After the amazing Copyright Future conference held this week [good 30 second summary here], Wikimedia Australia was invited to attend a select roundtable meeting of cultural institutions and ‘thought leaders’ on the topic of Open(ing) Access to Australia’s cultural heritage.

Interestingly, what we seemed to discover was that whilst every institution – and I’m talking the major national organisations here – is theoretically on board with the idea of opening up and sharing their content, in practice they each have independent policies that stymie this. It’s rather like the way that Australia doesn’t have a consistent rail gauge – nothing really connects up and everyone is duplicating each others’ efforts…

When it became clear that the problems standing in the way of greater access and harmonisation were procedural (rather than problems of infrastructure as with the railways) I piped up and asked the somewhat provocative question of why most of Australia’s cultural institutions used generic access-restriction phrases on every single item in their collection irrespective of its age/access policy/copyright. Here are three of many examples:

(exhibit 3)

A bit of backstory…

At this point I would like to refer you to the excellent blogpost by Sage Ross, grad student at Yale, from January this year entitled “Libraries and Copyfraud”. It explains the situation Wikimedians find themselves in when working with cultural institutions who make these kinds of blanket statements. Here is the key paragraph where Sage describes his attempt to access an already digitised copy of a portrait of Charles Darwin from the Huntington Library:

…In the exchange that followed, I tried to explain why the library has neither the moral nor legal right to pretend authority over the image (although, I pointed out, charging fees for distribution is fine, even if their fees are pretty steep). A Curatorial Assistant, and then a Curator, tried to explain to me that the Huntington actually has generous lending policies (you don’t “lend” a PD [public domain] digital image, I replied), that while the original is PD, using the digital file is “fair use” that library has the right to enforce (fair use, by definition, only applies to copyrighted works, I replied), that having the physical copy entails the right to grant, or not, permission to use reproductions (see Bridgeman v. Corel, I replied), that other libraries and museums do the same thing (that doesn’t make it right, I replied), that big corporations might use it without giving the library a cut if they didn’t claim rights (nevertheless, claiming such rights is called copyfraud and it’s a crime, I replied), and finally that I should contact the Yale libraries and museums and see if they do things any differently (a return to the earlier “everyone else does it” argument with a pinch of ad hominem for good measure, to which I see no point in replying)….

Apart from some differences of law [See footnote 1 for the three main differences between his circumstances in the US and those in Australia] his experience in coming up against the “everyone else does it” argument is entirely familiar. Another important argument raised by cultural institutions for these kinds of access policies – one for which I have much sympathy – is that due to depleted “core funding” the institutions need to charge customers in order to pay for their daily operations.

So, back to the roundtable meeting…

From where I was sitting, it appeared that those who represented cultural institutions were saying: “well yes, of course we charge access fees. It’s a business model and we need the funding. Everyone else does it…” At the same time the lawyers and academics were saying: “well no, of course they wouldn’t do that. The content is already online so there’s no basis in law for the fee to be applied…” This was the moment where everyone looked at one other and said: “Ah, Houston we have a problem“. But it is from these kinds of moments that the best kind of collaboration can occur. And so in our case, although the problem is not new, there seemed to be an awareness that specific measures need to be taken.

Into this breach stepped Dr. Prodromous Tsiavos who has been dealing with similar issues in the UK. He broke it down into three specific areas. I believe that if all Australia’s cultural institutions signed on to his suggestions, we would be in a much happier place because we would all be rolling on the same digital rail gauge.

1) Standard Access policy

Setting aside the issue of copyright, there is no agreed-upon “best-practice access model”. Each institution’s legal department writes its own rules and then the front-line staff have to enforce them. This is a recipe for confusion, frustration and the creation of organisational fiefdoms. It would be of great assistance if there was a document from the federal government stating the principles that they recommend publicly-funded institutions follow. Perhaps this would be a task that the Australian Government Information Management Office (AGIMO) could undertake?  Trying to access a particular (public domain) image from the collection of one of Australia’s peak cultural institutions, I ended up speaking with staff from three different levels. Each one overruled the other whilst referencing the same access policy. The range of policies in effect across the country is broad. Some institutions say they allow personal/private use; some say they allow educational use; some ask for an access form to be submitted; some require a clickthrough agreement to their terms of use; some use technical protection measures (TPMs) to inhibit access (such as using unstable URLs, popup windows and embedding files in the .flv (adobe flash) format) yet others offer a “download here” button.

I would suggest we look to the Library of Congress in the US for a best-practice example. They do not have any generic statement on items. Their copyright information page gives details about how you can make your own assessment on the copyright status. They also publish a list of the “rights and restrictions” for many of their works so that you can see for yourself what the rules of the game are and where to go for further permission (when required).

2) Licence Toolkit

Once it is determined that a licence is required, each institution currently has its own separate system for drafting agreements. This is not relevant to Wikimedia as everything on Wikimedia projects must allow downstream access/usage. Nevertheless, it is a huge time and cost burden on the thousands of end-users of Australia’s cultural heritage. Drafting and managing these kinds of agreements takes approximately 70% of my work time at the Dictionary of Sydney despite the fact that each of the agreements has the same restrictions and warranties. One of the key advantages of the Creative Commons licencing scheme is the way it is “off the shelf” and “mix and match”. Rather than every institutions having to draft and manage bespoke licences that say effectively the same thing it would be good if there were a standard licence toolkit which everyone could access. Again, the federal government could play a role here as I am willing to bet my left arm that this measure alone would produce huge labour and cost efficiencies. People could stop worrying about managing licences and start getting down to the business. And I mean business. How much money and time is spent by the cultural production houses like the ABC and SBS tracking down and managing licenses when that money could be better spent in producing content.

The Australian Copyright Council would no doubt be appalled by this idea. Despite the fact that they are government funded to provide neutral copyright advice they behave as if they have a vested interest is in maintaining complexity in the licencing system. Their dislike of the Creative Commons system, precisely because it is “off the shelf”, is testament to that. Unfortunately, because of their own access conditions to their (government funded) work, I am not allowed to talk about what they have to say. This is what is written on the last page of their “Creative Commons licences (information sheet) GO94”. Oh the irony…

3) Standard Workflow

Standard workflow is a corollary of the first two points. If you have a standard policy for access, and you have a clear system of licensing usage for items still in copyright, then you need a standard way of managing the process. Each institution currently has a different format for directing access/licence requests and these requests pass through different departments. For example, sometimes I am simply asked to notify by email my having received permission for use of an in-copyright work; sometimes I need to fill out and fax a monthly form; sometimes I need to wait for that form to be signed by a copyright officer and returned; sometimes I need to send an image gallery of the items I intend to use; and so on … It would be more efficient for the organisation and easier for the customer if the processes were simpler and the default policy was built around access rather than restriction.

I have a strong feeling that these issues are going to be raised at the upcoming GLAM-WIKI meeting in Canberra. In fact, since I’m the one convening it, I’m going to make sure they do. We need to all be rolling on the same digital rail gauge.

Peace, love & metadata to all.

Liam

[footnote 1] There are three big differences between his circumstance and that in Australia – 1) the idea of Public Domain [PD] is not actually enshrined in law in Australia as it is in America. It’s never actually been tested – so I hear. In the exact reverse of the American experience it is impossible for the Australian government to license something as PD and even the CreativeCommonsZero license is on shaky ground here. 2) We don’t have “fair use” but rather “fair dealing” which is in effect much more restricted. In the US-AU free trade agreement we managed to get US-style copyright term extentions but failed to get any of their generous copyright exceptions to match. 3) Bridgeman v. Corel is not a binding precedent in the Australian jurisdiction.