Viewpoint... The construction of museum digital intellectual property management rules under the background of cultural digitization strategy.
Published:
2023-05-16
"Cultural self-confidence" is an important part of strengthening the unified system of "four self-confidence. General Secretary Xi Jinping pointed out that it is necessary to comply with the development trend of digital industrialization and industrial digitization, accelerate the development of new cultural formats, transform and upgrade traditional cultural formats, and improve quality, efficiency and core competitiveness. Cultural digitization has become a national strategy. In 2022, the general office of the CPC Central Committee and the general office of the State Council issued the opinions on promoting the implementation of the national cultural digitization strategy, which pointed out that "by 2035, a national cultural big data system with physical distribution, logical connection, fast link, efficient search, comprehensive sharing and key integration will be established, and the panoramic view of Chinese culture will be presented, The digital achievements of Chinese culture will be shared by all people." In the wave of cultural digitization, the digitization of museums should be among them.
The digitalization of 1. museums is the ultimate goal of museum development-a deeper collection of cultural relics and a wider spread of culture
The "Museum Regulations" stipulate that "the museum referred to in these regulations refers to a non-profit organization that collects, protects and displays to the public the witnesses of human activities and the natural environment for the purpose of education, research and appreciation, and is registered by the registration management agency in accordance with the law." It also shows that museums, as non-profit organizations, should realize two basic functions, namely, "protection" function and "display" function, but there are always contradictions between the two in a specific time and space. Too much display is not conducive to the protection of exhibits, and too much protection can not achieve the purpose of display.
The museum as the management party must achieve the balance between the two. Digitization can solve the limitation of time and space and realize the full utilization of digital resources of museums without changing the protection environment of cultural relics. Transparent OLED, real-life three-dimensional technology, holographic projection, somatosensory interaction, mixed reality AR and other technologies can all give users a sense of immersion, but they do not need to touch the cultural relics in the collection, or even eliminate the boundaries of time and space, so that they can "enter the museum" at any time. In this way, the perfect balance between "protection" and "display" is achieved, so that the cultural relics can be collected more deeply, the culture can be spread more widely, and the cultural confidence can be more confident.
Analysis of Digital Intellectual Property of 2. Museum
The digitization of museums is an inevitable trend. Eight ministries and commissions including the Central Propaganda Department and the State Administration of Cultural Heritage jointly issued the "Guiding Opinions on Promoting the Reform and Development of Museums" and proposed to "strengthen cooperation with financial media and digital cultural enterprises, innovate digital cultural products and services, and vigorously Develop museum cloud exhibitions and cloud education, and build a museum communication system that integrates online and offline."
At present, the total number of museums in the country has reached 6183, ranking among the top in the world, and the number of museums has doubled in the past ten years. According to the announcement of the State Administration of Cultural Heritage, the Shandong Museum has 144181 cultural relics (sets), including 48895 precious cultural relics (sets). This would be a huge cultural treasure considering the state of the country. However, cultural dissemination is related to the protection of intellectual property rights. Only by studying the rules of intellectual property protection in the process of digitization can we prevent disputes over ownership and compensation caused by disorderly dissemination and frame the legal boundary scope of the legal and free dissemination of culture.
Any intellectual property right is a monopoly right with a time limit. Therefore, for the collection, first define whether there is any intellectual property right on it? If so, what kind of intellectual property right it is? Who is the right holder? What kind of rights does the right holder enjoy? What is the status of the museum's intellectual property right in the process of producing, transferring and licensing exhibits? Whether it has the right to license? These questions are very complicated. If we consider the protective reproduction, copying or photography and other digital methods based on the museum's collection of exhibits, the problem will be further complicated.
For example, the Shanghai Museum, as a well-known museum of ancient Chinese art at home and abroad, has a collection of dozens of ancient books of the Song and Yuan dynasties. Most of these ancient books are rare and rare, or even isolated. Obviously, these literary and artistic works themselves have become public resources, and the Shanghai Museum does not enjoy copyright, but these copies obviously have greater property value based on their rarity. If a small amount of reproduction is protected, the reproduction and printing of national cultural relics must be approved by the cultural relics management department at or above the provincial level, and the first-level cultural relics need to be approved by the State Administration of Cultural Heritage. Furthermore, if the first-hand digital resources are obtained through the digital museum and become audio-visual "products", the museum will have neighboring rights as the completer of these "products. Although it is called a neighboring right, it does not completely rely on the premise that the copyright of the original work must exist effectively. In the process of digitalization of the museum, there is actually a right of "audio and video producer". According to the Copyright Law, "audio and video producers have the right to permit others to copy, distribute, rent, disseminate to the public through information networks and get remuneration for their audio and video products. The protection period of the right is 50 years, as of December 31 of the fiftieth year after the first production of the product." Of course, if the museum is cooperating with another party or entrusting to complete the digitization, the right of the digital product should be determined by the right holder according to the contract with the partner, and if there is no agreement, the ownership shall be confirmed according to the rules of co-operation or the rules of presumption of entrusted works.
In addition, some museums only enjoy the right of exhibition, but the copyright owner or his heirs are still alive, and the copyright of their works is still within the protection period. For example, Mr. Wu Guanzhong was born on August 29, 1919 in Yixing County, Jiangsu Province, and died in Beijing on June 25, 2010. His works are still under protection by his heirs to exercise the corresponding rights. But Wu Guanzhong donated a large number of his works to the museum before his death. According to incomplete statistics, Wu Guanzhong and his family have donated as many as 1,000 works to major public institutions, which is as large as 10 billion based on the current market value. The original of these paintings are collected by the museum, but they only enjoy the right to exhibit in the property rights of the works, and have no right to exercise other rights. Although the heirs enjoy the property rights of other works, they do not have the original of the paintings. In the case of digitalization of collections, even NFT, new disputes will arise. How to exercise this right and who should belong to it. Is digitization an exercise of the right to exhibit the original work, or does it involve the property rights of other works? If it is characterized as an audio-visual product, the permission of the owner of the original work must be obtained, and such disputes will continue to increase with the digitization process of the collection on the shelf.
From this point of view, in the process of cultural digitization, the rules of intellectual property protection are insurmountable obstacles, otherwise the potential risks will continue to increase, especially the development of cultural and creative products derived from museum collections, which will further stimulate its economic attributes, such as everyone The well-known "Forbidden City" and "Yonghegong" online celebrity products have increased the risk of disputes under the stimulation of huge market demand and interests.
Construction of Digital Intellectual Property Protection Rules of 3. Museum
1. Register the collection analysis source, ownership, rights restrictions, the formation of data resources.
Determine whether the origin of the collection enjoys intellectual property rights, whether it is a copy or an original work, and whether the rights are still within the validity period, and then complete the inventory and record of the assets for judgment in the digitization process, and establish an intellectual property management database in the process.
2. Prejudge whether the collection exhibits will form audio-visual products or audio-visual works after digitization, and complete the confirmation and registration of the ownership of the works.
If the digitization of the exhibits in the collection establishes a virtual scene and integrates cultural elements to reproduce the cultural scene, it is a re-creation process to form an audio-visual work, and the museum of the audio-visual work enjoys copyright as the completion party. However, if it is only a rescue copy, audio-visual products will be formed. The rights of the two are not the same, and they belong to the category of copyright and neighboring rights.
3. Build a complete high-definition electronic image database, and further realize the overall digitization of the museum on this basis.
In this process, for the rights of audio-visual products or audio-visual works, copyright registration or time stamp or other means of deposit shall be completed to prove the right holder, the time of completion and the content of the work, so as to provide further protection of intellectual property rights. In this process, attention should be paid to distinguishing the different characteristics of job works, commissioned works, and cooperative works, and confirming the intellectual property rights holders and the rights and benefits they enjoy by agreement or confirmation, so as to reduce legal risks.
4. Strengthen the management of cultural and creative derivatives, design a market cooperation model in line with the purpose, and prevent disorderly market competition.
The state encourages the development of cultural and creative products in the process of cultural digitization to further support the development of the museum's cultural industry. As a museum, it should make full use of this policy and make regulations and plans for the development, design and promotion of cultural and creative products in advance, such as the development of cultural and creative products designed by the museum itself and the logo or cartoon image of the museum, negotiations and arrangements for trademark application, copyright registration, ownership confirmation of cooperative works, market sharing and maintenance should be carried out in advance.
5. Standardize contract management and embed intellectual property protection clauses in relevant contracts
Whether it is digital production contract, entrusted design contract, cooperative development contract, market promotion contract, market rights protection processing, etc., it is necessary to further standardize contract management, and embed intellectual property protection clauses in relevant contracts, because the most valuable product in the process of museum digitization It is intellectual property, intellectual property protection is unfavorable, all contracts cannot play a normal role, and the risk is great.
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