Sally Yoon is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

Museums have long been a source of education and inspiration, but technological advancements have allowed for exhibitions that display a unique intersection of modern technology and history. Exhibitions incorporating the use of AR and VR technologies enable visitors to and absorb educational content through interactive games. Museums have become some of the world's most innovative content creators, capturing the attention of individuals of all ages.

Engaging, accessible and a springboard for creative projects

What exactly does it look like when a museum embraces technology? In 2021, Athena Art Foundation, Colnaghi Foundation, National Portrait Gallery and Megaverse collaborated to launch the “” series. The series features digital, interactive versions of the gallery’s portraits in place of their traditional, static counterparts. Brought to “life,” the portraits tell their stories in an engaging and authentic style. The first portrait in the series featured Jem Belcher, a 19th-century bare-knuckle boxer and butcher who speaks of his accomplishments as one of the best boxers of his time. Additionally, these digital portraits are more accessible to a wider audience, including those with visual impairments.

Augmented reality (AR) has also been utilized to explore various perspectives. Last year, LACMA collaborated with Snapchat in the Monumental Perspectives Collection to explore LA community histories through AR. As a part of the collection, Sandra de la Loza’s “” is an AR animation to portray what has been lost and “a vision of new ecologies in the future.” The piece revives native plants in South Los Angeles and illustrates how the land is linked to time and history with the transition of seasons.

(Caption: Sandra de la Loza, What the Willow Whispers, 2022, in collaboration with LACMA × Snapchat: Monumental Perspectives, © Sandra de la Loza, image courtesy of Snap Inc)

A new box of legal issues

Museums will need to consider new issues as they explore new technological media. For example, they will need to weigh the potential benefits and drawbacks of allowing visitors to use various AR apps and tools to customize works. While some argue that such acts would be a defilement of fine art and would prefer that works are preserved in more controlled environments, others see that these technologies offer opportunities to study works in greater depth. Loic Tallon, Digital Chief of the Metropolitan Museum of Art, : “[t]he museum’s mission is to collect, preserve, and study works of art … if someone is making an AR experience out of the collection, I see it as pure mission fulfillment.”

Furthermore, remains a key issue that can easily be complicated when it comes to these technologies. For AR works that may be the product of multiple copyright holders, the museum must make sure that proper steps are taken to locate and obtain all permissions or licenses for the use of the work. In this process, it will be important to discuss with artists the extent to which their work is original and what is sourced from third parties.

Annually held conferences such as the “” by MuseumNext, bring together members of the world’s leading institutions, to continue exploring the ways technology can be integrated in exhibitions in the future. If you love both history and technology, chances are your local museum has something for you.

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Maria Prymachenko, (1982)

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

On February 25, invading Russian forces the Ivankiv Historical and Local Museum, and the many culturally and historically significant pieces it housed, to the ground. The Museum’s collection included 25 paintings by Maria Prymachenko, the celebrated Ukrainian artist world-famous for her colourful folk art style. Prymachenko’s great-granddaughter that a local man ran into the burning building and was able to save some of the precious works. Yet many more pieces were lost, and millions of artworks and monuments at risk from Russia’s military onslaught. These those dating back to the Byzantine and Baroque periods, as well as UNESCO World Heritage sites.

Ukrainian Minister of Culture Olexandr Tkachenko has that Russia lose its UNESCO membership. The destruction of Ukrainian cultural heritage at the hands of Russia is not a novel occurrence -  the 2014 annexation of Crimea and the conflicts in Donetsk and Luhansk to the loss of dozens of archaeological, historical, and artistic collections. James Cuno, President of the J. Paul Getty Trust, released a condemning the cultural atrocities taking place in Ukraine alongside the unfathomable human and environmental losses. Cuno identifies that cultural heritage has the power to unite us, and is critical for achieving peace, making it a common target in war; a means of destroying a society by erasing its memory. Officials preserving and protecting cultural legacies in times of conflict has the power to bind local people and foster peace, once the shooting stops.

The importance of safeguarding cultural property extends beyond the borders of Ukraine. The preamble of the recognizes that “… any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural property of all humanity, because every people contributes to the world’s culture.” Putin’s continued violation of international law is a blow to the international legal order – one that Yale Law School’s Oona Hathaway and Scott Shapiro must be met with an aggressive and resolute response.

Uncertainty and crisis in Ukraine have left many fleeing their homes, while museum employees remain behind to look out for their collections in whatever way they can – whether by standing guard, hiding art in basements, or (for those farther away from the war zones) transforming into a place of temporary respite for those who have fled. Fedir Androshchuk, the director of the National Museum of the History of Ukraine, is standing alongside two colleagues in an to safeguard the museum from attack or looting. He that “the museum is located in the middle of a rich cultural heritage area near three fine churches, but also close to some possible targets (the Ukrainian security service and border forces).” This proximity to potential military targets is significant from an international law perspective, [1], as the carves a “military necessity” exception out of its protections for cultural property. As by Captain Joshua E. Kastenberg, “Where a defender state harbors items of military value… in or near cultural property, the property loses its legal protections.”[2]

Androshchuk also , “there is no guarantee that the Ukrainian cultural heritage will not be plundered and transferred to Russian museums, especially given that Kyiv has a special place in Putin’s interpretation of Russian history and its roots.” The destruction of Ukraine’s cultural heritage serves the narrative of Vladimir Putin, who that Ukraine is a nation and that Ukrainians are a people. Perpetrators of the intentional destruction of cultural heritage seek to destroy the communities for which the heritage is perceived as an essential element of their own life, cultural identity, and distinctiveness.[3] Yet Putin’s assault has backfired – Ukraine itself, the West against Russia, and images of Prymachenko’s uniquely Ukrainian style around the world.

[1] Captain Joshua E. Kastenberg, “The Legal Regime for Protecting Cultural Property During Armed Conflict,” Air Force Law Review 42 A.F.L Rev. (1997)

[2] Ibid

[3] Federico Lenzerini, “Intentional Destruction of Cultural Heritage,” The Oxford Handbook of International Cultural Heritage Law (2020)

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Photo by Ståle Grut ()

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

As Toronto museums once again, their only option to stay “open” is to turn towards the digital. Toronto museums are not alone, although perhaps their struggles are more drawn-out; museums and art galleries . have also faced physical closures due to lockdown restrictions. According to , more than 85,000 museums worldwide (nearly 90% of museums surveyed) have closed their doors. In 2020, visitor figures for the world’s top 100 art museums by 77%.

In staying “open” virtually, museums and galleries have their online presence by producing virtual tours and immersive experiences for remote viewing. Many museums have made high-resolution images of their collections available online, including the Victoria and Albert Museum, whose hit a level of audience engagement in 2020. New 91��ɫ art attorney Amelia K. Brankov that museums can ensure compliance with copyright legislation while protecting against the risk of liability resulting from third-party actions by providing an appropriate “terms of use” section on their website.

For North American museums with works still under copyright, the 2017 Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums by the Association of Art Museum Directors will come in handy. However, many of the masterpieces housed by museums are in the public domain. Copyright subsists in until 50 years after the creator’s death and in the . and . until 70 years after the creator’s death (although, per the terms of the Canada-greement, Canada will bridge that 20-year gap). Yet, in many cases, museums continue to profit off of and control these works.

On the one hand, licensing deals made possible by control over artistic works offer an important source of revenue for museums struggling during, or in the wake of, mandated closures. On the other hand, some museums’ practice of reappropriating works in the public domain by claiming copyright protection for their reproductions, thereby artificially extending the duration of copyright protection. Further, museums risk being “hypocritical” when they promote the commercialisation of their collections while banning usage by others. 

In 1972, art critic John Berger , “For the first time ever, images of art have become ephemeral, ubiquitous, insubstantial, available, valueless, free.” Taco Dibbits, director of collections at the Rijksmuseum in Amsterdam, that the museum allows audiences to download high-resolution photos of its collections: “If they want to have a Vermeer on their toilet paper, I’d rather have a very high-quality image … than a very bad reproduction.”

The question remains whether Vermeer-covered toilet paper marks a problem. The debate of who, if anyone, should have control over cultural artefacts in the public domain was recently reinvigorated when the Louvre museum and Uffizi Gallery to sue Pornhub for turning works by painters Titian and Courbet into pornography without authorization. As , it is worth noting that Pornhub is at the center of of hosting and profiting off videos of rape, incest, and child abuse. Those who criticize the company, and any association with it, may have better grounds to stand on than moral outrage over pornography.        

Moral rights the right to the integrity of the work and attribution in reasonable circumstances. Museums in France claim perpetual moral rights of an author’s work. In Italy, the museums’ permission to use images from their collections for commercial purposes. On these bases, the Louvre museum and Uffizi Gallery, based in France and Italy respectively, threatened to bring legal action against Pornhub. This is the same Louvre that launched “a flurry of brand partnerships” in 2021 with brands ranging from to . This is also the same Uffizi that has taken to to depict scenes ���dzٳپ����������’s Venus running away from tourists attempting to take selfies with her. Would Botticelli approve more of his works appearing on TikToks, phone cases, and graphic tees than pornography? And the ultimate question: Who’s to say?

So, what can we expect as the COVID-19 pandemic enters its third year? The best answer I have found is : the only certainty is that nothing is certain. Despite this, the museum directors and head curators that Cheshire spoke to are confident in their ability to adapt to the changes that 2022 will bring. Director of the UCCA Center for Contemporary Art Philip Tinari , “It’s a question of pricing in some uncertainty to your planning.” Another explanation for the confidence of directors and curators going into the new year is the and the of global sales of licensed goods and services, particularly in art.

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The Guide’s primary author is Canadian . In the Guide’s acknowledgments, Pantalony recognized the instrumental help of fellow Canadian art IP expert . Art and law commenters the new guide, but that it fails to address what museums can do when faced with copyright law shortcomings born from the in counterfeit art facilitated by new technologies. The Guide openly states that it “does not argue for strong or weak IP protection” but rather focuses on how museums can manage IP while balancing their societal mandates to be centres of learning and intellectual curiosity.

Analysis: Guide Review

This 90-page document is a must read for anyone in the museum, art or cultural industries. It’s an accessible, straightforward read. Given the variability in copyright and intellectual property between countries, it acts to whet the appetite of anyone looking for a general guide to the issues of art and culture preservation within a legal context.

Moreover, the document flows brilliantly. The author takes the reader through introductory definition chapters; for example, how copyright and trade-marks are defined in a museum context. The author then goes into heavier issues such as best practices for a museum IP audit. It also covers digital rights management solutions and notes on social media and museums. It includes case studies of successful museum IP management models around the world. Finally, it lists out important commercial considerations such as distribution, licensing and co-branding with non-museum entities.

In regards to the Guide’s attempt to take a neutral position vis-à-vis the laws themselves, there is certainly no such thing as neutrality, especially when it comes to museum art and ownership. One need look no further than the or the to know that even where the law is clear, politics pervades. Additionally, WIPO in its entirety has for its western cultural and legal bias.

Another controversial issues is that assertive museum IP policies – aptly described in Canadian Heritage Information Network’s (CHIN’s) as the demise of the “” – can have a on museums as educative experiences for consumers. Growing focus on IP laws by museums increases the tension between museums and the consumers of the content; copyright versus education is one of the most common debates in intellectual property law. One of the most obvious examples of this, one that touches all of us, is the way museums choose to restrict visitor photography. Some museums believe that photos violate intellectual property, while some and  are advocating for more open photo policies.

Even with these tectonic issues underlying museum IP and WIPO, the Guide does do a fairly good job of being fair. It attempts to stand back from the fray and be as politically agnostic in its recommendations as possible. And it succeeds.

On a final personal note, it’s nice to see the Canadian authors and those that influenced the document comfortably promote our domestic museum management practices on the world stage. CHIN's Community Memories initiative for smaller Canadian museums and community centre archives is profiled. The Guide also outlines CHIN’s North America-wide studies of museum IP and management practices. And finally, the Guide profiles the Department of Heritage’s launch of the , an online museum of internet-based exhibitions.

So even amidst mild criticisms of the Guide’s neutrality in regards to the current IP laws, it’s hard not to be proud of this document, its authors, and the progressive work that Canada has done to support museums and their IP management.

Denise Brunsdon is an IPilogue Editor, JD/MBA Candidate at Western University, and researcher for GRAND (Graphics, Research and New Media) Centre.

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