In the face of growing public expectation and the dominance of commercial internet platforms, staying visible and relevant online is a pressing challenge for cultural heritage institutions. As Merete Sanderhoff, a curator at the Statens Museum for Kunst, Copenhagen, has written, ‘Today’s cultural user is not satisfied with being a passive spectator. She or he wants to be an active participant.’
For a growing number of museums, providing open access to online collections is seen as crucial to engaging with the public and serving their wider missions. While select institutions began exploring open access a decade ago, the practice is now becoming mainstream. In February, the Smithsonian released 2.8 million images of its collections for unrestricted public reuse. This spectacular announcement followed recent initiatives by the Cleveland Museum of Art, Paris Musées, the Metropolitan Museum of Art, and others. All are part of the Open GLAM (Galleries, Libraries, Archives and Museums) movement that advocates for liberal access to and reuse of public domain collections.
A key Open GLAM principle is that works in the public domain – meaning copyright has expired or never existed – should remain in the public domain once digitised. This may sound obvious but the reality is less straightforward. Copyright law in this area is complex and lacks international harmonisation.
In the European Union, the standard of originality for a new copyright requires that the work be the ‘author’s own intellectual creation’. So should, for instance, someone who digitises a Hogarth engraving from 1735 be entitled to a copyright in the new digital version? The answer depends on any number of factors, such as whether the digital work was produced by scanning or photography, or edited using digital software. Further complications arise when the artwork captured is in three dimensions, rather than two. The applicable national law where digitisation occurs, or where a user is located, also matters. Valid or not, one thing is clear. A claim to copyright is disruptive. It holds back creativity, innovation and knowledge generation around the public domain artworks stewarded by cultural institutions.
Lawmakers are aware of this dilemma. In 2015, the Intellectual Property Office of the United Kingdom issued a (non-binding) copyright notice suggesting that ‘simply creating a copy of an image won’t result in a new copyright’, but noting that uncertainty existed around digitised copies of public domain images. The House of Lords debated the issue in 2018 but the discussion conflated the legal question of whether the practice was valid with the general question of whether institutions should be allowed to decide copyright as an operational matter.
In 2019, the EU responded via Article 14 of the new Digital Single Market Directive, requiring member states to reform national laws so that no new rights arise around materials resulting from an act of reproduction of visual artworks in the public domain, unless the ‘author’s own intellectual creation’ threshold is met. While there are some ambiguities around the text of Article 14, its legislative intent is clear. The European Commission has stated that users ‘will be completely free to share copies of paintings, sculptures and other works of art in the public domain with full legal certainty’. The UK is not required to implement the directive and its government has no plans to do so.
Unlike many of their global peers, few institutions in the UK have implemented open access policies. The British Museum, the National Gallery, the Victoria and Albert Museum and the National Portrait Gallery – four London institutions with national collections – all assert copyright in digital reproductions of public domain works, and impose significant restrictions on the reuse of these materials via Creative Commons licences. The ambiguity of the widely used ‘non-commercial use only’ stipulation limits image use in a range of educational contexts, such as illustrating Wikipedia articles or academic publications.
Such policies are forms of gatekeeping whereby institutions attempt to control and commercialise reuse through permissions and licensing fees. The effects of this long-standing practice are especially punitive for artists and art historians. In academia, the negative impact of copyright fees on scholarship has been documented by Kathryn Rudy, and a host of leading art historians have called for their abolition. Fundamentally, we might wonder: how do these restrictive practices serve cultural heritage institutions’ wider missions to share, educate and inspire current and future generations of creators and knowledge makers?
In practice, closed policies are rarely successful. Firstly, copyright is ineffective at preventing misuse – bad actors undeterred by copyright will always do bad things. Research conducted for the Andrew W. Mellon Foundation has found little to no reported misuse of images from online collections. Secondly, few museums actually make a profit from image licensing, as revealed by recent Freedom of Information responses, case studies, empirical data and institutions’ own admissions. These business models are increasingly unsustainable.
The evidence from open access museums shows that foregone revenue from image licensing is generally outweighed by an increase in brand visibility and new opportunities for revenue generation. Adopting open access need not prevent museums from undertaking commercial partnerships, such as those between the Rijksmuseum and Playmobil, or the Cleveland Museum of Art and Microsoft. The frequently repeated argument that open access museums can ‘afford’ open policies only because they charge admission fees (unlike many museums in the UK) is erroneous: almost half of the world’s open access museums and galleries do not charge entry fees.
In a digital world replete with free images, commercialising public domain images through copyright licensing looks like a losing hand. Merete Sanderhoff crystallises the issue: ‘If it’s difficult and/or expensive to get images of artworks from museums, people look for them elsewhere. Most museums lose more money than they make on image licensing. If it isn’t online, it doesn’t exist.’ If museums provide high-quality collection images on open access terms, it is more likely that these images become the reference point on the internet, not inferior copies.
In the UK, a small but growing number of institutions are responding to the call. The first to embrace open access was the National Library of Wales, which now employs a ‘National Wikimedian’ to develop collaborations and services that advance the representation of Wales and the Welsh language on Wikimedia projects. York Museums Trust releases the majority of its online images to the public domain. This year, Birmingham Museums sponsored an art remix contest with artist Coldwar Steve and the local creative community Black Hole Club, inviting the public to respond imaginatively using Birmingham’s open collections.
To boost their global reach, many open access museums also publish collections on shared digital platforms such as Europeana, Wikimedia Commons and the Internet Archive. The decision to engage audiences beyond cultural institutions’ own websites requires imagination and a change of attitude on the part of museum leaders. Collaborative open data platforms support scholarship and education, and enable new forms of knowledge through data visualisation and networked connections to other online collections. New initiatives such as the Open GLAM Declaration on Open Access for Cultural Heritage, and Art for All seek to further advance open access implementation and identify new ways to support institutions.
Open access can also be transformative inside heritage institutions. One year after the Cleveland Museum of Art’s open access launch, its chief digital information officer, Jane Alexander, noted the following impacts: increased updating of attribution, provenance and collections information; curators forging new connections with scholars; and resources being reallocated from responding to image requests to supporting digitisation. The vast majority of the museum’s online users who are looking for images now self-serve from its online collections, freeing up valuable staff time.
Providing open access to digital collections transfers significant power from institutions to the public they exist to serve. As the Covid-19 pandemic progresses, it has never been more vital for museums to explore how they can make new connections with audiences and support creators, educators, scholars and innovators working through this difficult time.
Douglas McCarthy is co-editor of the Open GLAM Medium publication and collections engagement manager at Europeana. Andrea Wallace is a lecturer in law at the University of Exeter.
From the June 2020 issue of Apollo. Preview and subscribe here.