Digital Access to Culture: Copyright in Photographs of Two-Dimensional Art Under Australian Copyright Law

28 Pages Posted: 31 May 2018 Last revised: 16 Jun 2018

Jani McCutcheon

The University of Western Australia Law School

Date Written: December 7, 2017

Abstract

Photographs of cultural collections are an essential means of disseminating art and democratizing access to culture. This article reviews the policies of five major Australian galleries on access to their collections. It finds they tend to claim copyright in photographs of their collections, including of public domain works. This reflects a perceived entitlement to control access to their digital collections, often bolstered by a misstatement of copyright exceptions, restrictive quasi-copyright contract terms, licensing practices, and physical property rights in photography's appurtenances. This curbs the emancipatory potential of digitization, generating a conflict between the property interests of cultural institutions and the public interest in enhanced access to culture. The problem is particularly acute with respect to images of public domain art, exclusive control over which diminishes the public domain. This article considers the novel question of whether copyright subsists in photographs of two-dimensional art under Australian law, arguing that such photographs lack the originality indispensable to copyright subsistence. This conclusion significantly undermines cultural institutions’ licensing models and challenges misconceptions of property rights in the photographic surrogates of two-dimensional cultural objects. The article urges cultural institutions to liberate the digital surrogates of public domain art to enhance access to cultural capital.

Suggested Citation

McCutcheon, Jani, Digital Access to Culture: Copyright in Photographs of Two-Dimensional Art Under Australian Copyright Law (December 7, 2017). (2017) 7:4 Queen Mary Journal of Intellectual Property . Available at SSRN: https://ssrn.com/abstract=3084385

Jani McCutcheon (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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