Control and Copyright: Who owns the past?


Auguste Rodin, The Thinker, 1880-81, Bronze. Georges Rudier Foundry, 10/12. Posthumous cast authorized by Musée Rodin, 1972. Cantor Arts Center Stanford University.

Patents, royalties and copyright are all accepted terms within a business context, but what happens when we apply business terminology and principles to culture? Should cultural artefacts be treated as any other tradeable commodity or are objects imbued with cultural capital exempt from these impositions of authority? In an attempt to answer these questions this blog post will explore the role of copyright legislation in the context of 3D scanning.

Gaining Access : Economy and Integrity

As is exhibited in Charles Cronin’s work on copyright and cultural artefacts a large degree of copyright contentions are motivated by finance and concern for integrity (Cronin 2). While Cronin, and other expanded domain advocates like him (Matz 5, Butler 57), disagree with the validity and necessity of these practices, cultural institutions and other academics argue that their actions are not only valid but justified (Allan 964). Upon reflection it is difficult to align oneself with the latter view. While the issues of revenue will always be an integral one for cultural institutions the contention that expansion of the public domain will result in an increased use of licenses and contracts seems to ignore the fact that such arrangements already exist (Cronin 12). Similarly, the notion that copyright is responsible for higher quality reproductions ignores the desire for preservation among the cultural community, it is hard to see this desire fade as a result of increased access. Equally, Cronin’s counter-argument that poor reproductions do not diminish prestige is difficult to refute when evaluating the continued prestige of Shakespeare and Mozart despite many poor reproductions of their work (Cronin 20). Unfortunately, regardless of Cronin’s logical arguments it is ultimately clear that copyright laws advocate for the owner and not the user. As a consequence, gaining access to cultural objects to even attempt a 3D scan can be half the battle.

Who owns the digital?

While gaining access to cultural artefacts for the purpose of digitisation can be challenging it is not impossible, therefore, it is necessary to evaluate the ownership of digital reproductions. In his study on the topic Michael Weinberg uses the precedent of copyright photography to establish how the legislation should and could theoretically be applied to 3D scans (Weinberg 3). According to the Copyright Association of Ireland (Frequently Asked Questions) the principal element required for artistic copyright is originality. Similarly, the focus of  Weinberg’s argument is that copyright protection is contingent upon the concept of “originality” in conjunction with the scanner’s intent. However, objectionists, such as Allan, have argued that it is not solely originality which defines the copyright issue, but that creativity has infiltrated the definition of eligibility (Allan 968).

The result of this originality clause is theoretically defined as follows: a 3D scan that was created with the intent of preservation or is simply a slavish digital model to real life object is not protected by copyright (Weinberg 9). The justification of this is that an accurate representation of a real object is simply  a transference from one medium to another, it does not require or represent originality and is therefore not protected. An important part of this definition is the acknowledgement of where originality must occur. That is, originality in method does not qualify for protection as the scanner is simply employing best practice to achieve the goal of replication. Therefore, originality is only a qualifying factor as it applies to product. This is essentially the point Weinberg is making when he speaks of intent (Weinberg 7). The exception to this copyright ruling occurs in regards to what Weinberg defines as ‘expressive scans’ (Weinberg 8). These scans are created with the intention  of distorting the original object for artistic purposes.

Conclusion

We like to think that our past and our culture is open to all. That artefacts detailing our past, our story, belong to us as a collective and can be represented as such. However, the reality is much more complicated. Where access is permissible and provided this is very much the case. 3D scans allow a universal audience to view, download and even print replicas. For many this may be the closest they can get to the original, and while this may not be everything it is hopefully enough. Conversely, where access is denied, ownership is a struggle as owners, guardians, institutions, academics and the public seek to serve very separate interests.

Bibliography

Allan, Robin J., “After Bridgeman’: Copyright Museums, and Public Domain Works of Art.” University of Pennsylvania Law Review 155:4 (2007): 961-89. JSTOR. Web. 7 October 2016.

Butler, Kathleen Connolly, “Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control Art Images in the Public Domain through Copyrights in Photographic and Digital Reproductions.” Hastings Communications and Entertainment Law Journal (Comm/Ent) 21:1 (1998): 55-128. HeinOnline. Web. 7 October 2016.

Cronin, Charles, “Possession Is 99% of the Law: 3D Printing, Public Domain Cultural Artifacts and Copyright” Minnesota Journal of Law, Science & Technology 17:2 (2016): 709-736. Web. 7 October 2016.

Matz, Robert, “Bridgeman Art Library, Ltd. v. Corel Corp.” Berkeley Technology Law Journal 15:1 (2000): 3-23. Web. 7 October 2016.

Weinberg, Michael, “3D Scanning: A world without copyright” Shapeways (2016): 1-16. Web. 7 October 2016.

“Frequently Asked Question.” Copyright Association of Ireland. Web. 7 October 2016.