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Author's Right, Copyright and Free Licenses for Culture on the Web/Problems and Solutions/Contracts and Consents

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115. Should cultural institutions operate with contractual models? Why?

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Cultural institutions should operate using contractual models in order to specifically govern the different aspects of their relationships with authors, artists, photographers, curators, licensee, donors, collectors, sponsors, publishers, etc. The multiple roles of counterparts of cultural institutions and the complexity of the issues that the institutions have to define in order to have a profitable relationship with third parties, require the availability of a formal contractual model in order to reach a specific regulation to protect the rights of the contractual parties.It is also important to make use of models to be able to identify, among other things, which rights are assigned, to give transparency to the relationship established between the parties, and also to comply with certain obligations required in any case, by legislation (when written form is required by law). Lastly, it is advisable to operate with contractual models in which various aspects of copyright issues examined in this work are addressed.

It is important to remember that at the European level, art. 7 of Directive 2019/790 governs the relationship between exceptions to copyright and contracts, and provides that some of the new exceptions and limitations to copyright (such as, for example, pursuant to Article 6, the possibility of making copies of works of others for conservation purposes, in any format) cannot be excluded by contract. Any contractual clause contrary to the European provision providing exceptions would be considered unenforceable. Member states must therefore provide the legal framework to ensure that the right of the cultural heritage institutions to preserve works is not affected by contractual clauses.

Reference: "Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC". EUR-Lex. Article 7. Retrieved 2021-02-22.

116. Are models of purchase agreements available?

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There are some models of agreements, which are not standard however, in the sense that some entities, cultural institutions carry on their activity with their drafts or following some guidelines provided by, for example, by associations/entities both at a national and international level.

References:

117. What consents are necessary to organise a contemporary art exhibition?

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In general, in order to organise an exhibition of contemporary art, it is necessary to obtain a prior consent to:

  1. use the images of the displayed artworks in any kind of material for communication/advertisement/commercial purposes;
  2. use the music, videos, images along the exhibition or elsewhere, for example on the social platforms;
  3. use the images on the website of the cultural entity;
  4. use the possible photos, video shootings of the public of specific events.

In some cases, it will be necessary to ask for the prior authorisation from the rightsholder at the entity which manages the rights.

118. How does one draft a consent/grant of use rights?

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The consent should specify in detail the uses of the artwork/image for which the consent is requested, the timing, the place or digital location for such use, the privacy issue, the withdrawal clause. The authorization granted is effective only within the limits for which it has been granted (ie. consent to use the image on a specific kind of publication does not allow the publication on a different tool).

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In the event of donations, deposits in archives and libraries, of documents protected by author’s rights it is advisable to ask to the donor/depositor a representation whereby he declares to have all rights related to the donated/deposited goods, in particular the right to use and the authorisation to make reproductions, and to specify that such rights and grants are transferred to the receiving party (donor/depositor shall have the right to transfer such rights).

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