The purpose of this article is to consider whether the creation of three-dimensional reproductions by UK museums can aid them in fulfilling their public mandate and whether current copyright law supports or hinders this process. Museums in the UK have a tripartite public mandate of access, preservation and education which they are seeking to fulfil in new ways, one of these being through the use of three-dimensional reproductions. This article will consider whether current UK copyright law permits museums to create three-dimensional reproductions of objects in their collections and, furthermore, if they can subsequently secure protection for their copies. (1)
Museums have a long and rich history as the custodians of cultural heritage. They are trusted with national treasures and objects of incalculable value which they hold, not only for the contemporary public, but also for future generations. The United Kingdom is renowned for its internationally celebrated cultural institutions. Indeed, three of the top ten most-visited museums in the world are in the United Kingdom. (2) Arts Council England has declared the collections held by UK museums to be "an unmatched cultural asset" and said it "is essential the collections are developed, celebrated and protected so they can be enjoyed by as many people as possible". (3) This statement succinctly highlights the three core elements that constitute the tripartite public mandate governing UK museums and their collections: access, preservation and education.
Museums are seeking new and practical ways of fulfilling the three limbs of the public mandate, including through the use of new technologies, and in particular, digitisation. Digitisation is the process of transforming two- and three-dimensional objects into a digital format. While museums have embraced digitisation, they have, to date, predominantly used it to create two-dimensional copies, such as digital photographs of objects to upload onto their websites, they have not fully realised the potential of this technology to create three-dimensional objects. Three-dimensional reproductions, however, are nothing new with copies having "always been fundamental to museums" and "facsimiles [sitting] comfortably alongside original works". (4) Yet, with the rise of cutting-edge technology such as digital scanners and 3D printers, museums are beginning to reconsider the potential of three-dimensional reproductions. Although the traditional three-dimensional reproduction methods such as plaster casts are by no means redundant, digitisation, coupled with recent developments in technology, is introducing pioneering techniques which have the potential to radically change the sector and the way in which the public interacts with the collections.
The UK Government has fostered digitisation, making it a strategic element of its policy, (5) in particular, in the cultural sector. This has encouraged museums to dedicate finances and resources into digitally reproducing their collections. As will be demonstrated in this article, three-dimensional reproductions can widen public access to collections, encourage and aid learning without jeopardising the objects and, provide proper preservation of delicate items. A major obstacle for museums when creating reproductions however is the complexity and inconsistency of the law in this area. A museum's ability to create a reproduction, and the subsequent protection of it, is to a significant extent dependent on whether it can utilise copyright law to its own advantage. As will be shown in this article, copyright law surrounding reproductions is not straightforward.
This article will explore the extent to which museums can fulfil their public mandate through the use of three-dimensional reproductions and, whether copyright law supports or hinders them in the creation, and subsequent protection, of such reproductions.
THE TRIPARTITE PUBLIC MANDATE
"Real museums are places where Time is transformed into Space" (6)
Museums play a notable role in contemporary society, having a wide range of responsibilities towards both their collections and the public. Emmanuel N. Arinze, President of the Commonwealth Association of Museums, in a public lecture in 1999 declared that the:
traditional role of museums is to collect objects and materials of cultural, religious and historical importance, preserve them, research into them and present them to the public for the purpose of education and enjoyment. (7) A similar sentiment was voiced by Neil Mendoza in his 2016 independent review (8) of UK museums, where he stated that museums:
use their collections and knowledge to support society in direct ways. They bring people together and promote community cohesion; they support learning, tailoring their programmes to the curriculum and local education priorities; they assist scholarly research through partnerships with universities; they can promote better health--for example, using collections to work with patients with mental health issues; and they employ and nurture a wide range of skilled people. They also offer spaces where we can experience beauty and understand our place in the world. (9) Both these statements reference three core principles which arise repeatedly when the role of museums is examined: access, preservation and education. These three principles are the cornerstones of the tripartite public mandate for publicly funded museums in the United Kingdom.
Similarly, these three core principles can be seen to be promoted and highlighted by organisations that set the ethical guidelines for museums. The International Council of Museums (ICOM) in its Code of Ethics for Museums (10) states that museums "have particular responsibilities to all for the care, accessibility and interpretation of primary evidence collected and held in their collection". (11) In addition, the Museums Association defines museums as "institutions that collect, safeguard and make accessible artefacts and specimens, which they hold in trust for society". (12) Undoubtably, the tripartite public mandate of access, preservation and education, can be viewed as the foundation upon which UK museum practice and management are built. (13)
Museums, however, are under greater strain than ever to fulfil this mandate, with increasing pressures both nationally and internationally, at a time when funding is being drastically reduced. (14) As we shall see, one avenue which museums are exploring to achieve this is through the use of digitisation.
Digitisation is as an important part of UK Government policy, with new technologies and digital education being extended in all sectors with the hope of rendering the UK a leader in the digital revolution. (15) The Department for Digital, Culture, Media and Sport's ('DCMS') White Paper, published in March 2016, resulted in the 'Culture is Digital' project. The White Paper detailed the ways in which the Government wants to utilise technology for the benefit of cultural institutions stating that "technology and improved digital infrastructure has a critical role to play" and digital technology has "the potential to transform access to culture for everyone, everywhere". Matt Hancock, the former Secretary of State for DCMS, said the combination of UK technology and cultural sectors was "the ultimate power couple". (16) With the United Kingdom having over 48 million internet users (17) it is clear that the virtual world is becoming an important arena and one in which museums need to fully participate. (18)
These figures are particularly relevant in the context of access to museum collections. Although there were 49.8 million visits to DCMS-sponsored museums and galleries in the financial year 2018/2019 (as compared to 123.2 million unique website visits in the same period), (19) museums are coming under increased pressure to make:
more of their collections more available to more people, to increase the numbers and diversity of their audiences, to widen public access and social inclusion, to engage more fully with their local communities. (20) ICOM states that museums "have a particular responsibility for making collections and all relevant information available as freely as possible". (21) Digitisation is a crucial, and often overlooked, means of facilitating such access. Indeed, more people can be reached by the Natural History Museum through its digital social media content in one month than visit the museum in a whole year. (22) The Culture White Paper states that digitisation "will give millions of people who cannot physically visit a collection or performance the opportunity to experience the content remotely". (23)
Aguerre and Cormier assert that most people first encounter a work of art through some kind of reproduction and, therefore, "the proliferation of images of works of art, in fact, has become a significant driver for going to museums". (24) Reproductions are not only able to widen accessibility, they can also encourage public engagement with the original object. The artists Al-Badri and Nelles made a covert, complete, three-dimensional scan of the Head of Nefertiti in the Neues Museum in Berlin. They argued that in doing this they were furthering public access, as they believed the Museum was not fulfilling its mandate in this regard. The full digital scan can be found online (25) and, for anyone with the use of a 3D printer, a near-perfect reproduction can be easily created outside the confines of the museum.
Three-dimensional reproductions can also aid museums with preservation. In many cases museums hold millions of objects, each of which must be protected and conserved. One example is that of the Museum of Ethnography in Sweden which had in its collection a Haisla G'psgolax Pole which had been carved in the nineteenth century by members of the Haisla people in the north of what is now British Columbia to "commemorate [an] interaction with the spirit world"...