Covid-19: the art and cultural sector
On March 11th 2020, the World Health Organization declared the Covid-19 outbreak a pandemic and warned that the resulting global emergency would affect almost every industry and sector.
Indeed, the crisis has severely impacted the art and cultural sector worldwide: all major events and fairs have been cancelled or delayed, and art galleries and museums have had no choice but to temporarily shut their doors to the public.
Lockdowns and social distancing have affected cultural sites around the world, leading governments to adopt extraordinary measures to provide financial and economic support (first and foremost, by setting up aid schemes and emergency funds).
The acceleration of digitisation
Due to government restrictions, museums across the globe have sped up their digitisation by expanding the range of content accessible to the public through both websites and apps, as well as media networks and other cultural content distribution platforms. Digitisation is a must rather than an option, and digitalised collections are proving to be valuable resources in a crisis.
Virtual tours, podcasts, live streams of lectures, chatbots, social media sharing, and user-generated content are just a few of the many solutions used so far to enable art and culture to be enjoyed remotely.
Challenges faced by museums across Europe
In July 2020, the Network of European Museum Organisation (NEMO) published a report highlighting the challenges faced by museums across Europe in digitising collections and establishing online access.
The report includes findings from a survey conducted on three target groups: national museum organisations, national ministries in charge of museums and individual museums on digitisation and copyright, together with recommendations to EU policymakers, national museum organisations and individual museums. Some of the findings are a little worrying. Less than 20% of museum collections are available online, meaning that less than half of the objects are available to the public.
It is thus unsurprising that the report raises concerns regarding the lack of a mechanism to track the digitisation process, limited online accessibility, and the lack of communication between stakeholders (on the operations and legal side) in the digitisation of cultural heritage.
There are three main types of digital museums:
- Brochure museums – essentially, websites that convey information to the general public about museums
- Content museums – typically, databases of museum collections
- Virtual museums – online platforms that make a number of tools and museum content available to the public, thus enabling a level of cultural enjoyment similar to the offline experience. These are generally the most popular option.
Key legal issues from an Italian law perspective
The digitisation process can often be costly, require upskilling of staff, and brings several legal uncertainties.
These range from copyright and cultural heritage protection to personality and privacy rights, not to mention potential violation of third-party rights. This may even be of a criminal nature, such as defamatory content.
Regardless of whether virtual museum content (on the internet or through other remote means) was digitised from an analogue form or was already digital, copyright law draws a major distinction between content that is copyright-protected and content that is in the public domain.
If the term of copyright protection of the original works in museum collections has not expired, museums must ensure they have the related economic rights (and all related neighbouring rights).
Once the term of copyright protection expires, the economic rights cease to be effective and the original work may be freely exploited. In any case, once an original work is in the public domain, the owner remains entitled to forbid anyone from accessing or reproducing the work and to make any use of it conditional on his/her approval.
That said, several fair use exceptions naturally apply. Communicating or making original works available to individuals for research or private study through dedicated workstations on museum premises, on condition the works are not subject to any restrictions under assignment or licence agreements.
Moreover, in Italy, works from public museum collections that qualify as cultural heritage warrant particular attention. That is because they may be reproduced only if authorised by the Italian Ministry of Cultural Heritage – and only if applicable law on copyright protection and cultural property preservation permits.
The use of digital technologies is key for museums to reach a wider audience and involve the public through immersive and interactive virtual reality. These could range from user- and visitor-generated content, crowd-curated exhibitions, personalised online collections, mobile tours, email newsletters, and social media-supported affinity groups.
Implementing a digital strategy requires careful analysis and assessment of the rights over museum content, whether it is to be shared on proprietary channels or social and media networks operated by third parties (such as YouTube, Instagram, Facebook, Twitter, Pinterest and Tumblr).
About the authors:
Alberto Saravalle, partner an leader of the art and cultural property focus team
Silvia Stabile, of counsel and member of the art and cultural property focus team
Manlio Frigo, of counsel and member of the art and cultural property focus team
Art and Cultural Property Focus Team, BonelliErede
BonelliErede has a multi-practice focus team composed of experts in tax, customs, civil litigation, criminal, corporate, IP and private client issues.
Rich with recognised specialists in all areas strictly related to art and cultural property, our Art and Cultural Property Focus Team regularly assists key players in the market, such as museums, foundations and cultural institutions; libraries and archives; educational institutions; international art galleries and auction houses; art dealers and their associations; artists; art collectors; high net worth individuals and families; private clients; art advisors and qualified art experts; high-level wealth managers and family offices; financial institutions and private banks; trustees and fiduciaries; corporations; and public institutions.
+39 02 771131