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20 May 2022

How much is too much copyright? A study on open access to digital cultural heritage collections in the UK

By Amalyah Keshet

According to a recent announcement, the report, A Culture of Copyright: A scoping study on open access to digital cultural heritage collections in the UK was commissioned by the Towards a National Collection  programme (TaNC) to better understand the ways in which open access shapes how the UK’s digital cultural heritage collections can be accessed and reused. The study was undertaken by Dr. Andrea Wallace in 2021; the recommendations proposed are hers, and they form part of the evidence that TaNC continues to gather to determine its future recommended policies.  

Dr. Wallace has produced a tightly focused discussion of where the UK Galleries, Libraries, Archives and Museum (GLAM) sector stands in the global open GLAM landscape, and what potential there is for a digital national collection.  The report includes a review of relevant case law and policy developments in the UK and elsewhere, as well as a review of scholarly writing on copyright and open access to digital heritage collections.  It is detailed, thorough, and groundbreaking, consolidating  previously scattered evidence and thinking, making it important even for veterans in the field.  

“The findings indicate there is no consensus in the UK GLAM sector on what open access means, or should mean. There is also a fundamental misunderstanding of what the public domain is, includes and should include. Indeed, staff perspectives and GLAM policies can vary widely, even within a given institution. Accordingly, this study aimed to discern and outline what support is necessary to address systemic barriers to open access, starting with copyright itself.”

The problem addressed has been around for decades: museums sometimes engage in overly-restrictive copyright licensing.  On the one hand, management pressures even the smallest income-producing department to earn as much as possible and to “protect our IP” vigorously. Requests for use of images or other original materials can arrive at a rate other businesses would envy,  accompanied by unique specifications and complications, urgent deadlines, and demands for discounts.  Potential donors, when approached for support for an image digitization and management  project, ask why “the government” isn’t paying for that. In the rarest of best-case scenarios, an image licensing department might be able to pay for itself – covering man-hours, computers, scanners, software, but probably not server storage, accounting, legal advice, and certainly not the actual professional photography upon which the whole enterprise is based.  

In fact, producing that highly specialized professional photography and managing those hi-res image files (authoritative captioning, metadata entry, file migration, etc.) and supplying them (with bespoke licenses and advice on third-party copyright search) also serves the museum’s own internal needs – which require more man-hours.  In the end, the image licensing department cannot support itself — nor should it.  It can outsource the business to a photo agency or picture library, it can go open-access – but both paths require considerable setup, maintenance and development outlays.  As this report puts it: 

“…there is widespread incapacity to engage [with Open Access] due to shortfalls in financing, labour, staffing and technologies. Participants stressed the incredible amount of work that goes into preparing collections for digital systems even prior to the incredible amount of work required for publication and for open access. As one commented, ‘Open access is hard too. For something that seems simple, it’s really not.’ ” (Page 8)

That said, the public domain is the end goal of the temporary grant of economic monopoly rights known as copyright.  It’s the other half of the copyright “bargain.”  At some point copyright expires, works enter the public domain and anyone may use them, build on them, and create new copyright-protected works. Museums and other cultural heritage institutions are just one valuable resource this process, often facilitating it by creating and distributing the means (digital image files, for example) by which the public domain can give expression to new works.  

“…this report considers a wider audience than TaNC and its projects, and it identifies barriers that reinforce a culture of copyright around the UK’s cultural heritage collections in the public domain, quite literally, at the public’s expense.”

This study also aimed at “understanding how the UK GLAM sector fares in the global open GLAM landscape, and what the potential benefits of the UK digital national collection are.”  When looking at other countries it is important to recognize the gap between those with government-supported cultural heritage institutions and those without, those with non-profit cultural institutions depending heavily on earned income and philanthropy.

Section 5.3.1, The impact of copyright, relates extremely important input from GLAM professionals working in this area: 

“Interviews revealed examples of commercialisation goals impacting what gets digitised, used for research projects and published online…. 

Historical practices in collecting also decrease the likelihood of older collections containing the artistic contributions of women and people of colour…

Copyright clearance is necessary to conclude collections are in the public domain. The expense of copyright clearance in preparation for digitisation can impact which collections are digitized…  

Copyright’s long term of protection (author’s life + 70  years) results in less diverse digital collections when collections are selected for digitisation based on their public domain status… “ (page 95)

One of the many striking observations: “The likelihood that copyright arises in 2D reproductions of 3D works (e.g., a photograph of a sculpture) renders openly licensing photographs of 3D collections a policy-based decision. This affects 2D reproductions of sculptures, as well as what cultural heritage GLAMs label as ‘craft’ and ‘antiquities’ which typically have been the creative forms of expression of women and people of colour. The impact can be to further reduce diversity in representation among digital collections published online.” (page 95). In this context, the report brings up the UK Intellectual Property Office 2015 Copyright Notice (page 23).  

Importantly, “[t]his study has identified the extent to which UK GLAMs engage with open access, how far there still is to go, what is required and what is at risk. The key takeaway is that the rights-related barriers are overwhelmingly self-imposed by GLAMs. It is within the sector’s control to change this culture of copyright and commercialisation. Based on this, the following recommendations are made…”  (pages 105-110)  and are summarized here:

Endorsement of the UK IPO’s Copyright Notice. This will support the retroactive application of CC0 to non-original reproduction media generated around public domain collections.

Adoption of an open licensing requirement for future outputs. This will support the prospective application of CC0 to non-original reproduction media generated around public domain collections. This should include obligations to publish original materials produced with infrastructure funding as CC BY to enable their widest possible reuse while ensuring GLAMS receive attribution for their work. This approach will fill gaps left by legal grey areas and shape good practice across the GLAM sector. It aligns with The National Lottery Heritage Fund’s new policy.

A programme for long term public domain, copyright and open access support. TaNC and AHRC can provide important leadership in this area and coordinate with other UK funding bodies and associations to develop a programme to provide long term support and improve the landscape for a digital national collection. This might include access to funding and community support.

New research on ‘future proofing’ open acces.  New business models around open access.  This might enable networks with SMEs around digitisation services and new business models that support real innovation around the public domain. New opportunities await when access is not mediated and controlled by institutional platforms.

Finally, it is important to highlight that significant portions of the UK’s collections cannot be made available under open licences or public domain tools due to the rights subsisting in the underlying work. To aid this understanding, this report recommends integrating user-centric goals into research, communications and technologies. Research itself is for the public… Technologies should allow users to search by licence, download high quality assets with rich context, and support reuse. This will help bolster understandings of copyright and open access among GLAMs and their publics, as well as understandings around what cannot be made open access with respect to reuse purposes.” 

More on digital heritage and the public domain:

Naomi Korn Associates offers a range of services which deal with some of the issues highlighted in this report, such as policy development, training and rights clearance. Contact us at info@naomikorn.com to find out more about how we can help you.