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Canada owns a multi-billion-dollar art collection, but much of it remains invisible online — a symptom, experts say, of copyright law that’s both restrictive and vague, making public institutions hesitant to take a chance.
The National Gallery of Canada holds more than 87,000 works of art, according to its website, but digital images are available for only 15,000, roughly one-fifth of the collection.
For those far from Ottawa, access to much of the collection still depends on visiting the gallery in person.
“We should be able to see our nationally held collections,” Simon Bentley, a Toronto art dealer and the owner of Simon Bentley Fine Art, told CBC News.
“To expect someone from Vancouver has to fly to Ottawa to see any of our Doris McCarthys or any of our Wanda Koops … that doesn’t make any sense. We’re in the digital age.”
A search of the gallery’s database lists the works it has by both Koop and McCarthy without accompanying images.
Bentley says he believes publicly owned art should be publicly visible and that requiring museums to pay reproduction fees for digital images diverts limited arts funding and restricts how much of a collection can be shared online.
The National Gallery said in a statement that copyright belongs to artists and their estates under the Copyright Act, and that it pays reproduction fees to display works online.
It said federal law requires certain fees to be negotiated through artists’ associations such as Canadian Artists’ Representation (known by its bilingual acronym CARFAC) and that the gallery is renegotiating agreements aimed at expanding digital access.
The goal “is to make the entire collection available online,” said senior officer of public relations Josée-Britanie Mallet.
Requests for comment sent to CARFAC, which receives federal funding to represent the interests of Canadian artists, were not returned.
Fair dealing debate
Some copyright experts say the law may already allow greater flexibility than institutions assume — and uncertainty about how it applies has left publicly funded museums cautious about sharing more of their collections online.
Carys Craig, a professor of intellectual property law at York University in Toronto, says Canadian law includes “fair dealing” provisions which apply to everyone and allow certain uses without permission including research, private study, parody, satire, criticism, review and news reporting.
York University professor Carys Craig says uncertainty in the Copyright Act often leads public institutions to err on the side of caution when posting digital images of artworks.
But, she says, fair dealing requires a case-by-case assessment of whether a particular use is actually “fair,” and the law does not explicitly address museums or the like posting large numbers of digital images online.
“The difficulty is, it’s not clear what they’re able to do without explicit permission,” Craig said, adding that when the law is unclear, institutions often seek permission rather than risk infringement.
By contrast, Britain’s National Gallery provides online images for nearly all works in its roughly 2,300-painting collection. The gallery did not respond to a request for comment about how it manages copyright permissions.
Craig says other countries, such as the U.K., have made clearer choices about digital access to publicly funded cultural institutions.
“The U.K. explicitly turned their attention to this and looked specifically at what the galleries and archives could do,” she said.
“We have not similarly made a policy decision here that would free up our institutions from over-adherence to strong copyright law.”
She says Parliament could clarify the law to permit the use of thumbnail and digital images to inform the public about museum collections.
“This is a matter for Canadian cultural policy and copyright law is a cultural policy tool,” Craig said.
“There is no reason why we should have or tolerate a copyright system that prevents us from being able to manage our cultural heritage the way that we choose to.”
The Canadian Museums Association, which represents museums across the country, said digitization policies are generally set by individual institutions.
“Any large institutions, such as the National Gallery of Canada, will have robust internal processes and policies that direct work,” Rebecca MacKenzie, the association’s communications director wrote in an email to CBC News.
MacKenzie added that the CMA “does not provide explicit guidance on digitization,” though it is looking to address the issue in an upcoming update to its ethical guidelines.
