Keynote on copyright fragmentation and museum image licensing: transcript

Key points

• Copyright has expanded over recent decades, restricting access and hiding materials away, and the speaker expects further fragmentation of rights.
• Creative Commons is described as a selective assertion of copyright, where owners limit which rights they claim.
• Open access resolutions, such as the NIH requirement and those at Harvard and other universities, let authors deposit articles in repositories while still publishing with traditional publishers.
• The Bridgman Art Library decision held that a true-color photographic copy of a two-dimensional artwork lacks the creativity needed for copyright.
• His study of US museum licenses finds terms on reproduction, modification of images, and third-party rights that go beyond what that case suggests.
• He asks whether such licenses redefine or imitate fair use, and what they show about the limits of copyright and the role of contracts.

Chapters

1. 0:03Welcome and introduction of the speaker
2. 1:46Conflict over copyright, shown by a concert story
3. 4:22Fragmentation of copyright and three developments
4. 6:54Creative Commons as selective assertion of copyright
5. 8:39Open access resolutions and repositories
6. 13:21Museum licensing and the Bridgman decision
7. 17:58Issues found in museum licenses
8. 21:24Examples of museum license terms and fair use
9. 24:30Conclusions on the limits of copyright and licensing

Full transcript

0:03Thank you very much for coming. Welcome to the evening portion of the show, which is in partnership with the MCG meeting, which was on today over at Museum of London. How many of you have come up from the Museum of London today? Nice, thank you. And how many were here today? Morals. And how many came to neither and were just here because it was really interesting and everybody saw it? So thanks very much for coming.

0:37We have further ado on introduce Dr. Kev Cruz, who I met on Twitter about a year ago, coming across a paper that he wrote called The Reach and Limits of Copyright Licensing in Art Museums of America, with that effect, which I found quite fascinating. So fascinating that it broke my rule after having graduated from university, when I decided that I would never read anything academic again. And proceeded to sit down and read it and annotate it and generally add it so interesting and decided to try and find this fellow.

1:11And Dr. Kenneth Cruz is the director of the Copyright Advisory Office of Columbia University in New York, a very esteemed institution. And surprisingly enough, considering the credentials Kenny brings to the job, he's actually a nice guy. You'd expect, given the breadth and depth of the credentials he has, that you'd be a very stuffy fellow, but he's not at all. He's a very nice guy and he's been very generous in coming here and presenting to us this evening all the way from New York.

1:46Thank you. Well, thank you, Liam. I don't know if I can live up to that introduction, especially after dinner. and and so it's it's it's always a challenge and so thank you thank you Liam thank you Twitter thank you Wikipedia thank you British Museum thanks to to all of you for being here today and and really that you heard me say a brief intervention during a discussion that we had early in in the day in which I said something about how how a lot of what we're struggling with is evidence of conflict and there's so many ways that we can begin to describe that conflict.

2:34That relates to the way we use materials, the way we create materials, the legal rights that are vested, associated with those materials. And then as soon as I got done saying that, I realized that just two days ago I experienced that sort of creative user, enjoyer, spreader kind of conflict that I was describing. My wife is with me, and just a couple of days ago we were at a music concert, and the four different performers were up there, and then the second one was up there, and I was really eager, and I got my camera out to take a couple of pictures, and I got poked by the security guard.

3:18no pictures no pictures I thought well you know taking pictures is part of the fun you know and having souvenirs to take home and then my wife very nicely reminded me that in this microscopic print in the back of the tickets it also said no no pictures so but I wasn't alone in the building and violating the rules and seeing where it might get me and at least I didn't go to jail the the but then the real conflict was a little bit later in the show one of the other performers was up there who said here's what we all want you to do stand up dance anytime you want and take pictures And now it's fully, boldly into the microphone. And at that point, I was conflicted. Do I take the pictures because that person says so? Do I not take the pictures because really that security guard had his eye on me from about a few feet away? What do I do? And what's the status of the pictures that I took when I didn't realize I was taking pictures against the rules?

4:22and what's the status of the pictures if I took pictures knowing it was in violation of the rules just if just theoretical so so sort of theoretical and so so conflicts conflicts conflicts everywhere and so really this this clash and I think we can call it conflicts we can call it clash we can call it a number of things, you'll hear me talk about fragmenting. Fragmenting of copyright. Where are we going with copyright? A few brief words. That where are we right now? What's the status quo of where we are? Well we're looking and we have seen in over the last couple of decades expanded copyright protection.

5:12Limited access, means of restricting uses, escalating prices. And the result, one of the byproducts of this is a lot of materials, call them archives, are hidden away and that we're unable to really retrieve them and benefit from them and share them. But what I see is, and somebody did ask me the question just hours ago, what do I see is the future of copyright? Well, that's a big loaded question. But part of what I do see is an extension of what we're already seeing, this fragmentation of copyright.

5:49So when we talk about what's the solution to some of the struggles that we have, there's no one solution because what I see is a fragmentation where rights and transference of rights and different ways of managing rights and different restrictions are all being fragmented. Different players, different contributors, different users, different types of works being managed, delivered, created, used in different fragmented ways.

6:21And in that mix, tonight there's so many things that we could say, but I'm going to choose to focus on three things, three developments, three developments that I see as emblematic. Of a transformation of the way we're managing that fragmentation of copyright law. Now, some of this will be well known to you. Some of it may be new to you. Some of it I'm going to move through very quickly. At least the third of these I'm going to spend most of my time on.

6:54One is creative comments. We've talked a lot about that today. And I see that as a selective assertion of copyright. The discussion today where we talked about how it is an exercise of rights is really spot on. It's a selective assertion of copyright. I see as a second development a movement toward open access. And what is that? That's a decision as a group to collectively share our copyrights.

7:25And then I see museum licenses and policies, an area where I'm doing research study that Liam kindly mentioned, and I see that in many respects, for good and for bad, as a redefinition of copyright. Let me say a little bit more about each of these. Creative Commons is the first of my topics. A selective assertion of copyright. It's a tempering of copyright. It's a way of saying it's mine, but let me limit what I am asserting of the bundle of legal rights that I have, and let me clarify what my interests are.

8:06You know, we've talked a lot about the attribution right as being one of the leading rights. And with respect to different works, different individuals may say, well, I want no derivatives. I want non-commercial only. Different ways of defining exactly what you want from the copyrighted work that you own. And it's, in effect, a selective assertion, but it's a selective then opting out of the legal system.

8:39That you're only claiming certain rights and limiting the reach of others. We know about Creative Commons, so let me say something I don't think we've talked about at all today. And that is open access and open access resolutions. And by this I mean the resolutions that many institutions, particularly universities, but also research institutions like the Wellcome Trust just down the street, Are saying that as a collective, we are going to choose to make our works, either all of the works we create at this university, whatever that might be, or all of the works that we fund through research grants, and choose to make them available.

9:24Well, this is clearly rooted in technology. Organizations could have said these words decades ago, but it wouldn't have meant much, because today with technology, we're able to actually do it, to create repositories and make rich content available via the Internet, of course, to anybody who's connected on the Internet worldwide. Well, in the United States, very much like the Wellcome Trust is a funding agency, the NIH, the National Institutes of Health, major source of research funding at universities, now requires, is required under law, that peer-reviewed research articles that come from NIH funding must be made available through a particular repository.

10:18And, in recent couple of years, Harvard, MIT, Duke, the University of Kansas, a variety of major, large universities in the U.S., in the U.K., in Europe, in other parts of the world, have joined in the effort of adopting resolutions that say, as a collective, as all of us here at this university, we agree that we'll put our research materials, our research articles, available online for the whole world to find.

10:53And that's a way of saying, I own the rights, and it's my exercise of the rights to make them available. Moving ahead, though, and by the way, you can find a lot of good information about this on different sites, And this is the opening page of the office at Harvard that manages its resolution and the consequences of it. And clearly you can ask any questions about that when we open it up. But what I also want to say about repositories, and that means that the Harvard repository where faculty deposit their articles, The PubMed Central, where authors who get research funding from the NIH are required to deposit copies of their articles.

11:45That they are, for something that is of great interest to us in this room, they are, those repositories are making that content available at the choice of the rights holder. But this is content where the rights holder also has a strong interest in publishing that work through a traditional, well-established publisher. So these institutions that are advocating and supporting these repositories are not undercutting publishers, but they're saying that the copyrights can be managed in a way that allows for simultaneous use, deposit here and publish there.

12:35It's a fragmentation of the copyright. It's a more nuanced understanding of the set of rights that goes with the copyright and using each of those pieces differently. And we have institutional repositories. We have legally mandated repositories. We have discipline-based repositories like Archive that's used heavily by physicists, by mathematicians. And other scientists. And then we have journals that are full open access. It's another form of saying, this is a, if you will, a type of repository. A place where certain works can be made publicly available.

13:21My third topic is museum licensing. And I hope that the British Library doesn't mind my using their coffee machine as a knowledge mill. It's all the world's knowledge. And what we hope, as a cultural institution, that we have content that goes in, but it goes in and it's used and it's processed for purposes of really educating people, informing people as broadly as is appropriate, which is usually as broadly as possible.

14:01But what I'm struggling with in this third topic about the management and fragmentation of copyright is that often we have content in and we sometimes have restrictions out. The topic of my study about museum licensing is one about what are museums doing. We talked a little bit this morning about the ability to enter a museum and take a picture, your own picture, of something that's in that museum. Painting, relic, whatever it might be.

14:38This is not that topic. This is the downstream use of the image acquired from the museum. This is now how can people use that image that's provided by, supplied by, the museum. And that's what this study takes a look at. And from a copyright perspective, the basic problem really is one of, is that work protectable at all?

15:08Well, we have a court decision in the United States that's been debated widely called Bridgman Art Library. It has British implications. And it is a decision where the court ruled that a true color, straight, two-dimensional photographic reproduction of a two-dimensional artwork. That that photographic reproduction does not have sufficient creativity to be eligible for copyright production.

15:43The underlying painting may or may not be copyrighted. That's one set of questions. But under this court decision, the photographer does not have any copyright in that work. Now you can see it would all change if this were three-dimensional work where we're choosing the angle and the lighting. or even a two-dimensional work where you played with the lighting and played with the color. That would be something different. But this is true color photographic reproduction.

16:13And the court said no protection in that at all. Well, my topic in this research project about the analysis of museum policies is really rooted in asserting control and setting terms of use. with respect to a photographic image, and therein is the problem. Does the law establish rights at all with respect to that art image?

16:44And if it does, even if it does, who holds the rights? A photographer, a museum, is that one and the same? What are the issues, and what's the scope of that protection, and what might this tell us about the appropriate role and the limits of licensing? Now, some of these basics of the law I've already summarized in my discussion. So, I want to just take a quick look at a few examples. Now, this is all very risky because, of course, in a short amount of time with a few examples, it's going to feel, I'm certainly going to feel, like I'm overgeneralizing.

17:21But we need to just tear into a few examples and see what's happening in this world of licensing. Taking a look at an array of licenses, and by the way, I should hasten to add that my study focused on selected museums across the United States. So I'm happy to say that none of what I'm going to say has anything to do with the British Museum, the National Gallery, the Portrait Gallery, and with any luck, others can bring that into the conversation.

17:58But in examining a wide variety of policies and licenses, you can begin to pull out what are the subject matters, what are the topics, if you will, that are addressed in those policies. And one cluster of issues I've called the right, the issues surrounding reproduction and distribution. It's the assertion of rights in the first place, setting limits on reproduction, defining what are the permissible uses, and the list goes on.

18:31You can begin to see just glancing at this list that there is a variety of issues where different museums have said something in their policies or their licenses asserting or maybe even explicitly choosing not to assert any kind of control with respect to one time use or formats like digital versus analog print. language, number of editions of the book in which some of this may appear, and so on.

19:08Not all museums address all of these issues, that's for sure. But this gives you a sense of the types of issues that at least are in play in many of these policies. Going back to a core point, you know, at this point I look at it and ask, Where does the museum even get the right to define these terms? Is it copyright? Well, the Bridgman case, if it's good law, if it's good law here versus there.

19:40Raises questions about copyright as an appropriate tool. Is this really contract? And what's the relationship between contract and copyright? Another bundle of issues that many museums will say that we have restrictions on how you may modify the image or even cut a detail to focus on a detail. or what your requirements are for the color composition or the size, resolution, bleeding and cropping, can you push the image close to the edge of the paper?

20:14These are the kinds of things that actually appear in many of these license agreements. All, to the extent that they exist, they're very much focused on defining in great specificity how one may use the images. And a third bundle of issues that appear in these licenses are with respect to third party rights. Those third parties may be the artist himself or herself who may or may not have rights depending upon the date and circumstances of the painting.

20:50Or it could be the donor. We talked this morning too about donors or owners or sellers of the painting may use that opportunity to again assert control. So, what is it that as a user of that image, in Wikipedia, in a book, in any other format, in any other means, what are the rules that the license or policy will assert about third-party rights? And briefly a few examples, just to see how these play out.

21:24Here's something very plain from the Asia Society Museum. All material, including images appearing on this site, meaning the website, are property of the society or are here by permission, and are protected by U.S. and international copyright law. So there it is. You know, if you thought that Bridgman case that said there is no copyright might be good law, well, ask the Asia Society. They'll give you a very different answer.

21:56Or, how about this example from the Fine Arts Museum of San Francisco, that if you're going to use one of our images, your product, your book, your Wikipedia article, must be copyrighted, how about that, and contain a general notice of copyright, which includes the following language. So, so much for putting it in your own work in the public domain. Using one of their images is a form of control over even your decision about your work.

22:29Or, here's an example of a license or policy term that limits, that constrains how you might modify the work. Any reproduction which deviates from the original image, including but not limited to computer manipulation, renders this permission void. So, so much for Andy Warhol and his photographs. So much for that. If you got the photograph from the Fine Arts Museum, Andy Warhol wouldn't be able to make a painting from it.

23:07And then I like the provisions that attempt to articulate something like fair use, a very, of course, important doctrine in American copyright law, permission to reproduce the images in any format. images may be used for scholarly, educational, artistic, cultural, scientific purposes that support the Huntington's mission etc etc etc. It's a way of maybe not saying it's fair use But it's saying, we're going to let you do things that are a little bit like fair use. Is it redefining it? Is it just a permission that simulates fair use? We can find other language, the Guggenheim Museum, in order to further support the work of teachers and educators in accordance with our own mission.

24:00We therefore consent to the following uses, the reproduction, distribution, transmission, performance, etc. of works from this in a school, museum, or other educational organization. Is it redefining fair use? Is it giving up on fair use? Is it putting something in replacement of fair use? Or is it just a form of permission that, again, imitates, that simulates fair use?

24:30Well, we can talk about UK copyright law. I'll leave that for you to tell me. But certainly we know that there have been struggles over many of these same issues, some of them involving Wikipedia and the use of images from museums here in the UK. And so what kind of analytical conclusions does this lead me to? We can certainly, and I hope you're thinking of, many practical consequences of all of this. But for me, looking at it as a scholar, I'm also looking at questions about what does this tell us about the law? What does this tell us about the limits of copyright? What does it tell us about when we hit those limits, how there is pressure to find alternatives?

25:20And I can certainly tell you in my study of copyright in many, many other areas, it's absolutely the way a lot of the law works. If the law doesn't give you the protection you're looking for, you look around for something to replace copyright. And if you can't find it, you hire expensive lawyer lobbyists and you march to Brussels, you march to London, you march to Washington, and you ask for new law. And we certainly have seen those kinds of developments in all of our systems as well.

25:52What does this tell us about the relationship or the reach of licenses, of contracts, and the relationship of licenses and contracts to copyright law? Can one usurp the other? What does it tell us about the objectives of the law as a social artifact? that? What does it tell us about the objectives of the parties? And who are those parties anyway? Where might be the public interest in this kind of equation about how institutions are able to retain intellectual objects, artifacts, and set the terms for how those works may be used in furtherance of the public's ability to see, hear, watch, and learn from those works. And so with that

26:56I'll say thank you very much and I know we have a panel and I look forward to your comments and I thank you all very much. I'll look forward to your questions.

Source and licence

Recording: File:GLAMWIKI UK Keynote, Copyright in the GLAM Sector.ogv by Giota Alevizou, giotita (2010-11-27), via Wikimedia Commons. Licence: CC BY-SA 3.0. The transcript, summary and chapters on this page are shared under the same licence (CC BY-SA 3.0).

The transcript is machine speech-to-text by the TidyTools Audio & video transcriber; the summary, key points and chapters were written by Claude from that transcript. Both may contain errors: check the recording before quoting it.