111._org_Art Gallery of New South Wales

Full name: Donna West Brett

If you are making this submission on behalf of an organisation, please provide the name: 
Art Gallery of New South Wales

Question 1: 
As a major public cultural institution, the Art Gallery of New South Wales (AGNSW) has a significant collection of Australian, Aboriginal and Torres Strait Islander art, and international works of art. In addition, the AGNSW presents over 35 exhibitions a year and includes curated exhibitions with national and international loans and smaller exhibitions of works drawn from the collection. The collection has been available online since 2000 (with a substantial amount of images) and all exhibitions are promoted online and in print and other media. Associated with this activity are publications, public programs and events that engage audiences with the collection and exhibitions. Changing technologies and audiences have resulted in the AGNSW and like-institutions, engaging with diverse media platforms including creating new media for mobile devices, film and video footage for broadcast or on the internet, utilising third party sites for public access such as Utube, ItunesU and other web channels and a burgeoning interest in e-publications.
The challenges for public cultural institutions such as the AGNSW centre around our mandate to provide access to our collection and exhibitions, maintaining and preserving our collection and providing educational programs in a climate of changing technologies, diverse audiences, diminishing budgets and shorter timeframes. Examples of the ways in which these core activities and programs are complicated by copyright limitations will be discussed throughout this submission and include: 
•	Mass digitisation (artworks, archival material)
•	Digitisation for preservation, documentation and conservation
•	Digital publishing
•	Orphan works
•	Unpublished and anonymous works
•	Section 200AB

Question 2: 
The public gallery and museums sector would benefit from a guiding principle that united the mandate placed on cultural institutions to collect, conserve, display and interpret works of art for the benefit of the public with the development of new technologies and access models. This guiding principle could be applied to copyright limitations affecting cultural institutions including mass digitisation and online access to collections and orphan works for example. This would benefit large cultural institutions and smaller regional galleries alike.
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The AGNSW currently relies on the libraries and archives exceptions for a number of 'administrative' purposes despite the fact that these purposes may or may not clearly fall under this exception. These 'administrative' purposes include:
•	The digitisation of works of art and making available the digital image on an internal database for the purposes of managing, conserving and caring for the collection
•	Supplying digital images to other cultural institutions related to works of art on loan for exhibition, for the purposes of conservation, condition checking, identification and publication/communication. The onus of obtaining copyright licences for publication is borne by the borrowing institution.
•	Supplying digital images to other publishers or members of the public for publication
•	Supplying digital images to students and researchers
•	The digitisation of specific works of art, library documents or moving footage/video for the purposes of preservation regardless of whether the 'work' is commercially available. 
FILM/VIDEO
The gallery is often required to make a digital exhibition copy of a film/video (regardless of format ie DVD/CD/VHS/BETA etc) and store it on a computer storage system for exhibition purposes in order to retain the 'original' editioned artwork for the collection. Presently these 'copies' are made under licence from the artist or their agent, however, clarification of whether this use is permissable under the Libraries and Archives Provision would assist in the administrative burden of obtaining a licence. 
In addition the gallery makes copies of collection material in the format of film and video for preservation to a like format, but at times these formats are no longer available, nor viable and a copy may need to be made to a different format (eg digital). The gallery confers with the artist in the matters to determine the best way to achieve this without compromising the artwork. Under the current provisions, a copy of a work cannot be made if the work is commercially available, but does not allow for the fact that the work may be part of a limited edition. 
ADMINISTRATIVE PURPOSES AND ONLINE ACCESS
We would like to see the provision for 'administrative' purposes clarified and extended to include copyright material on DVD/CD. As Emily Hudson and Andrew T Kenyon point out in their paper Cultural institutions in the digital age, there are restrictions on the accessibility of digitised content often preventing such material to be made available either online or via email/cloud or other online delivery systems. They also note the lack of provisions "that allow cultural institutions to place digital images on publicly accessible websites, regardless of whether the resolution is low or high."
Question 20: 
The AGNSW currently uses the 200AB provision in the assessment of 'orphan works'. (see question 22). Given that the provision was designed to provide a workable exception for cultural institutions it is unfortunate that many institutions in the gallery sector are struggling with its interpretation and application. As Emily Hudson has identified in her paper Fair use and section 200AB: what overseas experience teaches us about Australian copyright law, the combiniation of a risk averse sector and unclear drafting of the exception has resulted in very little takeup of potential benefits of the provision by public galleries. For instance, the museums and gallery sector would benefit from a clearly defined exception that enabled online access to its collections for the purpose of public access, and the application of the exception for the purposes of reproducing orphan works. Although it could be argued that making images of works in a publicly owned collection (the digitisation of which has often been funded by government) is a socially beneficial exercise and would not unreasonably prejudice the legitimate interests of the owner of the copyright, nor conflict with a normal exploitation of the work, it is unclear after careful analysis and legal advice as to whether this use would fall under this provision.
Hudson outlines some of the issues concerning online collection databases including limiting the size and resolution of images. Although collection works are normally only uploaded at 72dpi it is not of benefit either to the artist, the collection nor the public to have small thumbnail images. As a cultural institution with a vision of extending access to its collection to the public (in urban, regional and remote areas), and to schools, scholars and other cultural institutions, we would argue against a limitation of size but instead limit the resolution. 
Question 21: 
The AGNSW has over 30,000 works in its collection and a large number are in copyright. A number of these works (estimated at approximately 3000) fall into categories for which the artist is either unknown (anonymous) or the copyright owner is unknown or uncontactable (mainly estates) and are being assessed through an Orphan Works policy. As stated earlier, the gallery's mission is to collect, conserve, display and interpret works of art on behalf of the public. Part of this mission is to provide access to its collection both through exhibition and display and through online access with a particular emphasis on access to Australians living in regional and remote Australia. 
The gallery has considered the possible use of s 200AB in the application of providing access to the collection online, however, this pursuit was deemed to be high risk given the lack of clarity over the provision. The gallery will however, continue to publish orphan works online in consideration of the exception afforded by s 200AB.
Given the extremely low remuneration for copyright owners for collection works on a public gallery website, the gallery encourages the ALRC review to consider a more balanced access approach to allowing the digitisation and communication of works of art on public institution websites. Amendments could include a provision to allow the publication of works on a public gallery website via a specific collection database as already available through major Australian galleries such as the Art Gallery of NSW and the National Gallery of Australia and other institutions such as libraries and archives. These collections are available online often with missing images due to copyright restrictions. This hinders both access to and research of our public collections and, we would argue, diminishes remuneration for artists through other economic models including secondary rights income and primary publishing income. 
Arts and cultural institutions are actively pursuing new audiences and ways to provide access to collections and exhibitions via digital communication. Following are examples of the 'end use' of digital images of collection works and exhibition loans on desktop and mobile digital formats.
•	Website with collection, exhibition, video and interactive media (see below)
•	Collection online with live information on object location http://www.artgallery.nsw.gov.au/collection/ 
•	Exhibition sites with embedded video, curator and artist talks such as the current Francis Bacon exhibition
•	Gallery channel with videos of behind the scenes, curator & artist talks. http://www.artgallery.nsw.gov.au/channel/exhibitions/francis-bacon/
•	Gallery apps for desktop and mobile devices
•	Blogs
•	Educational resources, collection and exhibition guides
•	Digital in-house screens 
•	Online catalogues/e-books
•	Google Art Project
The AGNSW obtains copyright licences for all reproduction uses and consults when necessary with artists or their estates concerning the representation of their work. As a minimum, the gallery would welcome discussion and revision of the Act to enable the reproduction and dissemination of collection works online. 
Question 22: 
The gallery has been digitising its collections, including works by Aboriginal and Torres Strait Islander artists since 2000. Issues that have arisen during this period of time have related to artworks that depict culturally sensitive material, and photographs of deceased people or ceremonies that are culturally sensitive or restricted. In each case, the gallery's copyright department and Aboriginal art department consult with the relevant Indigenous community regardless of the copyright status of the work. In addition, the gallery has developed both copyright and Indigenous consultation policies which uphold the rights of Indigenous peoples in regards to the representation of and remuneration for their cultural and artistic material. The digitisation of works of art from the Aboriginal and Torres Strait Islander collections enables staff, scholars, the public and Indigenous communities to access works in the collection. Given the limitations of the libraries and archive provision, it would seem that in sharing these images with Indigenous communities or scholars for the purpose of research and custodianship is an infringement of copyright. In addition, the digitisation of photographs of this collection, specifically works that are fragile or are of a specific sensitive nature, assists in prevention of damage to the works by over handling and movement. Therefore, the works can be viewed and assessed with an image rather than handling the work itself. 
Question 23: 
As a public cultural insitution the AGNSW currently relies on s 200AB for the publication and communication of works in our collection and in assocation with exhibitions when the artist in unknown (anonymous) or the copyright owner is unknown and uncontactable after a diligent search. In addition we rely on the provision for the copying, publication and possible communication of works in the archive and library. A large portion of artistic works that have been identified as orphan works are works for which there is no identified artist and the date of creation of a work is estimated to be from the twentieth century, with most works originating from the region of Asia. In addition, a large number of works are by deceased artists for which their estates have been unlocatable by several like institutions and after a diligent search. These latter works are assessed and a risk analysis is undertaken in regards to their non-commercial publication and dissemination on the web. 
In addition, the gallery has a substantial library and archive relating to the history of the gallery, and includes artist archives and archives from commercial galleries and arts organisations. All this material has cultural and scholarly value which is potentially inaccessible due to the unlimited copyright term placed on unpublished and anonymous works, the difficulty of orphan works and their digital access. 
The legal treatment of orphan works via the 200AB exception (or amended guidelines) enables an increased access to and disseminaiton of copyright works. The gallery hopes that with greater exposure of such works (as well as non-orphaned works) that a greater level of research and knowledge about the collection can be achieved through public access to the works and to archival material. 
Question 24: 
Further to question 23 and further to staff presentations on the issues of 'Orphan Works' as presented by Brennan and Fraser's paper The use of subject matter with missing owners: Australian Copyright policy options (2011) the gallery is hesitant about supporting a collective licensing model for artistic works that are potentially covered under s 200AB and for which there is unlikely to ever be a locatable copyright owner. The model put forward by Brennan and Fraser is useful in regards to the establishment of a user-pays database which could register orphan works, or in the case of artists, we would argue for the registration of 'orphan artists' given that artists generally own the copyright in their own work. As Kenyon and Hudson have pointed out in their research on cultural institutions, digitisation and copyright, the gallery and museums sector is risk-averse and diligent in establishing copyright ownership of works reproduced in their collections and exhibitions. In short, if after a diligent search, a copyright owner cannot be located, it is unlikely that a copyright owner exists. If a copyright owner does exist but is not located within a reasonable time, the gallery would not hesitate to negotiate with the copyright owner. 
After careful consideration of Brennan and Fraser's proposal the AGNSW does not support the onerous administration of orphan works via a collective licensing scheme, nor the registration of copyright, but instead favours the establishment of a database of orphan artists and/or copyright owner contacts which could be managed on a subscription basis. 
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The AGNSW would welcome the development of a specific exception in regards to unpublished and anonymous works after a fixed period of time. The current status of unpublished and anonymous works prohibits a fair use of such material specifically for scholarly and cultural pursuits. 
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See earlier comments in regards to collecting institutions and access to collections online. 
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