142._org_ National Gallery of Victoria

Full name: National Gallery of Victoria

If you are making this submission on behalf of an organisation, please provide the name: 

National Gallery of Victoria

Address: 180 St Kilda Road Melbourne VIC 8004
Contact phone number: 03 8620 2208

Question 1: 
Current Australian copyright law affects the National Gallery of Victoria’s (NGV) ability to undertake new digital initiatives to provide the general public access to the collection both online and in other digital platforms. This issue of access is a key issue for the National Gallery of Victoria; targets are set around access by the Gallery, Government and other funding bodies.
Under the Copyright Act 1968 the NGV clears copyright of all works placed online and on various digital platforms. These copyright clearances impose substantial costs to the Gallery in terms of both financial outlay and staff time. These costs have, at times, restricted our digital and online activity as the Gallery is working within the limited budgets of a public institution.
 Question 2: 
The NGV is in agreement that new exceptions to the current Copyright Act 1968 are desirable. An exception around providing fair access of public collection works online, for personal use, would benefit all cultural institutions in Australia. This exception would be of great benefit to the public who currently have limited access to Australian cultural collections due to the restrictions of current copyright law. In addition, as the NGV has approximately 70,000 artworks in its collection, only a small percentage can be on display at any one time. By granting fair use to cultural institutions like the NGV to reproduce their collections online it would enable all works to be accessible to the public – part of the gallery’s and Victorian Government’s strategic plan and policy on access to the state’s collections.
Should any exceptions be included, these exceptions need to be clear and concise to give a public institution, such as the NGV, confidence in both applying and relying upon these exceptions. 
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The NGV clears copyright on all reproductions of works in the digital environment, this current practice is often cost and time contingent. The NGV does not rely on the current libraries and archives exceptions, as we feel our activities fall outside of this exception.
Examples of digital activities impeded by current copyright law are as follows:
Question 20: 
The introduction of 200AB to the Copyright Act 1968 has not changed the rights practices of the NGV. There seems to be a great level of uncertainty on when and how apply 200AB, particularly around visual arts and gallery practices. 200AB seems principally concerned with the practices of libraries and archives. Despite the NGV holding such material, our practices and uses for this material are very different.
200AB is not clear and concise enough to give a public institution, such as the NGV, confidence in both applying and relying upon this exception. By nature many cultural institutions are risk adverse and any reliance on a legal exception would need to be carefully considered. The current wording is unclear and as such has not been utilised by the NGV. 
Question 21: 
The Copyright Act 1968 should be amended to allow greater digitisation and communication of works by public and cultural institutions. An exception around providing fair access of public collection works online, for personal use and research, would benefit all cultural institutions in Australia. An exception such as this would also benefit academics, students and the general public as cultural collections would have greater visibility online.
Currently, at the NGV all works appearing in Collection Online are copyright cleared at significant cost due to the rates charged by collecting agencies. Images are always credited with full captions and are available at low resolution 72 dpi.
The NGV feels making images of works available on Collection Online gives great exposure and visibility to artists; it also serves to adhere to our mandate of access. Often individual artists, not represented by a collection agency, are very pleased for their works to appear online at no charge. These artists have cited the benefits of including their works online, as part of the prestigious state collection.
Any amendments would need to specifically address the concerns of cultural institutions to promote free and fair use of cultural collections.
Question 22: 
The digitisation of indigenous works should be treated with the utmost respect as these works may contain culturally significant content. There is always the concern that culturally sensitive material may be misused, handled in an inappropriate manner or used for commercial purposes. 
The NGV holds a large collection of Indigenous Art, and we can only speak to such material. Our current practice ensures we clear all copyright on every reproduction with relevant copyright holders, usually arts centers based in/near Country.
As cultural institutions and users of this content, we need to be guided by the Australia Council's Protocols for producing Indigenous Australian visual arts documentation and any information that comes from researchers and Community in regard to these objects. The NGV is always guided by our curators and Community protocols when publishing Indigenous works. This could include removing works from display when an artist passes away or altering caption information as advised.
The greatest concern for Indigenous Art would not be misuse instead invisibility in a digital world.
Question 23: 
The NGV can only speak to orphan works of art, of which we hold a small number of works in the collection. In some cases we clearly know the works are in copyright – much of this material is Indigenous art or from the Pacific or South-East Asia. In all cases we have tried to track copyright holders and hold relevant documentation.
When it has not been possible to clear copyright, we have published orphan works and invited copyright holders to contact the NGV. We would much rather publish these works than risk them being unknown to the public.
Question 24: 
The NGV strongly advises against creating a new exception and/or collective licensing scheme for the use of orphan works.
Should a formal licensing body be developed to license these works, we would see many of these works simply not being reproduced. The nature of a collecting agency is to take a fee to pass onto the copyright holder. When these copyright holders are unknown and an agency is taking a fee – there would be a strong reluctance to license these works. 
Many cultural institutions such as the NGV have strong networks and ways to track copyright holders. We would feel a collecting agency licensing orphan works is unjust. Should copyright holders of orphan works come forward to the NGV we would prefer to settle any fees owed personally without the aid of a collecting agency, as is the current practice.
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The Copyright Act 1968 should be amended to allow greater digitisation and communication of works by public and cultural institutions. An exception around providing fair access of public collection works online, for personal use and research, would benefit all cultural institutions in Australia. See Question 21 for further response.
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The NGV would be interested in a flexible ‘fair use’ exception being added to the Copyright Act 1968. Increasingly cultural institutions, such as the NGV, are part of the broader digital world. In countries such as the United States (US), where fair use, already exists, it would make sense to bring Australian copyright law more in line with international copyright legislation.
There would be many benefits of a non-commercial fair use exception being introduced to include uses such as commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. These uses are part of the United States fair use exception.
Cultural collections would benefit from a fair use exception as works held in these collections would become more accessible and utilised for fair and reasonable purposes such as the above.
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File 1: 
alrc_-_copyright_and_digital_economy_issues_paper.pdf
File 2: