Cultural Heritage rights in the age of digital copyright

COMMUNIA WG3.

Istanbul 10.12.10

Overview

In 10.12.10, the COMMUNIA WG3 gathered in Istanbul for a working meeting, with the aim of producing a set of recommendations about cultural heritage and the public domain.

The workshop aimed at exploring the problem of the interaction between cultural heritage legislation and copyright law. Cultural Heritage Protection Laws (CHPL) in some EU Member States [e.g. Italy, Greece art. 46, Law 3028/2002)] provide an additional layer of control over the access to cultural resources, often defined as monuments. Such access controls that are exercised by the state through the ministry of culture or its local/regional divisions, may impose an additional layer of restrictions over works that are otherwise copyright free.

This poses a first set of basic problems: a Finn tourist taking a photograph of the Parthenon in Athens might actually be violating Greek CHPL, especially if she's going to publish the resulting image on the Web. Same would happen in Italy, not just inside museums but also for public buildings and panoramas. On the other hand, Portugal only listed 5 buildings that cannot be freely photographed. Apparently Finland poses no restrictions on photographing of CH, be it historical buildings or artistic creations.

CHPL were mostly conceived in a pre-digital age and even those that got recently revamped (like the Italian case) apparently ignore the ease of creating digital reproductions of CH items at no cost and with no risk of damaging the items themselves. Cultural Heritage institutions (CHI) claim quasy-property rights over the artifacts they are custodians of, thus posing serious restrictions not just to personal usage, but also to the development of public repositories like Wikimedia Commons. As the recent GLAMWIKI event at the British Museum showed, some CHI are engaging with open content creators in a positive way, claiming their role of primacy by sharing the knowledge they have, rather than closing their doors and keeping the best for themselves.

In the case of licensing, the widespread distinction between commercial and non-commercial use is really harmful and poses more problems than it solves. What is particularly frustrating is that this distinction doesn't take into account the existence of the Commons and of the Public Domain, in other words content that can be both commercial and non-commercial at the same time. A photographer might want to publish her photographs of Archaic korai under a CC-BY-SA license, thus enabling any kind of reuse, from the incorporation into Wikimedia Commons to the publishing on a tourist guide or a textbook.

Here a further distinction is worth made: most CH items are in the Public Domain themselves (because they were made several centuries ago), but the same doesn't currently apply to their digital reproductions. If the r. is basically a mechanical operation, one might argue that no copyright should apply to the reproduction, too. Clearly, the distinction between a work that is creative and one that is not is going to be very dangerous in the case of photography and ultimately impossible (think about those monuments that are photographed thousands of times per day).

The recommendations we collected are aimed in the direction of clearing the nature and extent of CHR, and of maximising the benefits for the Commons and the Public Domain. CHPL should not function as property rights but rather access rights, thus posing no limitations on subsequent copies of the first reproduction once this takes place. If there is going to be a fee for commercial use of reproductions, the process has to be easy and quick. The policy for museum visitors should be “open by default” and larger institutions (or networks) might ask digital publishers like bloggers and wikipedians to link back to the original item – even though this assumes that there's a digital collection available on the Web. Licensing of such collections is beyond the scope of COMMUNIA, and CH is also explicitly excluded from the EU PSI directive. There was some work done by the LAPSI project at the last meeting in Barcelona about this, and the survey launched by the European Commission might help in changing this situation. There is a risk that any pro-public domain policy in the area of CHPL may be seen as a risk by the ministries of culture of countries having established CHPL. The need to adopt a different policy is based on the understanding that cultural heritage is protected rather than threatened by the furthering of the Public Domain.

The argument that CH may be funded through the licensing of access in order to digitise is not founded on any sound economic analysis of the benefits that countries such as Italy and Greece have from such laws. In addition, it could be that the introduction of an efficient commercial licensing scheme may still satisfy this objective, while ensuring that access to the content for no-commercial purposes remains free.

CHPLs aim at retaining control over items and buildings that they often regard as national property. This meeting attempted to identify a strategy by which CH will still remain under the control of Member States while increasing access and not canceling out Public Domain.

The following sections reflect the main points covered during the Istanbul WG3 meeting.

Understanding CHPL

The ratio legis of most CHPL is many fold. We may identify the following main objectives of such laws:

(a) To preserve: This is perhaps the key element of CHPL and relates to the ability of the state to preserve a set number of resources that are deemed as culturally important for that particular jurisdiction. In such a context, access control is the result of the need to preserve the physical cultural monument. CHPL are mainly laws related to the technicalities of preservation and do not have to do with digital versions of the cultural content.

(b) To control access: As mentioned above, in order to facilitate the objective of preservation, cultural institutions also maintain control over the access to cultural artifacts. While such access controls were originally set to address physical access issues, these very same physical access controls have gradually extended to the control of making digital surrogates from physical items.

(c) To control the dissemination of copies of the cultural artifact: Again the control of copy making has been originally limited to physical copies or analogue photographs that were to be used of commercial purposes or to be further disseminated. While such restrictions may make sense in an analogue environment, it is doubtful that they could meaningfully operate in a digital environment where the costs of digital capturing and reproduction of images and videos of cultural artifacts is common practice. By not amending the relevant laws, we face an effective criminalisation of most of the touristic activities, e.g. in archaeological sites.

(d) To achieve return of investment/ non-endorsement/ attribution: Controlling access to the reproduction of cultural artifacts is also justified by the need to recuperate some of the costs of investment for the digitisation and/or publishing of such artifacts. It is also closely related to the need to achieve a minimum level of quality and control in the image of the culture of a certain country and to properly attribute/ document the relevant artifacts. For all these reasons the dissemination of cultural information is controlled by the state which gives specific licences for the reproduction of cultural artifacts, especially when such reproductions are to be further disseminated and not just used by the end-user. As mentioned above, these policies are increasingly difficult to be managed as the mechanisms of control are very expensive or there is no enforcement of the law prohibiting further reproduction of content without the permission by the ministries of culture of the relevant countries.

Issues for consideration

During the meeting the following issues have been identified as of key importance to consider when making any policy proposal with respect to CHPL and PD:

• Ensuring preservation of cultural artifacts and information

• Ensuring that there is a minimum quality level of the disseminated information

• Differentiate between different types of use

• Reduce transaction costs when/ if fees are required

• Do not limit public domain

Policy Options

By the end of the meeting a series of options were discussed as to how the issue of overlapping CHPL and PD could be resolved. The following options were investigated:

(a) Abolish CHPL: this is the most radical and at the same time simplest solution. The abolition of CHPL with respect to the informational aspects of cultural artifacts would ensure that no additional restrictions to PD are imposed. This solution is, however, potentially difficult to implement due to the reluctance of national legislators to accept a solution that would loosen the control they currently exercise over the flow of cultural information and the potential loss of revenue from the sales of commercial licences.

(b) Harmonise CHPL: the main benefit from such an approach mainly relates with the uniform treatment of access to cultural information across the EU. The problem with the harmonisation solution is that it is very unlikely that the standard would be one of no-CHPL but rather one of introducing restrictions even in countries where such legislation does not exist.

(c) Gradual transition towards less and more rational restrictions: the idea behind this approach is that the system of CHPL will gradually adopt to the practice of user generated digital cultural content through a series of steps. These may be described in the following road map:

C1. Make the permission process easy and cheap: the current permission obtaining process is cumbersome, mostly managed off-line and with no appreciation of the way in which web 2.0 services operate. The suggestion is to make registration of usage of images voluntary and easy and the payment for commercial use automated, standard and easy to use.

C2. Ensure that:

• there are exceptions in relation to non-commercial uses

• whenever attribution or non-endorsement is placed as a condition this is supported with technical means.

C3. Use soft law: do not impose additional burdens on end users regarding attribution, non-endorsement or any similar provisions but rather introduce soft norms that are supported by easy to use technological applications

C4. Clarify the nature of personal use of digital information:

• personal use should include dissemination over social networks and essentially amount to no-commercial use

• considerations regarding the effects of personal use to commercial exploitation of material should not appear in this context

• the rights appearing in CHPL should not be treated as absolute rights, i.e. once the permission is given to the first person, there should be no control over the further dissemination of cultural information (exhaustion of the rights after the first permission is granted)

C5. Use CHPL to strengthen and protect the PD:

• CHPLs could be used in order to mark and protect the PD, if the original permission is accompanied by an obligation to mark the work as a PD work (e.g. with a public domain dedication). This was perhaps the most important conclusion of the meeting: if the member states would like to preserve their CHPLs, they should take positive steps to ensure that such material that is free of any copyrights is also marked as PD.

C6. Use CHPL to ensure more liberal licensing:

• In the case that CHPL subsist on copyrighted works, these should be licensed under CCBY or apply CC Zero.

• In that sense the provision of any permission by a cultural heritage institution should be linked:

  (a) with transfer of full copyright ownership (if any subsists) to the cultural institution that should then release it under a CCBY or CCZero licence; or

  (b) with direct licensing of the work under a free licence.

• If no transfer of ownership or free licence is used, then the fee for granting permission to disseminate cultural content should increase.

C7. Differentiate between institution issued pictures of cultural artifacts and permission to create new images:

• in the first case, the principle should be that the content that is PD should remain PD and the PDD should be used to clearly mark PD works. If licences are to be used, these would have to be either in the form of CC Zero or an CC_BY licence.

• In the second case, see C6

Conclusions

The problem of interaction between CHPLs and PD is an under-researched issue of great importance for Europe that is actively digitising cultural artifacts or provides access to cultural resources.

CHPL create an additional layer of rights that is incompatible with the PD and great emphasis should be placed in the following areas:

• CHPLs have to be in accordance with social practices of user generated cultural information productions

• PD should not be unnecessarily compromised

• If there is a permissions system, then this should be linked to:

  (a) the marking of all pictures as PD

  (b) the licensing of all original pictures with the most liberal licences (BY or non-NC licences)

  (c) the condition for a fee should not be the commercial or no-commercial use of the work but rather whether the licence under which it is disseminated is an All Rights Reserved Licence or a licence that withholds commercial rights.

  (d) the more restrictive the licence under which the digitised produce is disseminated the more expensive the permission should be.