Reflections on Copyright Law in Ireland and Public Engagement 3D Scanning Projects

ogham-in-3d

Introduction

The issue of copyright is a contentious one, particularly in the modern era of digital productions and reproductions. In what follows, I offer briefly a couple of thoughts which have occurred to me during my recent endeavour to get to grips with copyright law in Ireland as it applies to the digitisation of cultural heritage artefacts. Foremost in my thoughts have been the implications for copyright of public engagement projects involving photogrammetry and structure in motion software. In the absence of legislation dealing specifically with digital works, I have followed the examples of others in examining the current legislation as it applies to photographic materials (Weinberg, 3-6; Margoni, 26-50).

Legislation

The primary legislation governing copyright in Ireland is the Copyright and Related Rights Act 2000-2007 (CRRA 2000). Section 2(1) CRRA classifies a photograph as an ‘artistic work’. As such, photographs must be original in order to attract copyright protection. Traditionally, for originality to be considered present it was required that an artistic work display a modest level of skill, labour and effort on behalf of the author and that it should not be copied from another source. However, a recent report aimed at improving national copyright law recommended that the development of the statutory definition of ‘originality’ should be left to the case-law of the Court of Justice of the European Union (EJC) (Department of Jobs, Enterprise and Innovation, 33-4). Under EU law the required originality standard is that the work being protected is the ‘author’s own intellectual creation’. The author’s own intellectual creation is present when the author can make free and creative choices and put their own person stamp in the work. Consequently, ‘labour, skill and effort’, no matter the amount, do not necessarily result in originality. The EU originality standard further specifies that in instances where an expression is governed by technical or functional rules or a specific goal, no originality can be present (Margoni, 14-16).

Community Engagement Projects

In recent years, a number of heritage projects within Ireland have actively sought to engage the public in the production of 3D records and visualisations (see below for a list of references). In doing so, they have highlighted the affordability, accessibility and, perhaps most importantly, the simplicity of new recording technologies. For example, the coordinator of the Roscommon3D and Galway3D citizen science projects, states that ‘there is very little skill invovled [sic] as most of the work is done by a computer’ (Dempsey, 3).

Conclusions

In attempting to establish whether or not the individual digitised objects created by these community based projects would acquire copyright protection, an application of the EU originality test would more than likely produce a negative result. Firstly, the author (defined here as the photographer) cannot exercise free and creative choice. These projects specify photographic subjects and the success of the subsequent three dimensional visualisation is dependent on the accuracy of the photographs, that is to say that the photographs must be taken according to a predefined set of rules. Secondly, an author might argue that processing legitimises their claim to originality as the EJC left a certain degree of ambiguity in this respect in the Painer case. However, by highlighting the lack of human input required by the technology, community based 3D modelling projects have negated this ambiguity. In my view, the individual digitised objects created for these projects would fail in a copyright claim as they appear to fall short of the requisite originality standard in every respect.

References:

Cases:

Legislation:

Government Reports:

Literature:

3D Public Engagement Projects:

Further Reading:

4 thoughts on “Reflections on Copyright Law in Ireland and Public Engagement 3D Scanning Projects”

  1. This area is one of particular interest to me also as I am working on using 3D visualisation techniques to record commemorative monuments in Cork City. I had participated in the Roscommon3D project with Gary Dempsey previously and copyright was something I had discussed with him during fieldwork. While it is something at the forefront of both of our minds in our own work, it is still something that we find difficult to navigate at times. This has been exacerbated by the lack of clarification within the copyright law itself. The 2013 report by the CRC that you discuss above did a great job of highlighting the shortfalls in the current legislation for cultural heritage generally, however the responding proposal for the ‘Copyright and Related Rights (Miscellaneous Provisions) Bill 2016’ has been quite selective in their recommended amendments, focusing again on photographic, textual,theatrical and audio works as they fall most comfortably within the definition of originality and fixation. There has however been some much needed acknowledgement in the restrictive nature of copyright law in research institutes and the shortfalls in disability access so it will be interesting to see what provisions will actually be made in these areas in the future.

    Some 3D practitioners are hoping that the lack of clarification means that there is a potential for photogrammetric models to be protected under the Freedom of Panorama act. However, while the photograph is protected, the resulting model is not and can it seems, be in breach of copyright or the law generally as established by certain institutions and property holders.

    As for my own opinion on the matter I don’t think laser scanning or photogrammetry produces a copyrightable object as it doesn’t constitute originality. This is essentially because digital heritage projects aim to create an exact copy of (for example) an ogham stone using methodology that can be fully replicated. The results should vary only due to the individual’s ability in completing the process. Having spoken briefly with the Digital Repository of Ireland on the matter they had suggested that while we may not be entitled to copyright the model we might still express ownership over the data as we have physically collected and processed it. Again unfortunately it hasn’t been fully tested to necessitate a legal amendment so we are still at a loss.

    In using 3D visualisation techniques and in collating information from participatory projects such as the ones you’ve named, I think the best thing at present is to employ best practice methods that we would utilise in a traditional archaeological survey:
    • Contact all stakeholders regarding recording methods.
    • Provide assurance of the purpose of the works and dissemination practices.
    • Establish right of access.
    • Give credit and acknowledge all participants who have contributed to the process.

    If you are interested, one participatory project that may be able to shed light on some copyright issues is the Historic Graves project. As they are essentially hired to instruct and curate they may have some insight on the issues they have faced.

  2. Thanks for these very insightful comments. I had considered the possibility that the data itself may be copyrightable. Similarly, if the individual scanned objects are stored or disseminated as part of a database, the database itself may be protected by copyright. These are subjects for future blog posts and I will definitely consider your comments when discussing them.

  3. At first, I would like to point out that the author of the post made some very interesting remarks as for the copyright law of digital objects. Also, the exposition of the existing legislation is insightful and helpful for the reader who now begins to deal with the issue.
    In general, the issue of copyright has concerned more and more people in recent years. Many are those that have been said about what works of art and which of their copies are entitled to hold the title of authenticity. We live in an era overwhelmed by copies. Every day we listen to music, watch movies and put paintings of questionable authenticity in our homes. The hunt for the authentic and original looks like that of a lost treasure. Wishing or not, we are familiar with the concept of the copy and the copies as objects. Only now the process of copying and its quality have gone to another, higher, level. The technology is now able to offer new and more sophisticated copies; with the dimensions of two converted to three. It seems that this extra dimension has been confusing us a bit and has mixed up the things. Of course, it is very charming for everyone but became the reason for major concern. Creating a 3D copy is not easy as it requires proper equipment and knowledge to use particular software. But the copy, either two-dimensional or three, either in natural form or digital, remains the same. In no way it claims the pretensions of the original, but in some kind of protection should be subject. These are entirely new creations made by a man which are either a processed material with his own hands or collected images of an object, or scanned and set the specifications for the final form. Undoubtedly, they are based on existing standards, but this is not sufficient to classify them into a kind of lower class of objects, in which the creator or creators will not be able to have any rights over them. The concept of the originality cannot be limited to the origin of the idea. Equally important is the process and how to create the object, the material to be used and the method chosen to be accessible to the public. It is especially true for digital copies whose intangible form and accessibility make it easy for them to be held. This is the point that I do not find completely in line with the view of the author.
    In conclusion, the fact is that the reaction of legal principles is not particularly fast. Let’s hope at least that the legislative gap will cover appropriately the existing gaps.

Leave a Reply

Your email address will not be published. Required fields are marked *