Some Thoughts on Copyright in relation to Cultural Heritage Material
The Collins English dictionary defines copyright as the “exclusive right to produce copies and to control an original literary, musical, or artistic work, granted by law for a specified number of years”. This is a legal right that can be asserted and defended through the courts, if necessary.
So works that may be subject to copyright must be original, must have artistic merit and someone must be in a position to establish a right to the copyright. So far, so straightforward. Or is it? On the contrary, I would argue that it is a complex and contested area, in defining and arbitrating on whether or not works are original or artistic as well as in the practical ability of copyright holders to assert their rights even when matters of ownership are very clear. In relation to publicly owned cultural heritage material, there is an additional question of who ‘owns’ the material, and therefore the right to produce copies.
Creative versus Representational
One aspect of the debate centres around the question of whether a work is representative or expressive. In Weinberg’s view, a 3D scan developed to accurately record and represent an original would not fall under copyright legislation, whereas a scan which is altered by the intention of the artist to be expressive would. Who, however, decides whether a work is representative or expressive and how many people would be in a position to argue the case in court?
Even where originality, creativity and ownership are not contested, it can be prohibitive for an individual to defend their copyright. The well-known case of the iconic Che Guevara image by artist Jim Fitzpatrick, now in the news because of its use on a postage stamp, is a timely reminder. In line with his liberal principles, Fitzpatrick famously did not copyright the image until 2010. Speaking recently on RTE radio 1, he divulged that he could not possibly afford to go after large corporations who continue to use his image without licence.
Is Possession 99% of the Law?
To my mind Cronin appears to overstate the restrictions on imaging applied by public bodies and the reasons for the ban in the example given is not clear. The core role of any cultural institution is to protect and preserve, at the same time balancing that role with providing access to the material. There remains a real need to protect objects made with certain materials from environmental factors and therefore darkened rooms, environmentally controlled cases and some restrictions on access will remain but in my personal experience working in cultural institutions, I have seen a dramatic about turn in relation to photography in museums. 20 years ago it was largely not permissible to take a photograph but today largely because of advances in camera and smartphone technology, photography, other than flash photography, is allowed and often encouraged.
Changing landscape of cultural heritage organisations
There is a fundamental shift in how cultural organisations perceive their public role and a drive for greater access both from within and from outside. The potential of digitisation generally and of 3D imaging in particular, is in its infancy in terms of its application by cultural heritage organisations. At European Commission level there is active engagement in this arena, a steady loosening of restrictions on imaging and re-use of images and a recognition that copyright legislation needs to be updated (Europeana 2).
In the meantime general exemptions under the Copyright and Related Rights Act, 2000 (National Library) do allow for ‘the copying of a work for the purpose of research and private study, for the purpose of criticism or review etc’. Gaining access for 3D scanning is possible, but it requires staff time to be allocated by the organisation and that needs to be balanced against other methods of access.
Cultural Organisations will often give permission to third parties to create images but retain copyright and it is often a case, as in the Fitzpatrick experience, of the stronger party creating the conditions rather than the true owners.
Cronin, Charles, Possession is 99% of the Law: 3D Printing, Public Domain Cultural Artifacts and Copyrightâ€™, Â USC Law Legal Studies Papers, vol. 16, no 13, 2016
Weinberg, Michael â€œ3D Scanning: A World without Copyrightâ€, Shapeways, 2016 Â
National Library of Ireland, https://www.nli.ie/en/faq/faq-rights-reproductions.aspx#faq4. Accessed 9/10/2017
Europeana,Â https://ikaros.cz/images/201502/digitization_and_copyright.pdf, page 2. Accessed 9/10/2017