridicule are not actionable, assess whether the material is humiliating or unnecessarily cruel. Also consider whether it ridicules someone’s race, gender or sexuality.
• Instil an effective email policy to ensure staff are aware of these pitfalls in such a spontaneous forum.
• Put in place a system for vetting third party material such as contracted or guest seminars or other public programs. Check draft contracts to provide warranties/indemnities about defamatory and copyright material from such individuals.
• Carefully filter any material intended for a public website and ensure access is restricted for new material.

Getting a complaint

There is nothing quite like a solicitor’s letter threatening defamation proceedings to get stomach muscles knotted! The most obvious advice is do not respond (apart from a holding letter) until the facts have been properly investigated and an assessment made as to the real risk of liability.

If after such an investigation (including possible legal assistance), you decide that there is a significant risk then you should consider an offer of amends under the Act and/or an apology.

First, the Act provides a procedure whereby an early apology and offer to pay costs and consideration of some monetary compensation (although this is not mandatory) may provide you with a full defence (regardless of other defences) if it is a reasonable offer and made within 28 days of a letter of complaint (which should state that the letter should be regarded as a ‘concerns notice’ under the Act). Part 3 of the 2005 Act spells out the steps which must be taken for such an offer and which must be followed carefully.

Even if no offer of amends is made, an apology can now be given openly without fear that this is an acceptance of liability that may take away defences such as truth or comment. The Act now forbids any apology being used in such a way, so it can always be used by a defendant to reduce damages without fear and should be seriously considered if there is a real risk of ultimate liability.

Misleading or deceptive conduct

Finally, a brief word should be said about misleading or deceptive conduct under section 52 of the Trade Practices Act 1975 (Cth). Often a complaint may include this as well as defamation. This Act does not apply to the media who are exempt from section 52 as they are ‘information providers’ under section 65A of the Act. There are no known cases on this topic, but there must also be an argument that a collecting institution may also be an ‘information provider’ and also exempt. If such a claim is made against you then this may be an available argument.

C. Anti-Vilification Legislation

The structure of this legislation that makes vilification on the basis of race or homosexuality unlawful is similar in all jurisdictions.[84] Generally, in the context of considering whether the display of an artwork or the performance of a dramatic or musical performance might be affected by the legislation, it is the following questions are relevant:

• Was the conduct or act in public?
• Did the act or conduct ‘incite hatred towards, or serious contempt for, or severe ridicule of, a person or group of persons”[85] or was the act ‘reasonably likely, in all the circumstances, to offend, humiliate or intimidate a person or group of people’?[86]
• Was the act done because of the race or other characteristic of the person or group of people?
• Was the act or conduct done reasonably and in good faith for an artistic purpose?

It is unlikely that this legislation will have any major affect on the freedom of creative expression because of the difficulties faced in proving that the act was done because of the race or characteristic of the person or group, and because the terms ‘reasonably and in good faith’ and ‘artistic purpose’ are likely to be interpreted broadly in the favour of artists: Bryl & Kovacevic v Louis Nowra & Melbourne Theatre Company (Unreported, HREOC, Peter Johnson (Inquiry Commissioner), 21 June 1999, H97/161). However, these provisions remain relatively untested and it is certainly possible that an artistic work could be rendered unlawful by the operation of the various legislative provisions.

e. Further Reading

J Bakan, Just Words, Toronto: University of Toronto Press (1997).

D Browne, ‘The curtain falls on-line’ (1999) 4(2) Artlines 9.

M Clayton & T Borgeest, ‘Free speech and censorship after the Rabelais case’ (1998) 3 Media and Arts Law Review 194.

B Cossman, S Bell, L Gotell, & BL Ross, Bad Attitude/s on Trial: Pornography, Feminism and the Butler Decision, Toronto: University of Toronto Press (1997).

C Douzinas & L Nead (eds), Law and the Image, University of Chicago Press (1999).

L Edwards & C Waelde (eds), Law and the Internet: Regulating Cyberspace, Oxford: Hart Publishers (1997).

S Edwards, ‘On the contemporary application of the Obscene Publications Act 1959’ [1998] Criminal Law Review 843.

J Eisenberg, ‘In cyberspace, everyone can hear you scream: Internet defamation for beginners’ (1996) 1(4) Artlines 1.

S Fish, There’s No Such Thing as Free Speech, and it’s a Good Thing Too Oxford University Press (1994).

H Foerstel, Free Expression and Censorship in America: An Encyclopedia Westport, Connecticut: Greenwood Press (1997).

J Fleming, The Law of Torts (9th Edition) Sydney: LBC Information Services (1998).

M Hamilton, ‘Art speech’ (1996) 49 Vanderbilt Law Review 73.

B Harris, ‘Should blasphemy be a crime? The Piss Christ case and freedom of expression (1998) 22 Melbourne University Law Review 217 (Case Note: Pell v Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391).

Hon Justice P Heerey, ‘The bite bit – literary criticism and the law of defamation’ (1992) 11 University of Tasmania Law Review 17.

N Hore, ‘Censor and be damned’ (1996) 1(5) Artlines 14.

L Kaplan, The Culture of Slander in Early Modern England, Cambridge: Cambridge University Press (1997).

P Kearns, The Legal Concept of Art, Oxford: Hart Publishing (1998).

A Kenyon, ‘Defamation, artistic criticism and fair comment’ (1996) 18(2) Sydney Law Review 193.

A Kenyon, ‘Problems with defamation damages?’ (1998) 24(1) Monash Law Review 70.

L McNamara & T Solomon, ‘The Commonwealth Racial Hatred Act 1995: Achievement or disappointment?’ (1996) 18 Adelaide Law Review 259.

C Manchester, ‘Obscenity, pornography & art’ (1999) 4(2) Media and Arts Law Review 65.

R Mortensen, ‘Blasphemy in a secular state: A pardonable sin?” (1994) 17 University of NSW Law Journal 409.

R O’Neill, ‘Free Speech on the Internet: Beyond “Indecency”’ (1998) 38 Jurimetrics 617.

C F Stychin, ‘A “timid esthetic”?: Performance art in the United States Supreme Court’ (1999) 4 Media and Arts Law Review 4.

Hon D Williams, ‘From censorship to classification’ (1997) 4(4) E Law – Murdoch University Electronic Journal of Law.

Endnotes

[1] In this chapter the material on defamation is written by Richard Potter, barrister, Lower Ground, Wentworth Chambers. Richard is a specialist in defamation law. Shane Simpson wrote the rest of the material.

[2] Prohibiting racial vilification and homosexual vilification. In the United States such instances also include desecration of the flag and blasphemy.

[3] Except Victoria and the ACT.

[4] See Brown v Classification Review Board (1998) 154 ALR 67 at 76–77 for a discussion of the common law’s limited protection of freedom of expression in Australia.

[5] The High Court of Australia has developed a limited constitutional right to ‘free speech’ (see discussion below), but this too can be overridden by the legislature in certain circumstances. Similarly in the United States it can be misleading to imagine that the Constitutionally protected right to free speech is an unlimited right, the protection is broader than that provided in Australia but it is not boundless. For a discussion of the protection of speech in the United States, see, for example, S Fish, There’s No Such Thing as Free Speech, and it’s a Good Thing Too, Oxford University Press (1994) and H Foerstel, Free Expression and Censorship in America: An Encyclopedia, Westport, Connecticut: Greenwood Press (1997). In relation to the protection of speech under the newer, Canadian Charter of Rights and Freedoms, see J Bakan, Just Words, Toronto:University of Toronto Press (1997).

[6] Paul IV and Pius IV added draperies and still more draperies, Pius V had some of the figures repainted and Clement VIII wanted to destroy the whole damned thing. See Anthony Blunt, Artistic Theory in Italy 1450–1600, (1940), pp 118–119.

[7] See Hon. Daryl Williams, ‘From censorship to classification’ (1997) 4(4) E Law – Murdoch University Electronic Journal of Law, <www.murdoch.edu.au/elaw/issues/v4n4/will441.html>.

[8] The introduction of legislation to ‘classify’ internet content was consistently portrayed as a necessary protective measure undertaken to shield children from exposure to pornographic or offensive material in their homes. See: ‘Legislation introduced to protect children online’, media release, Senator Richard Alston, Minister for Communications, Information Technology and the Arts, 21 April 1999.

[9] See Kearns, The Legal Concept of Art, Oxford: Hart Publishing (1998) at p 37. This exhibition continued to provoke heated reactions outside of England. In 1999 it toured to New York and was exhibited at the Brooklyn Museum of Art. While in England it was the portrait of Myra Hindley that provoked the strongest reaction, in New York it was the work depicting a Black Virgin Mary daubed with cow dung that was at the centre of the controversy. The mayor of New York at the time threatened to withdraw the Museum’s funding if it exhibited the works. The Museum retaliated by applying for an injunction restraining the Mayor from withholding the City’s funding for the institution.

[10] The show was covered extensively in the press but a useful overview is at: <http://en.wikipedia.org/wiki/Sensation_(exhibition)>.

[11] Quite how a collection of works owned by Charles Saatchi would not have been seen as ‘close to the market’ from the outset might be considered a ‘bit of an oops’. Given that the show would have been funded by a conservative commonwealth government, the director of the NGA, Brian Kennedy, must have felt as though he was channelling one of the works – the Damien Hirst shark suspended in formaldehyde, appropriately entitled, The Physical Impossibility of Death in the Mind of Someone Living.

[12] The conservator obeyed the order but used a patching technique that allowed the painting to be restored under a subsequent administration.

[13] The work is a photograph of a crucifix immersed in urine. One of the unusual aspects of this case is that it is the image combined with the title that gives rise to the potentially offensive nature of the work. See Pell v Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391.

[14] See Herbert N Foerstel, Free Expression and Censorship in America: An Encyclopaedia, Westport, Connecticut: Greenwood Press (1997).

[15] By contrast, at another MCA – that of Chicago – the Mapplethorpe show entitled Robert Mapplethorpe: The Perfect Moment drew that museum’s highest attendance figures, without a whisper of controversy.

[16] Stephen, Digest of the Criminal Law, 3rd edn, London (1883), p 116.

[17] Publication is not to be given its colloquial meaning. It is used in its legal sense, to mean ‘communication to another person’. For example, an artwork would be published if it were merely shown to a prospective purchaser. Mere possession of the work would not be sufficient, for it is its ‘publication’ not its possession that is subject to sanction: see Dugdale v R (1853) 1 E & B 435; 118 ER 499.

[18] It has been a matter of considerable legal debate whether or not the prosecution has to prove that the publisher of the obscene work actually intended to deprave or corrupt the viewers. The better view appears to be that the offence of obscene libel is not one of strict liability, and that the prosecution does have to prove the criminal intention, namely an intention to deprave and corrupt. Given this, it is clearly difficult for the prosecution to prove that an accused person actually intended to ‘deprave and corrupt’. This problem used to be surmounted by reliance on the legal presumption that ‘one intends the natural consequences of one’s act’. This is no easy matter, and is perhaps a further explanation why cases of obscene libel are now very rare.

[19] See Pell v Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391; Ogle v Strickland (1987) 71 ALR 41 at 52 (a case about the classification of the film, Hail Mary); and Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 271. The common law of England continues to recognise the publication of a blasphemous libel as a criminal offence: see Whitehouse v Lemon [1979] AC 617 (concerning the publication of a homoerotic poem in the British newspaper Gay News) and Choudhury v United Kingdom (1991) HRLJ 172 (concerning the publication of Salman Rushdie’s Satantic Verses).

[20] [1990] 2 QB 619.

[21] Kearns at 29. Obscene libel was abolished in England in 1959, see the Obscene Publications Act 1959, s 2(4), but as this case shows, other common law offences endure.

[22] (1868) LR 3 QB 360 at 371.

[23] Crowe v Graham (1967) 121 CLR 375 at 392.

[24] [1952] 2 All ER 683.

[25] [1973] AC 435.

[26] St John-Stevas, Obscenity and the Law, London: Secker & Warburg (1956).

[27] (1967) 121 CLR 375 at 396.

[28] R v Close [1948] V.L.R. 445 at 465.

[29] R v Close above at 463–465.

[30] McGavan v Langmuir 1931 SC (J) 10 at 15.

[31] See Clarkson v McCarthy [1917] NZLR 624.

[32] The Obscenity Laws, A Report of the Working Party of the Arts Council of Great Britain, Andre Deutsch, (1969).

[33] St John-Stevas, Obscenity and the Law, London: Secker & Warburg (1956).

[34] This Act was accompanied by complementary State and Territory legislation that provides for the enforcement of the provisions of the Act.

[35] See s 233BAB of the Act and Regulation 4A of the Customs (Prohibited Imports) Regulations 1956 (Cth). Note that these Regulations use an ‘objectionable goods’ definition.

[36] See ss 471.16–471.23.

[37] Section 474.19.

[38] Section 474.22(2).

[39] See R v Stanley [1965] 2 QB 327; Crowe v Graham (1967) 121 CLR 375 at 390–394.

[40] Criminal Code Act 1899 (Qld), s.228.

[41] Above, para 20.

[42]  [1973] Qd R 25.

[43] (1973) 3 DCR (NSW) 115 at 123–124.

[44] [1998] 2 VR 391; see Bede Harris, ‘Should blasphemy be a crime? The Piss Christ case and freedom of expression (1998) 22 Melbourne University Law Review 217 (Case Note: Pell v Council of Trustees of the National Gallery of Victoria).

[45] (1994) 75 A Crim R 480. The report of this case includes considerable discussion of the Australian authorities, noting the relevance of drawing a distinction between the concepts of obscenity and indecency, expressing disquiet that the legislation seems to regard the concepts as interchangeable and that this could lead to an ‘undesirable level of censorship’.

[46] In Hennessy v Lee [1973] WAR 127 at 129–130, the expert witness said of the artwork: ‘it was pretty, of good design, well balanced and rhythmical. The colour was pleasing, very skilfully executed. It was a good piece of commercial art.’ This was not sufficient to establish that it was of artistic merit.

[47] R v Manson & Stamenkovic, Unreported, NSW CCA, 17 February 1993, Nos 60773/91 & 60821/91, per Gleeson CJ.

[48] This case is discussed in Manchester, ‘Obscenity, pornography and art’ 4(2) Media and Arts Law Review 65 at 78,and apparently led to the establishing of the Censorship Advisory Committee under the Censorship Act 1996 (WA).

[49] The Commonwealth offence presumably related to publishing an indecent article on the Internet. For consideration of what ‘offensive’ and ‘sexual pose’ mean, refer to R v Alexandro Silva [2009] ACTSC 108.

[50] L Kennedy, ‘Henson show charges’ SMH, May 23, 2008.

[51] Section 91G(2) Crimes Act 1900 (NSW).

[52] Section 91 G(3).

[53] And thus the author avoided making mention of the former Prime Minister who was able to be disgusted on morning TV without an opportunity to view the exhibition and the NSW Premier who was then in China but who was similarly disgusted. One might assume that both would be found to be reasonable persons.

[54] Section 4(c).

[55] Section 578(2).

[56] See the very useful Report of the Child, Pornography Working Party, Dept of Justice and AG (NSW) (2010) upon which the reforms were based: <www.lawlink.nsw.gov.au/…Child_Pornography_Working…/Final_Child_Pornography_Working_Party_Report_8Jan.pdf>.

[57] It abolished the old definition of child pornography: that is material that depicts or describes … a child: ‘(a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)’, in a manner that would in all the circumstances cause offence to reasonable person.

[58] NSW Bills Explanatory Notes: <www.austlii.edu.au/au/legis/nsw/bill_en/capaamb2010475/capaamb2010475.html>.

[59] Section 91HA; Classification is under the Classification (Publications, Films and Computer Games) Act 1995 (Cth).

[60] Part 10.6 of the Criminal Code 1995 (Cth), s 474.17.

[61] As above, s 473.4.

[62] Certainly being a public institution should meet the standard.

[63] Clause I of the Code states:

Classification decisions are to give effect, as far as possible, to the following principles:

(a)        adults should be able to read, hear and see what they want;

(b)        minors should be protected from material likely to harm or disturb them;

(c)         everyone should be protected from exposure to unsolicited material that they find offensive;

(d)        the need to take account of community concerns about:

(i)         depictions that condone or incite violence, particularly sexual violence; and

(ii)         the portrayal of persons in a demeaning manner.

[64] Classification (Publications, Films and Computer Games) Act 1995 (Cth).

[65] Section 578C Crimes Act 1900 (NSW).

[66] The Rabelais case involved a student publication that contained an political article, ‘The art of shoplifting’ that allegedly promoted illegal activity. The publication was refused classification. See Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67; M Clayton & T Borgeest, ‘Free speech and censorship after the Rabelais case’ (1998) 3 Media and Arts Law Review 194.

[67] Section 11 Classification (Publications, Films and Computer Games) Act 1995 (Cth).

[68] Critics of classification decisions point out that the material that is refused classification is often that which is aimed at audiences outside the ‘mainstream’ and can operate in a discriminatory fashion. See Queer Screen Ltd v The Chief Censor, Unreported, FC of A, Lindgren J, 23 February 1995; cf Bad Attitude/s decision in R v Butler [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449 (Canada).

[69] Wilson & White (eds), ‘Panic: Media, morality, culture’ (1997) 85 Media International Australia.

[70] A Philips, ‘How not to be offensive online’ (1998) 144 Communications Update 20.

[71] See <www.acma.gov.au/WEB/STANDARD/pc=PC_90156>.

[72] The Defamation material is written by Richard Potter, barrister, Lower Ground, Wentworth Chambers. Richard is a specialist in defamation law.

[73] Hyer v Lindholdt [2007] NSWSC 795.

[74] Atrill v Christie [2007] NSWSC 1386.

[75] Arthur Dent  v  Macquarie Radio Network Pty Ltd [2006] NSWSC 186.

[76] Moumoutzakis v Caprino [2008] NSWDC 168.

[77] Hustler Magazine v Falwell (1988) 485 US 46.

[78] Donogue v Hayes (1831) Exch 265.

[79] Falkenberg v Nationwide News Pty Ltd Unreported (16 December 1994) (NSW).

[80] Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd [1986] Aust Torts Reports 80 – 002.

[81] District Ct (NSW), Unreported, 28 September 1993.

[82] Channel Seven v Manock (2007) 232 CLR 245.

[83] Section 8.

[84] Racial Discrimination Act 1975 (Cth), s 18C – unlawful behaviour, s 18D – exemptions; Anti-Discrimination Act 1977 (NSW), s 20C – Racial Vilification, s 38S – transgender vilification, s49ZT – homosexual vilification, s 49ZXB – HIV/AIDS vilification unlawful; Discrimination Act 1981 (ACT), s 66 –vilification in relation to race, sexuality, gender identity or HIV/AIDS); Civil Liability Act 1936 (SA) s73 – racial victimisation and the Racial Vilification Act 1996 (SA).

[85] Anti-Discrimination Act 1977 (NSW) s 20C(1).

[86] Racial Discrimination Act 1975 (Cth), s 18C(1).

To the modern collection, those working in collection management are no more or less important than those who work as curators. Both are essential. For the institution to operate with maximum effectiveness, each must understand and respect the needs of the other, for neither are there to serve their own interests. The responsibility of every staff member is to the public purposes of both the collection and the institution.

This is a book about the legal issues that arise in the daily life of a collecting institution. Although its subject may be expected to be dry, it is written for the professionals working within collecting institutions. If ‘dry’ means that there aren’t many car chases, it is dry. However there are lots of intellectual labyrinths that you will find fascinating. If I am right, there will be many sections that will make you think, ‘Ah, that’s how that works’ or “So that’s how it can be done!’

This book is a personal approach. It is a result of many years working for collecting institutions and seeing the difficulties that arise and noting how those problems can be resolved, or even better, avoided in the first place. Some readers will disagree with some of my comments. That is as it should be. Experiences differ and the evaluation of experiences is a subjective affair. I hope that through the way that the project has been developed, these differences will work to enrich and improve the book.

The project started when, some years ago, I proposed the project to the National Museum of Australia. It was greeted with great enthusiasm and support, but politics and people changed. Then the Collections Council of Australia became the publisher and it was during this period that the project took its current shape. With the closing of the CCA, the Powerhouse Museum has agreed to support, publish and maintain the work. It is about to move to a new home.

It is important to appreciate that Collections Law has placed its roots strongly in the collection community. While I devised the table of contents, those subject areas were debated within and approved by the both the National Museum and later, the Collections Council of Australia. Each area has a number of experts from the profession who have volunteered to read drafts and make comments. These experts have been an extraordinary resource for it is their experience and skill that ensures that the material is professionally accurate and relevant.

The experts give me their comments; I take them in (or not) and then, after copyediting, a discussion draft is put on the website. At this stage the material is available to all – both for use and for comment. The design of the website allows users to either download a PDF file of each chapter or to view the chapter online and make comments. This is not a blog. Those who comment should not expect to be engaging in debate; it is just a further opportunity for readers to ask for clarification, give examples and generally improve the usefulness of the book.

In some chapters, I have invited an expert to be the author or co-author. These are subjects on which I do not have sufficient experience, to thunder and pontificate.

When all of the chapters are complete it is intended that the book be published in paper form. It may remain a digital creature. That decision is not wholly mine.

So much for process. Now a last word about purpose. Collecting institutions are unusual in that they own and administer assets worth many millions of dollars. Yet they do so without the support of much legal expertise. Smaller organisations rely on the generous support of volunteer lawyers from their local community. The large state and federal institutions have access to their government legal services. A few institutions now have in-house lawyers and that is an excellent and recent development. In general, very few collecting organisations have ready access to lawyers who are experienced in collections law or the collections environment. When I was a student, a lawyer told me that the need for specialisation was a deceit: ”Just tell me the facts and I’ll tell you the Law!” Those days, like that lawyer, are gone. The collections world is a very specialised environment in which very sector-specific legal issues arise. Yes, the issues are all tackled by the application of general legal principles but prudent legal problem-solving demands knowledge of the practices, standards, expectations and limitations of the sector. Still, I hope that this book will also be useful to your advisors so that they can work more effectively with you.

Remember, the most lucrative client is the ‘bush-lawyer’. The best client is an informed one who doesn’t pretend that they know it all.

The purpose of this book is to give you information so that you can do what you do, better. Don’t think of the Law as seeking to inhibit, restrict or forbid. Look at it as enabling. It is my hope that this book will provide you with knowledge and understanding as to the legal tools that you can bring to enhance your own performance and, in so doing, promote the public benefits that flow from vibrant and effective collections.

Shane Simpson

September 2010

10.1 Introduction

Digital technology now makes it possible for all types of information (including images and sounds) to be reduced to a complex and easily transmittable pattern of ones and zeros. Application software that achieves this is both available and cheap.

Combined with the right equipment, complete interactivity is possible – that is, one is now able to de-materialise (up-load), access, view or listen to and download that image or information. Once downloaded, this material may be reproduced perfectly in its original form – that is, perfect quality reproductions.

In addition, digital technology provides a simple and seamless method of manipulating those digitised images and materials – by adding material to them, by simply sampling specific parts of them and incorporating those parts into new images or in combination with samples from other original artworks, or by simply re-arranging or cropping the subject matter of the image itself. All things are possible – and with great speed and quality.

In other words this same technology also permits:

1. the extraction or sample of certain parts of the material;

2. the manipulation or adding to the material or parts of it; and

3. the seamless integration of any sampled parts of the original material.

The technology continues to develop quickly. Both the public and most collecting institutions have become active users.. Collecting institutions have become important creators, providers and distributors of digital content and their digitisation programs have become a core tool in the granting of access to their collections. The institutions are able to make a vast range of material accessible for viewing at any one time – unlimited by the amount of physical exhibition space available. Similarly, the digitised collection material can be used to enhance the experience and the value of an individual exhibition for it can be used to present additional educational materials or allow public visitors to ‘browse’ through the other works related to the exhibition not actually exhibited due to lack of exhibition space.

With digitisation, the collection material and its associated educational and merchandising products become dissociated from the physical museum and its geographical location. Digitisation is not just a technological issue. It is that. But it is also a financial, legal, administrative and philosophical issue.

10.2 What are digital rights?

The law does not have a particular category of rights called ‘digital rights’. They are merely an application of the usual rights of copyright, applied in a specific technological medium.[1] In practice, however, digital rights include:

· the right to reproduce material in digital form;

· the right to store and archive in a data base;

· the right to permit the public to access and retrieve on a computer monitor;

· the right to transmit, distribute or otherwise make available (whether via Internet, Intranet or CD-ROM).

Technology permits all of this. Whether one is authorised to do it is another matter. Essentially, there are two core elements to the right to digitise.

1. Do you have the right of access to the item? Without access to the item, the ability to digitise the original is limited. You do not have to own it: mere possession (for example, as a borrower) will do.

2. What is the copyright status of the item? This is no hurdle where the material is not the kind of material in which copyright subsists, or is so old that copyright either never subsisted in it,[2] or has expired. If there is no copyright, the only issue is access. Similarly, if the institution owns the copyright outright, it also has the digital rights. However, where the institution has only been granted limited rights of copyright, it may or may not have the digital rights. This usually depends on the wording of the documentation.

The warning for museums is that they must review all copyright licences obtained in the pre-digital era for they are very likely to be inadequate for use in digital format or environment.

10.3 Digital rights management

Modern collecting organisations are in the business of rights management. The ability to manage this new ‘resource’ or ‘asset’ is of growing importance and requires a sound knowledge and understanding of:

· the technology;

· the material held in the collection;

· the purpose for which digitisation is undertaken;

· the extent of the rights enjoyed by the museum;

· the ability to clearly identify the digital object; and

· the business principles.

Design of the database

This is not just a new distribution system. It is also a new access system. If you are going to give clients access through the Internet to your databases, you will have to review your existing protocols.

In setting up any such database, you should never lose sight of the following fundamental questions.

1. What level of access do you want to provide to third parties?

2. What use do you want them to be able to make of the data obtained from this access?

3. What design factors need to be built into the data base to promote your aims and minimise the attendant dangers?

4. What hardware and software systems can be built in?

Digital Object Identification

It is crucially important that the owner of the digital object that is to be used or licensed is able to precisely identify the digital object. It must also be able to attach digital information to that object so that the digital object carries with it, as part of its very being, information that identifies the owner of the rights in it and the terms upon which it can be used or traded. One example of such systems is called the Digital Object Identifier (DOI). It is like an invisible, digital barcode. It is a hugely important development for it will be part of the mosaic of enablers that will allow digital rights to be identified, described, communicated, traded and audited. Each digital object will have its own DOI Material that is made up of an assemblage of works (such as a page of a text book that contains several licensed paragraphs of text and various charts, illustrations and photographs) will have a DOI for each of its constituent parts and for the page itself. The bonus of DOI is that it allows a great degree of ‘granularity’: you can license the book, the chapter, the page, the paragraph, the sentence – provided each has its own DOI.[3]

It is important to note that DOI is just one if the available systems that provide this functionality. For example the National Library of Australia devised its own scheme of Persistent Identifiers.[4]

Maintenance and training

When you go digital the administration doubles. Now you must also know:

• what material you have in your digital library;
• where to find it;
• which rights you have to that material, and
• how you can exploit the digital material.

The planning of this information architecture so that it is easy to navigate and retrieve is essential to efficient digitisation. It is often forgotten that many of the apparent cost savings in digitising collection material is eaten up with the additional costs of administering the new resource. One of those costs is the on-going training for employees – both those who establish and maintain the digital repository and those who need to use it.

Planning

It is of fundamental importance to plan early and to implement effective and easily maintained rights management systems for material that might be or is to be digitised.

Getting the right information at time of accession

At the very least, accurate cataloguing and records will be crucial. These must include details of:

· creator’s name

· circumstances of creation (commissioned, employee etc)

· copyright status

· whether it has been published (in the copyright sense) and where

· copyright owner

· rights/licences acquired by the museum

· whether there is any licensee or agent from whom copyright permissions have to be obtained[5]

· duration or term of those licences

· any specific restrictions on use or access

· renewal dates or triggers for extending term of licence(s)

· licence fees or royalties (if any) payable

when (eg quarterly/half-yearly)?

to whom?

by whom?

We are used to these requirements in an atom-based environment. Most collections now routinely maintain such records. Those that don’t capture this essential information when accessioning material are falling far short of professional best practice: not only are they exposing their institution to legal liability, they are restricting the use that the collecting institution will forever be able to make of the accessioned item.

10.4 How to acquire digital rights

If it is necessary[6], there are two ways toacquire a licence of digital rights:

· identify the rights owner and obtain a direct licence; or

· get a licence from one of the collecting societies that represent digital rights owners.

For example, if the work is literary, the first stop would be the Copyright Agency Limited (CAL);[7] for fine art, Viscopy;[8] for artistic works such as plans, diagrams and illustrations, CAL; for audio-visual material such as films and television programs, Screenrights;[9] for compositions, APRA/AMCOS;[10] for sound recordings, it will either be PPCA[11] or the individual record company owners.

Where you are seeking to license collective or multi-media works such as a website (which may contain thousands of individual pieces of copyright material in various media) there is no single collecting society or joint venture of collecting societies that can assist. Unless the museum is unable to rely on a ‘fair-dealing’ or ‘library and archive’ provision of the Copyright Act 1968 (Cth), the process is going to be long and painstaking. Each piece of material will need to be broken down into its component parts; each component will need to be described, each owner will need to be identified, the extent of their rights determined, the licence sought, the purpose of the licence explained, and, after all that, the licence granted (or refused). Then the licence and its details must be recorded and administered. This process must be meticulously repeated for each copyright component. And now for the good news.

10.5 Orphan works

Orphan works are works that are still in copyright but the copyright owner cannot be found.[12] This is a particularly difficult problem with some collection material (such as manuscripts) where the copyright period does not start running until the work has been ‘published’. For example, say you have in the collection, a diary written in 1910 in The Kimberley. You know the name of the author but can find no other information on her. You have no idea as to who her heirs were. In some cases, the information could possibly be uncovered – but only at the cost of an amount of time and resources that would make seeking a licence completely impractical. In others, no matter how much you expended, you couldn’t unearth the identity of the current owner of the rights.

Many collections have large holdings of orphan works and all want to be able to digitise and reproduce this material. After all, not knowing the identity of the rights owner does not affect the importance of the material.

Management has three choices:

1. do nothing with it;

2. use the material in accordance with a risk management strategy;

3. use the material relying on s 200AD of the Copyright Act 1968 (Cth).

The first option is undoubtedly the safest – but at what cost? You have saved the organisation any danger of having to pay legal costs and damages but in doing so have lost the opportunity to further the public interest aims of the collection.

The second option is commonly (and sensibly) used in Australian collecting organisations. For example, the National Library digitised all sheet music published prior to 1940, except where there was known to be an active musical estate.[13] This approach enabled the digitisation of some 40 000 items for the National Library’s well-known and highly used Music Australia service. Despite getting something like two million page views per annum, no copyright owner has emerged with a complaint of unauthorised breach of copyright through the Library having digitised its sheet music collections. (If they did, the Library would immediately take down the material in question, while it negotiated an agreement with the claimant.) Had the Library not taken this approach, it would have digitised very little of this material, and expended a huge amount of staff resource in the probably fruitless search for copyright owners who might be approached for permission for digitisation. The risks with this material were low: The works were old catalogue; they did not involve active estates; if there is a claim the material will be readily removed until the claim is sorted; and the potential financial liability for breach of copyright is minuscule.

The third option is to rely on s 200 AB of the Copyright Act 1968 (Cth).

10.6 Section 200AB

Because of the particular difficulties faced by collecting organisations in clearing rights, an important amendment has been made to the Copyright Act 1968 (Cth). Section 200AB is extremely useful and much under-utilised. While it is dealt with in detail in the copyright chapter of this book, it is worth noting that the library, museum, public gallery or archive is able to digitise its collection material if it can show that the use:

· does not conflict with a normal exploitation of the material by its owner; and

· does not unreasonably prejudice the legitimate interests of the owner of the copyright; and

· is made by or on behalf of the body administering a library or archive; and

· is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and

· is not made partly for the purpose of the body obtaining a commercial advantage or profit.

This is the provision that allows collecting organisations to digitise their collections for the purposes of conservation, storage and archive, ease of access and retrieval, and even education programs – both internal and external. It is the provision that permits the collection to display digital copies of its holdings on its website.

Each of the conditions must be fulfilled. Consequently, it is important to consider the desired use against each of the requirements. For example, because of the requirement that the reproduction does not conflict with the normal exploitation of the rights by the owner, it is important the that reproduction put on the website is of low resolution; people wanting to use the image commercially will need a high resolution image and will not be able to use the web version for their commercial purpose. They will need to go back to the rights owner and obtain a licence in the normal way.

10.7 How to realise the potential of your digital rights

Where you own the digital rights, you do not maximise their value merely by selling them to Mr Gates. You must make the new media an integral part of the delivery of museum services. Digitisation provides another means of delivering the museum experience and services to your public. At the very least, it creates new messaging channels that will reach new ‘customers’. As such, it can be an effective and cost-effective tool to increase public awareness of your museum and your collections – especially to the younger members of the public (for they are very active users of this technology). This in turn has the potential of leading to:

· membership increase

· visitors increase

· business and commercial opportunities

· educational opportunities

The challenge is not merely how to embrace the technology. Rather, it is how to use this communication medium to further the public interest purposes and policies of the museum.[14]

10.8 Further reading

Reference should be made to the materials made available at the AMOL site on Digital Collections Standards[15] and the excellent paper delivered by Dr Timothy Hart entitled ‘Digitisation: An Australian Museums’ Perspective’, Collections Council of Australia, Digital Collections Summit, 17 August 2006.

[2] For example, where the material came into existence prior to the copyright laws.

[3] For further information contact the Copyright Agency Limited, which was the first DOI registry in Australia.

[4] See <http://nla.gov.au/initiatives/persistence.html>.

[5] For example, Viscopy, CAL.

[6] See discussion of s 200AD of the Copyright Act 1968 (Cth) at Chapter 10.6.

[7] <http://www.copyright.com.au>.

[8] <http://www.viscopy.com>.

[9] <http://www.avcs.com.au>.

[10] <http://www.apra.com.au/Licence/LicIntro.htm>.

[11] <http://ppca.com.au>.

[12] For information about the way that various countries are dealing with the problems arising from orphan works, see the Australian Copyright Council article at <http://www.copyright.org.au/information/specialinterest/g101.htm>.

[13] Such as that of the composer Jack O’Hagan, who was particularly active in the early decades of the twentieth century, but only died in 1987. Where the estate is active, the works are not ‘orphan works’ because the rights owners are easily identified.

[14] Later in this book, there will be an extensive discussion of licensing your collection material.

[15] <http://sector.amol.org.au/reference/standards_and_guidelines/digital_collections_standards>.

Introduction

Customs is an integral part of the process of international lending, borrowing, and acquiring museum collections. The Australian Customs Service (ACS) collects the duty and tax on all goods imported into Australia. Fortunately some, or all, of these costs can be waived if the material is being imported for temporary exhibition or being acquired for a public collection.[1]

Overall the collections sector has a broad range of interactions with the ACS. For these to be effective, three things are essential:

• a good understanding of the institution’s regulatory obligations under the Customs Act 1901 and the Customs Tariff Act 1995; and
• the maintenance of good record keeping systems; and
• conduct regular checks of import activity on order to retain a high degree of Customs compliance.

The ability to import material temporarily, exempt from tax and duty, is an important provision in customs law for collecting institutions. Without it, the substantial amounts of tax and duty applicable on cultural material would inhibit the ability of most, if not all, institutions to borrow from international collections.

When a public collecting institution acquires collection material from an international source, generally, there is no import duty payable (although GST must be paid ).[2] To achieve this, particular care must be paid to the tariff line stated in the Customs Declaration. ‘Tariff lines’ are the internationally recognised categorisation system that defines every type of product and its applicable duty and tax. This duty exemption is a significant aspect of customs law that enables the purchase of international material by public collections without incurring prohibitively high expenses at the time of import.

It is important to remember that collecting institutions also import material that does attract duty and tax. Many departments import machinery and equipment, published material, retail stock and other goods on which tax and duty must be paid. Again, the tariff class into which the material is entered, determines the amount of duty payable.

The Customs Act 1901

The Customs Act 1901 is the key piece of legislation that governs the import and export of material to and from Australia. This legislation is substantial, covering every type of import and export scenario, so it is unrealistic for museum staff who occasionally delve into importation to be fully conversant with this legislation in its entirety.

A useful reference is the Australian Customs Documentary Import Declaration Comprehensive Guide and Information for Exporters. It is available online.[3]

The Customs Tariff Act 1995

The Customs Tariff Act 1995 defines tariff lines and determines rates of duty. The Schedules to the Act are enormous, listing and categorising every type of product into a tariff line. The tariffs change regularly due to the availability of new products so it is fortunate that the full working tariff is available online[4].

Importing

Types of Customs entries

The Australian Customs Services treats items differently depending on the purpose that they are brought into Australia. There are two main types of customs entry that collecting institutions usually use:

• Home consumption

For Customs purposes, an item that is purchased or gifted from an international source and that will permanently stay in Australia once imported, is entering the country for ‘home consumption’.[5] Items that typically fall into this category include acquisitions and gifts for permanent collections, machinery and equipment, and stock for retail outlets.

• Event Status

Event Status is a special provision that allows items to be brought into Australia free of duty and tax for a temporary event.[6] This is used both for the temporary exhibition of material borrowed from an overseas source, and for some collection development loans that are used for short-term research and display.[7]

Customs brokerage

As the owner or borrower of items that are imported from overseas, an institution will need to engage a licensed customs broker to act on its behalf. A customs broker will prepare and lodge a Customs Import Declaration, which involves providing the Australian Customs Service (ACS) with the relevant information to determine any applicable tax and duty payable and to make an assessment of border security risks. It is also used to provide information to the Australian Bureau of Statistics on trade activity.

Many collecting institutions may not have a direct relationship with customs brokers as it is usual practice to employ a freight forwarding company that offers a complete freight and customs service. There are two types of freight forwarders offering these services:

• companies, such as Fedex, who have licensed brokers on staff to carry out the Customs reporting for the material that they transport; and
• companies that subcontract the brokering function to a third party, a specialist customs broker.

The institution is ultimately responsible to the ACS for the information that is declared to Customs, so it is important that the staff involved in the importation of any goods from overseas have enough knowledge of Customs legislation to provide the correct information to their broker, and so that they can check the accuracy of the information that their broker is declaring to Customs. Such checks are important and must be made regularly.

Information declared to Customs

The key information required by a customs broker to complete a Customs Import Declaration is as follows in this table.

Other specific information such as the owner’s contact details, the delivery address, the importer’s ABN, and particular technical details relating to specific types of shipments will also be required. A full list of all the fields on an Import Declaration is listed in the Australian Customs Documentary Import Declaration Comprehensive Guide.

Documentation

Museums need to keep clear documentation of their Customs activity in a form that can be easily retrieved for auditing purposes. Customs runs a rigorous compliance program and can audit organisations at least every five years. Key documentation should be retained for a minimum of seven years. It includes:

• Copy of the Customs Importation Declaration;
• Invoice for goods being purchased (or Pro forma Invoice for material that is being borrowed);
• Airway Bill or Bill of Lading;
• Any contracts or correspondence detailing the terms of the purchase or loan (particularly those clauses relating to who will pay for which aspects of the freight, packing, insurance and any applicable tax and duty);
• Proof of payment for the goods, freight, packing and insurance (invoices, bank statements & remittance receipts);
• Any Illustrative Descriptive Material used to determine tariff class, and any written proof of origin of goods (this may include curatorial statements and publications);
• In the case of material brought in with special provisions such as Event Status, copies of the applications and approvals.

The ACS requires that all documentation must be in English otherwise a translation must be provided.

Museums should regularly check that the information that their broker has declared to Customs correctly matches the documentation relating to the transaction, and ask for amendments to be made if errors are found.

Event status

Section 162A of the Customs Act 1901 allows the temporary importation of material for museum exhibitions, free of import duty and GST. This is known as Event Status.

An application for Event Status is submitted to the ACS through a specialist freight agent or directly to the ACS. A single application can be made for an exhibition rather than individual applications for each shipment or item. The application form, covering letter and pro forma invoice that form part of the application must include specific information about the material being imported, including details of any material that is subject to Quarantine restriction, the value, any movement within Australia (if it is touring to several venues), and the timeframe for departure. It must be submitted a minimum of seven to ten days before the shipment arrives so that clearance can be secured in advance of the shipment arriving, therefore mitigating any Customs inspection at the airport.

While the loans are in Australia the material remains under the control of the ACS. It is important that the material is identifiable on import and export; that it must be re-exported within a 12-month period unless otherwise negotiated; and that the material can not be sold or further lent without the permission of the ACS. The key to a successful and straightforward relationship with the ACS is keeping it informed of all plans relating to the movement of the material well in advance.

The ACS grants Event Status subject to the following conditions:

Click HERE to view a PDF of the following information.

(a) The number or quantity of articles is reasonable, having regard to the purpose of the importation.

(b) A complete list of items (including means of transport) must be supplied to Customs prior to the commencement of the Event.

(c) A Form 46AA – Application for Permission to take delivery of Goods upon Giving a Security or an Undertaking for the Payment of Duty must be lodged with Customs for every shipment;

(d) All goods are subject to import and re-export inspections unless otherwise waived by Customs

(e) It is essential that all goods are identifiable on import and export, a short form copy of the import declaration MUST be forwarded to the events officer for each item imported under the event status;

(f) The goods must be re-exported within such period, not exceeding 12 months, after the date on which the goods were imported as is notified to the person who imported the goods by the Collector when he or she grants permission to take delivery of the goods (as specified on Form 46AA), or within such time as allowed by the CEO may decide;

(g) Goods that are intended for sale must be entered for home consumption prior to transfer to the exhibition;

(h) Goods that are included in the “event” list are not to be loaned, sold, pledged, mortgaged, hired, given away, exchanged or otherwise disposed of or altered in any way;

(i) Should it eventuate that some of the goods are to be sold, they must not be sold without prior permission from the Australian Customs Service in accordance with regulation 125B of the Customs Regulations 1926;

(j) Where permission has been given and some goods have been sold during the exhibition, then there must be duty and GST paid and released only at the conclusion of the “event”;

(k) Your attention is drawn to Regulation 125B of the Customs Regulations 1926:

Where goods are, in accordance with Section 162A of the Act, brought into Australia on a temporary basis without payment of duty, the person to whom the goods are delivered under that section shall not, except with the consent of the CEO, lend, sell, pledge, mortgage, hire, give away, exchange or otherwise dispose of or part with possession of the goods or

in any way alter the goods.

(l) Goods that are stolen during temporary admission are not entitled to

exemption from duty and GST.

(m) Small “give away” samples which are representative of foreign goods displayed, printed matter, catalogues, price lists, advertising posters etc, that are in accord with Article 5 of Annex B1 of the Convention, will be admitted duty free under Items 32A (By-Law 9640088), 32B (B/L9640098), 33A (B/L 9640093) and 33B (B/L 9640102).

Amending Event Status entries

Customs Import Declarations for material brought into Australia temporarily under Event Status cannot be amended once the Event Status has expired. Any amendments must be made while the material is in Australia.

Extending Event Status

As a standard rule, the ACS allows material to enter Australia for 12 months under Event Status after which time the material must be exported or an extension to the Event Status must be sought. The ACS will usually allow extensions to the Event Status as long as the request for an extension is made in advance of the Event Status expiring.

Acquitting Event Status

Collecting institutions must ensure that their Customs broker and/or freight agent acquits the Event Status once all of the material has been exported.

Acquiring material that has been imported under Event Status

If material brought in under Event Status is acquired during the duration of the loan or the Event Status period, the GST and any other applicable duties must be paid to the ACS. It is important to note that the GST payable is based on the amount declared on the original temporary import permit.

For example, if an item is brought into Australia using Event Status with a declared value of $10,000, and is subsequently purchased for $8,000, the GST will be based on the $10,000 declared at the time of import. It is also worth noting that if an item is gifted it still attracts GST based on the declared value at the time of import.

Issues to avoid with Event Status

Customs is a strictly administered process with clear guidelines that work as long as communication with Customs officials is kept open. Usually issues are encountered when the exit of the material from the country is not properly considered before the material is imported. Many scenarios may affect the planned exit of the material – a tour venue may be added to an exhibition, or the museum may decide to acquire the work through gift or purchase.

All too often, museum staff or lenders bring loan items into the country in their luggage without notifying Customs and gaining pre-clearance. This is not good practice. Not only are there obvious issues as the physical care of the material and possible inspection on arrival in the airport. It also has financial implications when the material is shipped back to the country of origin: Customs authorities in the country of origin will require tax and duty (as a percentage of the value) to be paid on re-entry of the material as they will have no record of the initial export.

Some material that may be imported for temporary exhibition may be retained on a long-term loan after an exhibition is complete. It is important to avoid setting up expectations with the lender that the loan is ‘permanent’ or ‘indefinite’ as Event Status requires that the item will be returned within the 12-month period. The ACS may extend the Event Status on a year-by-year basis, but this is discretionary and will not be extended indefinitely.

Destruction or loss of material under Event Status

There are no specific provisions in the Customs Act 1901 that deal with the total destruction or theft of goods brought into Australia under Event Status. As a result, the ACS deals with these situations on a case by case basis. In theory, an item that is stolen or destroyed is no longer in control of the ACS and thus, the tax and any applicable duty is payable. In practice, the ACS has discretionary powers and is unlikely to demand payment if the institution can prove that it carried out due diligence in protecting and caring for the Event Status goods.

Event status and touring exhibitions

With the increasing number of touring exhibitions that are all, or partially, borrowed from international sources, customs legislation affects the contractual arrangements between the organisation that originally applies for the Event Status and the venue that disperses the exhibition/item back to its country of origin.

Event Status can only be taken out by one institution. It cannot be jointly held by touring venues or transferred between touring venues. If the holder of the Event Status is not directly in control of the re-export, in its contract with the venue responsible for administering the re-export, it must pass on the obligation to properly acquit the Event Status obligations.

Sample agreement for acquittal of Event Status

The key aspects of this type of contract should include:

• The timeframe for re-export;
• The dispersing venue’s liability in relation to the terms of the temporary import permit, i.e not to sell or further lend the items;
• Clearly defined responsibility for liability and costs relating to the acquittal of Event Status;
• Clear jurisdiction and conflict clauses.

Example contract clauses for acquittal of Event Status

Click HERE to view a PDF of the following information.

This agreement (Agreement) is between the Fictitious Art Gallery (the Gallery) and the Fictitious Museum (Museum) in relation to art-work from the Fictitious Art Gallery exhibition (the Works) listed in Attachment A.

The Museum has an agreement with the Overseas Owner in New Zealand to exhibit the Works in Adelaide from 30 June to 24 September 2006.

The Gallery imported the Works for their own exhibition and was granted Event Status by the Australian Customs Service (ACS). The Event Status expires on 30 September 2006.

Both the Gallery and the Museum are of the understanding that if the Museum arranges for the Works to be exported to New Zealand by 30 September 2006 then no liability will be owed by the Museum to the ACS. The Museum acknowledges that if the Works are not exported to New Zealand by 30 September 2006 then the ACS is likely to impose taxes, fines and/or costs upon the Gallery.

The Museum hereby undertakes to the Gallery that it will export the Works to New Zealand by 30 September 2006, and that if for any reason (other than a reason caused by the Gallery) it fails to do so the Museum agrees to accept liability for any taxes, fines and/or costs imposed by ACS as a consequence of the Museum’s failure to export the Works by the specified date.

The Museum agrees:

• that it has entered into an agreement with the Overseas Owner and will provide a copy of the agreement confirming this arrangement to the Gallery by 21 April 2006;
• that it will cover all insurance, packing, and freight costs relating to the transfer of the Works from the Museum to the Overseas Owner ;
• that it will export the Works to Overseas Owner by no later than 30 September 2006;
• that if the Museum fails to export the Works by 30 September 2006, it will pay any taxes, fines and/or costs (based on the value of the Works specified in Attachment A) imposed by ACS as a consequence of that failure;
• that it will not sell, lend, mortgage, hire or deal with the Works in any way without the prior written consent of the Gallery;
• that it will comply with the terms of the Event Status as it relates to the Works.

This Agreement may be terminated by the Gallery if it becomes aware that the Museum has breached this Agreement or any of the terms of the Event Status in a material way, and in such an event, the Museum will upon instructions export the Works and pay all reasonable and legitimate fees, charges and taxes as applicable.

This Agreement is governed by the laws of …………………………… and both parties agree to submit to the jurisdiction of the Courts of that State.

Signed on behalf of the Museum:

Signed on behalf of the Gallery:

Acquisitions

Items of historical or cultural significance and original works of art acquired internationally by Australian institutions are exempt from customs duty – but still attract GST. Occasionally when assessing a duty exemption the ACS will ask for evidence of the significance of an item being imported, and the onus is on the importing museum to provide the necessary written documentation.

The most common method of customs entry for Australian institutions purchasing items internationally is to buy a work for ‘home consumption’ in the same way that would purchase anything from an international source and use the Australian Tax Office’s (ATO) deferred GST scheme that many institutions have in place.

To defer GST institutions must apply to the ATO to use the scheme, and once approved they provide their ABN to Customs through their specialist freight agent and/or customs broker. Customs then reports to the ATO on the import activity of the museum and the GST is reconciled through the museum’s monthly Business Activity Statement.

Exporting

Export Declarations

Exporting goods from Australia is more straightforward than importing into Australia because the onus is on the overseas buyer or borrower to fulfil the requirements of the Customs authority in their own country. That said, the overseas importer will rely on the Australian lender to provide the correct information on which to base their Customs Declaration.

For goods worth over AUD2000[11] an export must be declared to the ACS.[12] This can be completed manually by the owner/vendor but due to the technicality of much of the information it is preferable that it is completed electronically by a freight forwarder on behalf of the institution. In its most basic form the declaration states (but is not limited to):

• who is lodging the declaration (the owner or an agent);
• the intended date of export;
• whether the goods are currently under Customs control (most commonly for museums under Event Status);
• export type (one of three different codes);
• goods type (one of six different codes);
• port of loading;
• currency of the invoice;
• total of the Free on Board (FOB) value (value of the goods including all costs to get them to the port of loading including any export charges);
• currency of the FOB value.

In addition to this overall information about the consignment, further information must be provided about each of the item lines listed in the import which includes the goods description, origin, and value; their tariff classification; and information about their weight per unit and gross[13].

Export Documentation

Remember that the tariff classification and terms of trade rules apply internationally. The information you have to provide to the local authorities is the same information that will be required by an overseas buyer or borrower.[14] This key information needs to be conveyed to the buyer or borrower in a Commercial Invoice (for selling) or a Pro Forma Invoice (for lending). A commercial invoice or pro forma invoice should, at the very least, contain the following information:

• details of both the owner/vendor and buyer/borrower (and consignee if acting on behalf of the buyer);
• name of freight forwarder or agents responsible for the logistical arrangements;
• details of the vessel/aircraft and ports of loading and destination;
• description of the goods;
• quantity of goods, number of packages, weight of packages, gross weight of consignment;
• terms of trade – Incoterm;
• price or value per item, and for the total consignment.

Further information may be required by the overseas importer specific to the type of goods being exported from Australia. This is particularly important for prohibited material such as weapons and material that is subject to the Protection of Movable Cultural Heritage Act 1986.

[2] Customs Tariff Act 1995 Schedule 3, Section 21, Chapter 97/3.

[3] Documentary Import Declaration Comprehensive Guide: http://www.customs.gov.au/webdata/resources/files/DocImpDecGuide.pdf

Information for Exporters: http://www.customs.gov.au/site/page.cfm?u=4784

[4] http://www.customs.gov.au/site/page.cfm?u=5663

[5] Customs Act 1901 Section 68

[6] Customs Act 1901 Section 162

[7] Event status will be discussed in greater detail in Sections 2.4 – 2.10.

[8] An application for Tariff Advice (B102) is available from http://www.customs.gov.au/site/page.cfm?u=4533

[9] Contact details are available at origin@customs.gov.au,

[10] For a plain English explanation of Incoterms, see ‘International Trade – A Practical Introduction’, R.Bergami (3^rd ed.), Eruditions Publishing, Melbourne 2009. A reference table of Incoterms can also be found http://www.customs.gov.au/webdata/resources/files/FS_Incoterms.pdf

[11] This is based on the Free on Board value of the goods which is calculated as all costs to the airplane or ship excluding the international freight and insurance costs.

[12] Customs Act 1901, s.113

[13] A full list of the mandatory fields that needed to be completed for an Export Declaration can be found at http://www.customs.gov.au/webdata/resources/files/FS_ExportDeclarations.pdf

[14] See discussion above at Information declared to customs.

Introduction

Those on the outside tend to think of insurance as a legal form of gambling: The company bets the insured that certain events will not happen; if the events occur, the company loses; if they don’t, the insured loses. The amount of the premium represents the odds of the event occurring. If the odds are high, so are the premiums. If the chances are low, so are the premiums.

All right, that is overly crude. The reality is subtler. Perhaps insurance is better described as a form of ‘risk exchange’ where the insured is able to divest itself of unacceptable risks at terms that are acceptable and the insurer takes on these risks at terms that are acceptable to the insurer. Provided the terms have been set equably then both parties should win. (Certainly this last sentence makes it clear that there is a great difference between using the ‘gambling’ analogy and the ‘risk exchange’ description.)

Insurance is a risk management tool. It does not replace the usual obligations of reducing the dangers of loss or damage in course of operating the organisation. The role that insurance should play will vary according to the individual circumstances of each collecting organisation – but what it does not do, is relieve the board and the administration of its responsibilities of care. Insurance does not protect a collection item: It protects its financial value.

Insurance is a contract. The parties to the contract are the insurance company and the named party in the policy. It does not provide protection for any third party (unless that third party is specifically named in the contract). For example, the visitors to a community museum are not directly protected by the insurance taken out by the museum; if injured, they have no claim against the insurance held by the museum. Insurance only protects them to the extent that if they suffer injury and sue the museum, the museum’s ability to pay damages is not restricted by its own limited resources. Insurance is protection for the museum. It means that in the event of loss, theft, damage or injury, it will be better able to meet its liabilities without endangering its ability to continue operations.

This chapter does not purport to cover all issues that arise with insurance, nor all kinds of insurance. It raises the difficult question of whether to insure at all; it summarises the kinds of insurance that should be considered by collecting organisations, and lays out some of the commonly occurring issues that arise in many forms of cover.

To insure or not to insure

An ownership issue

If the organisation is the absolute owner of the work or object, there is no legal obligation to insure it: The decision is essentially one of governance. However, most collections also contain material in which ownership is less than absolute. For example, it may have been donated or bequeathed to the organisation for specific purposes[1] or with specific instructions[2]. It may be on loan or so-called ‘long-term’ loan; it may have been bought in partnership with another organisation and be jointly owned; it may have been bought by money specifically provided by a sponsor for the purpose (and there may be contractual obligations attaching to the sponsorship). In these cases, the organisation may well have a financial exposure that it should insure.

Accordingly, in making the decision ‘to insure or not to insure’, it might be useful to ask: ‘Who owns the material?’ ‘Are we the absolute owners?’ ‘If not, what are our obligations to the other party?’ You might crosscheck this by then asking: ‘How did we acquire the material?’ ‘Was there anything about the acquisition that may create an obligation or that may limit or qualify our ownership?’

When the risk affects others or affects your obligations to others, prudence often requires that the risk of loss be mitigated by taking insurance.

A governance issue

Whatever the policy adopted by the board, there will be foreseeable (if uncertain) consequences for the organisation and the board’s governance obligations can reasonably be expected to extend to identifying those consequences and implementing prudent plans to meet them.

For example, if the board decides that the organisation should ‘self-insure’ its collection, it must acknowledge that there is still a risk of loss or damage to collection material and must implement a strategy to meet that foreseeable event. So, it might decide to budget for insurance premiums and actually appropriate that sum and invest it. All too often the money not spent on premiums is merely allocated to other pressing needs rather than being applied to minimisation or mitigation of the particular risk.

If it decides not to insure its collection at all, the board is making a very serious decision affecting the future of the collection. It may be that the board should at least consider taking out ‘annual aggregate cover’ or ‘cover in excess of an annual aggregate deductible’. For example, the institution and the insurance company may agree that if claims exceed a total of $250,000 in a year or $50,000 on any single loss, the company will cover the amount of the loss in excess of those amounts. Similarly, the use of ‘deductibles’ (discussed later) may reduce the premiums to manageable sums.

One thing is certain: the board has a heavy legal burden to protect the organisation, including its assets, workers and visitors. It is a brave board that fails to give deep thought to (i) the reasonably foreseeable risks that the organisation bears, and (ii) how the duties that attend those risks should be addressed.

What to insure

Deciding which risks must or should be insured is part of the risk management strategy of any prudently managed collecting organisation. The material that follows first looks at the non-collection material insurances and then at those issues specific to collections and exhibitions. [3]

The building

Whether it is prudent to insure the buildings, in which the collection and administration is housed, is a common issue faced by boards. Is the organisation the owner? If not, it is likely that the lease will require that the building be insured. If it is, what would the organisation do if the building were destroyed? Can it afford not to insure?

The premium will vary considerably according to the location of the building, the construction materials, its age, the accessibility of fire extinguishers or the installation of sprinkler systems, even whether people are allowed to smoke on the premises.

It is wise to make sure that the cover will meet replacement costs and that there is no deduction for depreciation. Moreover, if an ‘agreed amount’ cover can be negotiated, this will eliminate the trap of a ‘co-insurance’ penalty. (For explanation of ‘co-insurance’, see later).

Contents (excluding the collection)

This is an issue faced by all homeowners with contents insurance: getting an inventory of all of the contents, assembling and organising the documentation and estimating the replacement value. Even collecting organisations that apparently have very little by way of furniture, fittings and equipment will be surprised when they do an audit of these items: lighting systems; display systems; shelving; furniture; security, conservation and maintenance equipment. These all add up to a considerable, if often hidden, asset.

Standard ‘all risks’ insurance should be taken out. There are two types of cover:

• actual cash value (that is, replacement cost less depreciation);
• replacement cost (that is, no deduction for depreciation).

Make sure you know what you are buying. Regular checks should be made of the inventory to ensure that the amount of cover is sufficient. Coverage is usually written on the basis of ‘cash value’, that is, replacement cost cover (with no deduction for depreciation). Replacement cost cover (with no deduction for depreciation) will also be available but will obviously cost more. It should also be noted that many policies exclude the property of employees, volunteers and members of the public (for example, the cloakroom). This should be checked.

Workers’ compensation

Employers are legally obliged to take out workers’ compensation insurance for all employees.

The cost of workers’ compensation insurance takes account of the dangers inherent in the employee’s job. Thus, a museum administrator will cost less to insure than a salesperson, who in turn will cost less to insure than a van driver.

Premiums are calculated on the number of employees, their occupations and their gross salaries at the time of taking out the policy. During the year the complement of staff may change considerably but this is simply noted at the end of the insurance period and the next year’s cover will be accordingly adjusted.

Public liability

Public liability insurance is essential. All collecting organisations should have it, without exception. If an organisation invites the public to its premises it must protect both itself and its invitees. It is not a legal obligation, but a social obligation. It is not uncommon for Australian courts to award in excess of $2,000,000 to seriously injured plaintiffs. Those sums are awarded not to punish the negligent but to compensate the injured. While premiums have increased dramatically in recent years, public liability cover is still relatively cheap.

It is also prudent business practice. Visitors are always likely to trip, fall and hurt themselves and just that simple incident can threaten the financial resources of the organisation and endanger the personal assets of the board and management.

Goods in custody cover

This policy is designed for organisations that hold goods on consignment or loan. This allows an organisation to insure objects that do not belong to it, thus protecting both itself and the owner.

If operating a museum, gallery or library shop, one might purchase a package which may cover say, $30,000 stock and $5,000 goods in custody. A declaration of actual stock and goods in custody must be made monthly and the premium will vary monthly depending on the actual variations reported each month. Similarly, where the institution is the temporary bailee of material, for example where it is considering acquisition or is undertaking identification or valuation services for the public, this kind of cover should be considered. The risks may be tempered by the use of documentation that includes clauses that contractually limit liability for loss or damage to such material but experience indicates that, because the risks attending temporary custody are high, it may be worthwhile to minimise exposure by using both insurance and contractual limitations of liability.

Transit cover

Common carriers do not treat culturally or historically significant objects as a separate category. They usually offer a general insurance policy costing about $4.50 per $600 cover. This is usually automatically added to the freight cost. It is also totally inadequate for the transport of cultural material.

Collecting organisations must use specialist carriers because they will pack and handle the collection material correctly, thus reducing the chance of a loss or damage. All of these carriers have their own contractual terms and these should be considered with care.

Plate glass insurance

Plate glass is expensive and some property owners may elect to insure themselves against its breakage. However, where the organisation rents buildings the lease agreement usually obliges the tenant to take out plate glass insurance. If the glass has painted lettering or burglar systems attached these additional expenses can also be insured.

Trustees and officers

Given the increased personal liability imposed on trustees, board members, officers and senior management, it is common practice that the organisation take out insurance to cover them from legal liability. If this were not the case, it would be difficult to attract top quality people to these important roles. Provided that the insured has acted in good faith, this insurance gives protection against any direct loss arising from actual or alleged error, misstatement, act or omission and breach or neglect of duty.

Volunteers

Volunteers are not covered by workers’ compensation insurance because they are not employees. Nor are they covered by public liability, for they are more than ‘mere’ members of the public. Volunteers must be covered for personal injury.

One must also make sure that the other insurance policies protecting the museum and its collection cover situations in which the loss is caused by a volunteer.

For further discussion of volunteer liability, statutory protection and insurance, see Chapter 37 Volunteers.

The permanent collection

It is a matter of considerable debate as to whether collecting institutions should take out insurance on their permanent collections. In brief, the argument against says that, as museums largely collect the irreplaceable, insurance is pointless. The argument for insurance, stresses that:

• only some kinds of collections are irreplaceable;
• only some items in the collection are irreplaceable and the insurance will enable the replacement of those which can be replaced; and
• new material will have to be found and this will also have to be paid for.

There is no legal obligation to insure the collection. Where the collection remains permanently within the collecting institution’s premises, it may be arguable that the money is better spent on security of the premises and better internal care and control of the material. But when the material leaves the immediate control of the organisation, the risks increase and, with it, the prudence of insurance.

Whether the organisation should insure or not, and if so – what to insure, for how much, and subject to what conditions – are all matters for decision by the board. These are important matters of institutional policy and governance. They are the board’s responsibility.[4] Once the over-arching issues have been decided by the board, then it is up to the organisation’s administration to do the scoping, selection, negotiation, implementation and administration required by the insurance strategy.

When considering this cover it is important to consider the subject and extent of the cover. For example, where the institution contains a permanent collection and a study collection, the decision may be made to insure only the permanent collection because it is the more valuable. Conversely, it may be decided to insure only the study collection because the risks to its damage are higher due to the use to which it is put. Such decisions are unique for each institution.

Of course, it is unwise to focus exclusively on the risk of complete loss. Where the material is damaged you will have the costs of restoration and conservation. ‘If one has certain items that are unique and could not be replaced with something similar, but which form an intrinsic part of the collection and that one either does not wish to view as an asset, or cannot do so due to ownership constraints, then one might wish to insure solely against restoration costs. By speaking to recognised conservators it should be possible to establish the maximum probable expenditure per item to restore major damage. There is obviously a point beyond which it is not possible to restore but one should work to a point as near that as possible in calculating the cover required to fund restoration costs.’[5]

There are now policies available that relate specifically to collecting organisations. The collection is usually – and ideally should be – covered by a type of insurance known as ‘all risks’, that is, it covers all risks of physical loss or damage including fire, theft, storm, flood, escape of water, accidental damage etc subject to specific exclusions. (Although transit cover and goods in custody insurance are set out below as separate categories, a good specialist “All Risks” policy should incorporate both these elements.)

Again the insurance company will assess the risks in determining the premium. Factors other than market value may include: security measures deployed, frequency, manner and expertise of handling, special characteristics of the objects (such as fragility or attractiveness to thieves), storage and environmental controls (such as humidity, light, dust, heat).

Once a claim is made, the burden is on the organisation to prove that the amount claimed is a fair market value for the loss. This may be easy if there are comprehensive registration records maintained and if expert valuers (or auction records) substantiate the claim. This is rarely a problem for major institutions, but is commonly more difficult for organisations that do not maintain adequate records or collect material that, while being socially and historically significant to the local community, does not have an established market value.

You avoid this difficulty if the basis of the insurance is ‘agreed value’. This avoids any ambiguity with regard to quantum in the event of a total loss since the values are agreed between both parties at the beginning of the contract. This does however mean that an up-to-date valuation of specific items needs to be maintained, so it is best used for the more important items in the collection, the balance being insured on an indemnity or market value basis.

Other collections

Many large collecting organisations maintain collections other than the permanent collection, such as collections that are made available for research, loan, educational purposes etc. These are often of lesser value and lesser rarity than the permanent collections. These create an interesting conundrum because, although they may be of modest financial value or consist mainly of duplicates, the way that they are used (indeed their very purpose) exposes them to a greater likelihood of loss or damage.

There is no one answer. The organisation must consider each collection, the use that it is put to; the rarity of the material; its financial value; the ease of replacement; and even the way that its uses are administered,[6] to determine whether insurance is prudent. But if you want to replace the collection in the event of its destruction, you will need money – and that suggests that insurance may be prudent.

Temporary loans and travelling exhibitions

The usual practice is to insist that the ‘borrower’ will meet all insurance needs. The issue of who should arrange and pay for insurance should always be set out in the loan agreement.

The standard requirement is that the material will be covered for ‘all risks’ both at the museum and while in transit. In these instances it is usually advisable to take an ‘agreed value’ policy rather than a ‘market value’ policy.[7] It is also desirable to consider whether ‘deductibles’ are desirable, for although they keep the cost down, it means that the borrowing museum will be liable to make up the difference and it may not have the resources to do so. If that were to occur both parties would be in a difficult position.

The conditions of the loan agreement must always be consistent with the requirements of the insurance policy.[8] This is a fundamentally important consideration in the drafting of the loan agreement. Indeed, it is advisable for the borrowing institution to check its insurance policy and include in its standard loan agreement any restrictions or requirements imposed by its insurance policy.

Where both the lender and the borrower have their own insurance policies, the parties are best advised to compare the terms of the policies to see which is the more favourable. For the borrower, because there are likely to be many loans, it is administratively easier if its own policy is used. However, if the lender insists that the loan be covered by its own insurance, the prudent borrower institution will insist that:

• a premium quote is given;
• it is named in the policy as an additionally insured party or the insurance company’s right of subrogation against the borrower is waived;[9]
• either a certificate of insurance is delivered to the borrower or that the loan contract specifically excludes the borrower from any obligation to insure or liability for not insuring;
• the borrower will not be liable for any error or deficiency in information provided by the lender to its insurer or for any lapse by the lender in coverage.[10]

Insurance issues affecting collections and loans

Exclusions

Common exclusions include ‘wear and tear, gradual deterioration, inherent vice, damage resulting from any repairing or restoration process, war on site, terrorism on site and nuclear reaction’.

International lenders sometimes insist that the insurance policy covers war and terrorism. Both of these are difficult to obtain.[11] Sometimes these demands may be waived if the lender is satisfied that the security measures taken by the borrower are sufficient.

Sometimes, during the course of the loan the insurance company may advise the insured that the exclusions have been varied. If this occurs, the insured must advise the other party immediately and provide a revised certificate of insurance.

Sole recovery

The agreement should state that in the event of loss, theft or damage of the loaned material, recourse to the insurance cover will be the lender’s sole remedy.[12] This puts the focus clearly upon the need to get a proper agreed valuation for the loan.

Further, in a related but distinct point, the loan agreement should explicitly state that the borrower will not be liable for any sum over and above the insured amount (that is, that the insured value is the deemed ‘total loss’ value. Malaro helpfully suggests adding a clause to the following effect: ‘Any recovery for depreciation or loss of value shall be calculated on a percentage of the insured value specified by the lender in the agreement.’

Insured value

Loans should be insured for their agreed value: neither too high nor too low. Where the lender sets a value for insurance purposes it is essential that this figure be examined by the curator for the borrower and its appropriateness will be determined by its likely market value.[13] Where the value put on the item by the lender is not considered defensible by the lender, the borrower must attempt to negotiate the figure down to an objective value that is verifiable by reference to the market. If the parties are unable to agree on the value, the loan should not proceed as the borrower is exposing itself to liability for the gap between the contracted value of the item and the amount that the insurance company will pay in the event of its loss, theft or damage.[14]

The issue with insuring permanent collections is slightly different. ‘On large collections it is obviously not practical to list each and every item and to assign it a value, but one may wish to list everything with an individual value in excess of, say, £2,000 and insure for a block figure representing the value of all the remaining items in that category, that is, ‘all remaining Chinese porcelain £65,000’.

With regard to what value one places on an object, this depends entirely on the context, but for insurance purposes the main options tend to be: retail replacement cost, replacement cost at auction or net asset value. It is perfectly possible to insure for a lower agreed value, but in order not to negate the point of insuring the item, there should be a reason for doing this, such as the example of an item being used as collateral where one only wants to insure for the amount of the loan.[15]

Even though an exact replacement may not be possible (for example, in fine art or other one-off material), cover can be arranged so that you receive an adequate sum to cover the cost of purchasing a similar object. You should be careful to take into account dealer’s mark-up or auctioneer’s commission and other potential acquisition expenses when setting the amount insured. Because of these expenses, the replacement value will usually be more than net asset value.[16]

Absence of insured value

Where the lender fails to provide a value for insurance purposes it is important that the borrower either (i) make a reasonable estimate of value and submit that to the lender for inclusion in the agreement, or (ii) obtain a complete waiver of all liability arising from the loan, or (iii) include a term by which the value of the item shall be deemed to be that reasonably determined by the insurance company.

If the borrower puts forward an estimate of the insurance value it is important that the agreement explicitly states that the estimate is not an appraisal of market value and is not to be used by the lender for any other purpose. While it is unlikely that the borrower will want to obtain independent third party valuations for this purpose, such estimates are often fairly easily obtainable through discussion with the curator of the exhibition or relevant department and from sales records.

Replacement versus restoration

Where the item is made of material that is made of materials that may be replaced or exchanged, the borrower will usually insist that it be insured for its replacement value. For example, assume that a gallery borrows a Janet Laurence work made of grasses, wood, soils and sand. If the grass component dies or is damaged, the insurance cover is likely to deem that the damage amounts only to partial loss and that it can be repaired. In such case the policy would meet the cost of restoration of the fungible material plus any loss of value – or the insurance company could consider the grass component that died as ‘inherent vice’ and therefore an exclusion under the policy.

The Replacement v. Restoration dilemma often arises in loans of new media and digital objects. For example, with new media works, the borrower would be prudent to borrow a ‘display copy’ and not the ‘master copy/original artwork’. In the event of damage to the ‘display copy’, the insurer would meet only the cost of replacing the copy. Because of this, it is important to establish the value of the ‘display copy’ early on in the loan negotiations as this is always much less than the value of the ‘master copy/original artwork’. Another example arises when borrowing digital photographs. If the general public get close to the work during the display period it may end up damaged by fingerprints. While the artist/lender considers the work to have been damaged, an insurer is likely to treat the value of the claim as the cost of reprinting the photograph.

Sometimes, because of the unique nature of the piece, or because of its particular family, religious or cultural significance, its value lies in that significance rather than its monetary value. In such cases the cost of restoration may exceed the value of the item but the lender insists on a term in the policy that obliges restoration. There is no easy answer to this. An open chequebook is never a good idea and will be antithetical to your insurer. Usually the answer lies in negotiating with the insurer and the lender to arrive at an agreed cap.[17]

Waiver of obligation to insure

Sometimes the lender agrees to waive the borrower’s obligation to insure. Sometimes this may be because the overall value of the material is so small or because the material is already covered under the lender’s own blanket policy. There is no easy answer for the borrower – it depends on the circumstances. For example, if the borrower agrees that the value of the material is miniscule (and that value is reflected in the agreement), it may decide to take the risk and remain uninsured. Where the value is high, it may be prudent for the borrower institution to take out its own insurance or, at least, obtain in the loan agreement a complete waiver of all liability arising from the loan.[18]

Cost

Nick Brett, of the London-based insurer AXA Art Insurance Ltd, has the following advice as to costs:

The rate charged by an underwriter is made up of various different components. They need to charge for the likelihood of loss from various perils, i.e. fire, water, accidental damage, theft, malicious damage etc as well as allow a margin for the expense of underwriting the risk, carrying out surveys and a modest margin for profit.

One should always start on the basis of insuring against ‘All Risks’. The difference between the rate for All Risks cover and the rate for limited perils cover is likely to be relatively slim, particularly from a specialist insurer who will want to provide a decent scope of cover to their client.

It is also the case that those perils which are most remote will only account for a tiny fraction of the rate, and those perils which represent major risks (i.e. fire, water and theft) will account for the bulk of the rate.[19]

What should the policy include?

Brett goes on to advise that a policy covering collection material differs in several ways to a general property insurance policy: It should ‘include provision for specific risk management, valuation and conservation advice; it should include cover for depreciation; it should operate on an agreed value basis where possible; it should not contain inappropriate single article limits; it should provide for an appropriate claims service including referrals to specialist loss adjusters and restorers’. Gold dust advice.

General insurance issues

‘Co-insurance’ and ‘average’

‘Average’ and ‘co-insurance’ are often used as though they were synonyms. Actually, they are slightly different. ‘Co-insurance’ is where more than one party takes a share of the risk and that party could be the insured themselves, either because they wish to or because the insurer insists upon it.

‘Average’ is where the sum insured is found to be an inadequate representation of the value at risk and so the insured is obliged to bear a share of the loss commensurate with the amount of under-insurance deemed to have taken place. It is a contractual means whereby the insurer penalises an insured who under-insures property. The insured is considered to be a self-insurer for the amount under-insured, and will also have to bear a rateable share of partial losses (in proportion to the extent of under-insurance). In other words, through the ‘average’ principle, you would be treated as a co-insurer.

A simple example will make this clearer:

Because you have only insured the item for 50 per cent of its actual value, in effect, you would be self insured for 50 per cent of the full value and thus 50 per cent of any claim.

Administrators must be aware of the dangers of the ‘co-insurance’ clause. This clause takes effect if the collection is under-insured. For example, if the collection is worth two million dollars it may be insured for only one million (on the basis that it is unlikely that more than half of it would be wiped out in any disaster). In such a case the payment made by the insurance company will be reduced by the same percentage as the under-insurance. So, in the above example the payout would be reduced by 50 per cent.

Although the company will allow a ten per cent margin, collecting organisations are usually better off having the co-insurance clause deleted altogether. A ‘deductible clause’ will help keep the costs down.

A ‘deductible’ is the agreed amount that will be subtracted from the payout in the event of a loss. For example, the institution may agree to meet the first ten thousand dollars of any loss. This cover will be cheaper than one in which the insured organisation meets only the first five hundred dollars.

Deductibles may be structured in a number of ways. For example, they may relate to individual items, to all losses resulting from a single occurrence, or even all losses within a specified period. It is crucial to examine the exact terms used in the contract.

Exclusions

All policies, even ‘all risks’ policies, include exclusions. These must be carefully considered as they often require negotiation so that the cover obtained matches the real risks. There are some exclusions that are usually non-negotiable such as ‘fair wear and tear’, nuclear explosion, terrorist attack, war, insurrection, revolution, attacks by vermin, natural deterioration caused by the nature of the material and so on. Some policies even exclude flood. It is important to read these carefully. What is precisely meant by such words? For example, if there is a flood exclusion will it treat claims for damage caused by a plumbing disaster in the same way as damage caused by a flooding river?

Exclusions are included by insurers to limit their liability. They are a crucial component of the insurance company’s risk management strategy. They are a reflection of the extent to which the insurer’s interests conflict with those of the insured. You should only accept exclusions where such exclusions are compatible with your own assessment of the identified risks. After all, you take insurance as part of your risk minimisation strategy so it is essential that the real risks are covered and not excluded.

Read the policy

The insured should always insist upon being given a draft of the policy and an opportunity to examine discuss consider and negotiate it. It is essential to have a complete understanding of all its terms. If in doubt, ask.

Always insist on receiving a copy of the final insurance contract. It is the only way that one can be sure that the policy has actually been issued and is the only way to be sure of the exact terms of the protection that has been bought.

Further information

The Museums Australia website has an excellent resource for collecting organisations that wish to obtain further information.[20] That site also contains information on likely costs of various kinds of cover that small collecting organisations are likely to face. The large institutions negotiate individually shaped and costed insurances.

Government indemnity schemes

The Commonwealth and State governments all have insurance or indemnity schemes. They vary in ease of use and practicability and this is not the place to analyse them all. This isn’t a handbook for the collection or exhibition manager who needs to be expert on government indemnity schemes. The starting point of enquiry might be the summary of indemnity schemes set out in Appendix C of the 2001 Commonwealth inquiry entitled, ‘Covering Your Arts: Art Indemnity in Australia’.[21]

So that the reader can get a flavour of these schemes (rather than purporting to be a handbook on them), the following sections provide a brief summary of just two: The Victorian and the new Commonwealth schemes.

The Cultural Exhibitions and Fine Arts Indemnification Scheme (Victoria)[22]

This Indemnification Scheme provides indemnity cover for the temporary display of objects of material culture for the benefit of Victorian audiences and is managed by Arts Victoria. The scheme provides Government-backed, fully insured indemnification to approved exhibitions organised by Victorian cultural institutions.

Insurance arrangements for the Indemnification Scheme are made by the Victorian Managed Insurance Authority (the VMIA). The VMIA arranges all Victorian Government insurance, and due to its whole-of-Government buying power is able to provide insurance premiums at extremely competitive prices.

The Indemnification Scheme aims to facilitate the presentation of significant temporary exhibitions throughout Victoria by removing the potentially prohibitive cost of insurance. It also aims to promote best practice in exhibition management across the gallery and museum sectors.

The Indemnification Scheme accepts applications from organisations within Victoria that have undergone a risk management and site accreditation assessment. Indemnified exhibitions may be:

• drawn from local, interstate or international sources;
• presented at one accredited venue only;
• toured to several accredited venues within Victoria;
• toured both within Victoria and interstate, in which case indemnification covers only the Victorian component of the tour and the transits to and/or from the interstate venues.

Applications are assessed by a Ministerially-appointed Indemnification Committee. The Committee includes representatives from regional and metropolitan galleries and museums, conservator and representatives of the major State agencies. The Committee meets four times per year, or as required, to assess and prioritise applications against the Scheme’s objectives and assessment criteria described in the application guidelines. Applications must be submitted at least eight weeks prior to the requested Indemnification start date. There are four application rounds each year.

Priority is given to exhibitions which:

• are from organisations that have undergone a satisfactory risk management and site accreditation assessment through VMIA;
• will make a significant impact on the applicant organisations;
• show evidence that all security, transport, packing and handling will be carried out according to the Security Checklist found in the application guidelines;
• have a confirmed itinerary;
• have a budget and marketing strategy commensurate with the scale of the exhibition.

Other matters for consideration during the assessment process include:

• legal status of the management organisation;
• proposed itinerary, including specific accredited venues;
• exhibition budget;
• identification of the objects for display.

Security, packing, transport and courier arrangements (in all instances professional standards must be met, specific requirements must be decided for each exhibition)

All organisations applying for indemnification or presenting indemnified exhibitions must undergo a risk management and site assessment. Galleries and museums are rated against a range of industry benchmarks and given a rating of gold, silver or bronze. This rating corresponds with the level of excess payable in the event of any loss or damage to an indemnified exhibition at the gallery/museum.

What will not be indemnified include:

• touring exhibitions while at venues that have not undergone a risk management and site assessment and/or are outside Victoria;
• the transit or display of works that are being purchased by an institution;
• exhibitions with a value of more than $55 million;
• commercial endeavours that include works for sale;
• incomplete applications may not be considered;
• wear and tear. A basic exclusion of the insurance policy that underpins the Indemnification Scheme is ‘ordinary wear and tear’. Exhibitions with components that are interactive can be covered for the total loss of those objects, but not for their repair if they break down or are otherwise damaged through use.

The Indemnification Scheme will not cover damage to didactic or promotional panels, nor can it be used to insure crates for exhibitions.

The Commonwealth scheme

In the 2009 Federal Budget the Commonwealth Government announced that as from 1 July 2010 it would replace the present Art Indemnity Australia program with a new scheme – the Australian Government International Exhibitions Insurance Program (AGIEI). It heralds a completely new approach whereby the Government will provide funding for eligible organisations to purchase their own commercial insurance.[23]

When the still current scheme, Art Indemnity Australia (AIA), was introduced, it was hailed as removing from galleries the financial burden of seeking commercial insurance. The new scheme recognises that when dealing with exhibitions valued at more than $50 million, insurance is best treated as a commercial and budgeted cost of mounting major exhibitions. The $50 million threshold is increased from the $20 million threshold under the current scheme.

This is a major shift of philosophy: When the AIA first started in 1979 the Commonwealth self-insured against the risk of loss or damage to indemnified works of art. In 2001, this policy changed and the Commonwealth took commercial insurance to reinsure its risk. Now, with the new scheme, the Commonwealth has removed itself from potential legal liability and from the administrative burden (except where collecting institutions choose to use Comcover as their insurer). In its new, simplified role it will merely provide funds to enable exhibition promoters to obtain their own cover to cover their own risks. The original approach was sensible. The new approach is sensible. The current one never was.

Applicants to the AGIEI are limited to:

• Commonwealth, State or Territory Government collecting institutions;
• incorporated not-for-profit Australian collecting organisations; and
• incorporated not-for-profit organisations that have experience in developing and touring international art and cultural exhibitions[24].

This is a huge expansion of access. Previous governments attempted to manage their exposure by limiting access to the scheme to just two organisations: the National Gallery of Australia and Art Exhibitions Australia Ltd. This made sense in the days in which those organisations were probably the major promoters of blockbuster shows but over the past thirty years other organisations, in particular some of the State Galleries, have become experienced presenters of mega shows. Notwithstanding this, when the AIA was reviewed in 2001, the Commonwealth continued to exclude the State institutions from direct participation in the AIA[25] saying that the State institutions should either partner with one of the managing organisations or rely on their own State government indemnity schemes. Thankfully, that thin-lipped state/federal tension is not reflected in the new scheme.

However, it should be noted that there will be some caveats on the ability of state-based organisations to access the program. Single-venue exhibitions in the home state/territory of the applicant, where that state/territory has its own indemnity or insurance scheme will not be eligible. This places an emphasis on touring exhibitions to more than one venue and ensures that the Commonwealth scheme is seen as an addition to, not a replacement for, state government funding.

While the above is a step forward, the description of eligible applicants might have some interesting consequences. For example, most regional collecting institutions will not be eligible to apply because most of them are not, themselves, incorporated. They are owned by local councils. A few, however, are incorporated[26] and would clearly be eligible provided they have exhibitions valued at $50 million or more. Still, the details of the new scheme are yet to be released and small anomalies such as this can easily be dealt with as the program evolves.

In general, the AGIEI is a completely new policy direction and is an initiative that will be widely welcomed by the sector.

The Department of Environment, Water, Heritage and the Arts will administer the program. At time of writing, all we know is that applications for funding under the AGIEI Program will involve two stages: an initial application for in-principle approval and a final application at least 60 business days before the exhibition is to commence. Initial applications for in-principle approval for funding under the AGIEI Program will be due on 1 March each year for exhibitions commencing on or after 1 January of the following year.[27]

However, there will also be an interim arrangement for exhibitions commencing between 1 July and 31 December 2010 with applications closing on 31 October 2009.

[2] For example, ‘to be used for the benefit of the collection’.

[3] The variety of insurance cover available is limited only by the needs, imagination, and resources of the parties. Other policies not discussed here include: boiler insurance; computer insurance; library, valuable papers and records insurance; vent insurance; all risk floaters; accounts receivable insurance; money and securities insurance; products liability insurance; contractual liabilities insurance; publishers liability insurance; and many others. It is important that the organisation and its broker discuss at length the needs of the individual collecting organisation, before settling for any particular policy or company.

[4] As with other governance obligations, the board’s liability only extends to giving the issue its diligent consideration. It is not required to get the answer ‘right’.

[5] Nick Brett, AXA Art Insurance Limited, Works of Art: Their Financial Protection (unpublished).

[6] For example, if a natural history collection lends a collection of hundreds of rock samples or butterflies to an academic researcher, is there a system by which the loaned material is condition reported and counted before the loan and upon return? If not, there is little point in insuring the material for loss of damage when on loan because the claim would not be able to be substantiated.

[7] See ‘Insured value’ below.

[8] The prudent borrower will not agree to any demand that it will be liable ‘to the full extent of insurance coverage’. It is none of the lender’s business what that full extent may be. To disclose that can, in some cases, even be in breach of the insurance policy. It does have a right to be contractually insured that the borrower’s insurance is sufficient to cover the value of the loaned item.

[9] ‘Subrogation’, is the right of the insurance company that has paid out on a policy to ‘stand in the shoes’ of the indemnified party (the insured) and to then seek redress against the party responsible for the loss. For example if an employee of the borrowing institution is negligent and causes damage to the insured material, the lender’s insure will pay out the owner but would have the right to then chase the employer of the negligent employee (the borrowing institution) to recover the amount of the payout. In this way, it is clear that the lender’s insurance provides no protection to the borrower unless it is either a named additional insured or the rights or subrogation are explicitly waived.

[10] M. Malaro, Managing Museum Collections (2nd ed), Smithsonian, at 242.

[11] Indeed terrorism insurance was so problematic in the USA that the bush administration introduced the Terrorism Risk Insurance Extension Act which was a temporary mechanism intended to provide certain cover until the private insurers could develop their own responses to the terrorist threat in the USA. Unless extended, the Act expires on December 31, 2007. See http://www.treas.gov/offices/domestic-finance/financial-institution/terrorism-insurance/

[12] See M. Malaro, Managing Museum Collections (2nd ed), Smithsonian, at 241-242.

[13] Note that the agreed value is just that. Reference to likely market value is only one consideration that can be helpful in working out what that agreed value should be.

[14] There is also an ethical issue for the borrower institution. In agreeing to an over-valuation it is permitting its reputation to be used to ramp the value of the item. Subsequent potential purchasers of the item may/are likely to be shown the value that was agreed by the borrower institution and rely on the supposed care, attention and expertise implicit when it signed off on the ‘agreed value’.

[15] Nick Brett, AXA Art Services Limited, Works of Art: Their Financial Protection (unpublished).

[16] See Fn 15.

[17] In such a situation it is prudent also to include a term whereby any liability for claim over and above the agreed cap is expressly excluded.

[18] Make sure that the waiver includes liability for ‘gross negligence’ as it is well established that where one party attempts to exclude liability for its own negligence, the courts are inclined to disallow reliance on an exclusion clause where the negligence has been ‘gross’. If your sense of pride forbids excluding your own gross negligence, get insurance.

[19] See Fn 15.

[20] Risk Management and insurance for museums and Galleries: <http://www.museumsaustralia.org.au/site/page233.php>. This provides a directory of related websites and a very useful article Insurance Issues at the opening of the 21st Century, J. Edwards & B. Robertson, History Matters, Vol 14, Number 3, Nov 2004.

[21] <http://www.aph.gov.au/House/committee/cita/arts_indemnity_australia/artreport.html>.

[22] The following information has been obtained from the Guidelines and Application Forms available on the Arts Victoria website: <http://www.arts.vic.gov.au>.

[23] See <http://www.arts.gov.au/collections/agiei-program>.

[24] For example, Art Exhibitions Australia Ltd.

[25] The AIA was last reviewed in 2001, ‘Covering Your Arts: Art Indemnity in Australia’; see <http://www.aph.gov.au/House/committee/cita/arts_indemnity_australia/artreport.html>.

[26] Such as the Wollongong City Gallery which is a company limited by guarantee.

[27] <http://www.arts.gov.au/data/assets/pdf_file/0006/88665/agiei-factsheet.pdf>.