Andrea Wallace Queen’S University Belfast University of Glasgow [email protected] [email protected]

CREATe Working Paper 2017/03 (March 2017) Copyright and Cultural Memory Digital Conference Proceedings 9 June, 2016 – The Lighthouse, Glasgow Editors Ronan Deazley Andrea Wallace Queen’s University Belfast University of Glasgow [email protected] [email protected] CREATe Working Paper Series DOI:10.5281/zenodo.345968 This release was supported by the RCUK funded Centre for Copyright and New Business Models in the Creative Economy (CREATe), AHRC Grant Number AH/K000179/1. COPYRIGHT AND CULTURAL MEMORY Digital Conference Proceedings 9 June 2016, The Lighthouse Copyright and Cultural Memory: Digital Conference Proceedings How does copyright impact the access to and use of our shared cultural heritage across borders, and online? This document presents an edited transcript of a one-day conference designed to explore this essential question. 'Copyright and Cultural Memory', organised by CREATe and held at The Lighthouse on 9 June 2016, addressed a number of copyright-related issues in the heritage sector. CREATe researchers Ronan Deazley (Queen's University Belfast), Megan Blakely, Kerry Patterson, Victoria Stobo, and Andrea Wallace (all Postgraduate Researchers at the University of Glasgow) addressed the challenges of digitisation, intangible cultural heritage, risk-based models of copyright compliance for archive collections, and surro- gate intellectual property rights. The conference featured presentations by CREATe Postgraduate Researchers followed by a discussion with a panel of experts. Afterwards, keynote speak- er Simon Tanner (King's College London) responded to the research. The day concluded with a question and answer session reflecting on the research pre- sented and the role of copyright law and policy in the heritage domain. This document captures those presentations, along with the panel discussion and question and answer session that followed, in a citable format. This event was funded by CREATe, University of Glasgow, the Research Coun- cils UK Centre for Copyright and New Business Models in the Creative Econo- my (www.create.ac.uk), AHRC Grant Number AH/K000179/1. CREATe receives funding from the Arts and Humanities Research Council, the Economic and Social Research Council and the Engineering and Physical Sciences Research Council. CC BY 4.0 - [Author, Title, in Copyright and Cultural Memory: Digital Conference Proceedings, eds. Ronan Deazley and Andrea Wallace, 2017.] #CaCM2016 This publication is issued in conjunction with the Copyright and Cultural Mem- ory Conference held at The Lighthouse in Glasgow on 9 June 2016 and made available online as a resource at http://www.create.ac.uk/cacm2016. Video presentations from the event can be viewed at: http://www.create.ac.uk/ cacm2016/videos Graphic design by Andrea Wallace Table of Contents Presentations Megan Blakely GLAMourishing Intangible Cultural Heritage 1 Kerry Patterson 'But when are they to be published?' Digitising the Edwin Morgan Scrapbooks 13 Victoria Stobo Copyright, Digtisation and Risk: Taking risks with archive collections 26 Andrea Wallace 'Display At Your Own Risk' & 'CopyThat': Examining misconnections between cultural institutions and users 39 Response Panel Discussion Alison and Alistair McCleery, Ben White, Naomi Korn, Joris Pekel, and Margaret Haig 60 Keynote Simon Tanner Threads of Culture, Threads of Discourse 77 Q&A With presenters 91 COPYRIGHT AND CULTURAL MEMORY The Lighthouse, Glasgow // 9 June 2016 Megan Rae Blakely GLAMourising Intangible Cultural Heritage Good morning. I’m Megan Blakely, and I am going to start off the programme today by talking about intangible cultural heritage and intellectual property. Since we are in this gallery setting, I Figure 1 wanted to focus on the GLAM sector, and sometimes it helps to start our morning with a pun, so we will be talking ‘GLAMourising’ Signposts intangible cultural heritage. • Intangible Cultural Heritage (ICH) and Intel- The way we're going to proceed this morning is by starting with lectual Property (IP) » Definitions and legal challenges definitions and challenges (Fig. 1). The law functions by defining » TRIPs, the CDPA, and the EU Directives and making boundaries, and intangible cultural heritage by its na- » 2003 Convention for the Safeguarding ture needs to expand, to be living, to evolve and to reflect the of ICH identity of the practising community. That will be the first thing » Penumbras: Developed countries (WTO), that I will start to take a look at. unions, and intangible cultural heritage Then I will talk a little bit about the process that happens when • Tangification: Where are GLAM institutions situated? intangible cultural heritage changes form in order to be proper- tised as it does with intellectual property, where exclusionary • Case Studies: IP systems and Norms in ownership can impose limits on this type of heritage, and look at Celtic-derived Developed Countries a few case studies in the UK. I focus specifically on Celtic-derived • Concluding Thoughts: What does this countries just to narrow the focus, in particular, on the developed mean for GLAM? countries of Ireland, Scotland, Northern Ireland, and Wales. These are jurisdictions that are generally more focused on intellectual property development and less on cultural policy. I’ll talk a little bit about that as well. Then I will wrap up with just a few concluding thoughts about what this means for GLAM. create.ac.uk/cacm2016 // 1 Figure 2 So, culture-producing versus knowledge-producing: we are divid- ‘Knowledge-producing’ v ‘culture-produc- ed between the global north and south (Fig. 2). The global north ing’: the false dichotomy seems to be more focused on knowledge producing in the law. This slide is not meant to be an exhaustive list of the international instruments that have been put into place in the field of intellectual property and culture, but it is meant to illustrate chronologically how these two legal systems have developed independently of each other. Even from 1886 with the Berne Convention for Artistic and Literary Works, you have the Hague Convention for Cultural Property, and they sort of develop in two different streams and don't cross over much as far as international instruments go. Figure 3 The main Convention that deals with intangible cultural heritage • Precursors to the 2003 Convention for was put together in 2003, came into force in 2006: the Conven- the Safeguarding of ICH in International tion for Safeguarding Intangible Cultural Heritage (Fig. 3). And Law: » The Berne Convention: “Protection” you'll notice that there was an intentional word choice here with » The World Heritage Convention: “Pro- this Convention using ‘safeguarding’ as opposed to the language tecting and preserving” that you see with the Berne Convention using ‘protection.’ The » TRIPS: “Protection”, “private rights” World Heritage Convention, which focuses on monuments or • The 2003 ICH Convention as a response: non-moveable heritage such as landmarks or symphony thea- » Art. 2(3): “Safeguarding” tres, these sorts of things, uses the terminology ‘protecting and conserving,’ and TRIPs, which is the strongest intellectual prop- • Legal position of developed countries in erty convention, also uses the terminology ‘protecting’. So there unions ‒ devolved rights is literature about how ‘safeguarding’ was meant to reflect the different nature of what the Convention addressed. create.ac.uk/cacm2016 // 2 Figure 4 Since we have people here from a law background and also from Intangible Cultural Heritage and the 2003 a culture background, I'll try to touch just a little bit on the defi- Convention for the Safeguarding of ICH nitions of each (Fig. 4). Intangible cultural heritage is defined by the Convention as ‘the practices, representations, expressions, knowledge, skills of communities, groups including the objects, artefacts and cultural spaces that individuals recognise as a part of their cultural heritage.’ It also provides a sense of community and identity. If any of you are lawyers, you can see how this might be problematic if you were trying to write some kind of statute or law surrounding this because it's very vague. To identify what ICH might be, the Convention also provides some illustrations. ICH might be oral traditions and expressions, performing arts, crafts- Figure 5 manship and all these sorts of things. You can see how some of 2003 Convention Key Obligations it might cross over into artistic and literary works that would be • Listing and indexing ICH protected by copyright, and some of it doesn't. The protection • Awareness could overlap. • Education • International participation If you do join the 2003 Convention on Safeguarding Intangible • Representative listing and urgent safe- Cultural Heritage, your obligations involve listing and indexing ICH, guarding and promoting awareness and education about intangible cultural heritage and international participation (Fig. 5). I was recently at a conference on the 10-year anniversary of this measure being in force, and it seems the countries that have not signed up to the Convention feel very strongly that they should, and the countries that have signed onto the Convention feel that perhaps the definition isn't sufficient to represent and safeguard all of the types of intangible cultural heritage that they practice. But they all agree that it is important to be at the table, have the conver- sation, and to be a part of the international discussion about this type of heritage. create.ac.uk/cacm2016 // 3 Figure 6 Notably, the United States, the United Kingdom – and I did used Criticisms and non-ratification justifications to have Ireland on here – are not signatories. Ireland has now signed up. They're one of the newest signatories, one of the newest parties to the Convention. I’ll talk about a few examples from each of these jurisdictions and why it might make a difference if they are involved or not. As far as joining or not joining, for the UK specifically, some of the criticisms of the Convention have been that it could be con- strued too narrowly or too broadly as a form of protection; it could create just another exclusionary listing and not really reflect cultural practices (Fig.

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