ALRC Copyright Inquiry – Copyright in Public Domain Art

The Australian Law Reform Commission is currently undertaking a review of the Copyright Act – known as the Copyright and the Digital Economy Inquiry. The terms of reference and associated issues paper are broad and give tantalising hope that some genuinely positive user-centric reforms are being discussed. From the terms of reference:

Amongst other things, the ALRC is to consider whether existing exceptions are appropriate and whether further exceptions should:

  • recognise fair use of copyright material;
  • allow transformative, innovative and collaborative use of copyright materials to create and deliver new products and services of public benefit; and
  • allow appropriate access, use, interaction and production of copyright material online for social, private or domestic purposes.

Large copyright graffiti sign on cream colored wall

Currently, Australia is the only (?) country where kids viewing websites in a school classroom requires paying a fee. This is because a statutory license specifically for schools is written into the current law. I don’t mean closed-access journals or even subscription services, I mean just regular, ordinary websites such as blogs or news. With the increasing use of digital educational resources, the amount schools have to pay is taking up an increasing proportion of the Education Department’s ever decreasing budget. Equally, even though Australian local councils are required to publish people’s development applications for public consultation, they are also expected to pay a fee to put the plans on their websites as this would (apparently) otherwise be considered a copyright infringement!  Both cases make a mockery of the “digital economy” – you have to pay fees to do something digitally that would be free if it were on paper.

Unsurprisingly, the beneficiary of these kinds of things is primarily the collecting societies (like CAL) who take a cut of each fee and invest the profits in lobbying for further fees and the general spreading of fear, uncertainty and doubt about copyright – that is, “copyFUD”.  So,  you can imagine that these kinds of organisations are none too happy with the prospect of a nice flexible Fair Use system like in the US to replace these license systems. It would kill the goose that lays their golden eggs.

Given the nature of the questions asked in the aforementioned Issues Paper, I’m cautiously optimistic that this review will mark the turning of the tide in how restrictive copyright has become. I believe we’ve now passed “peak copyright” and are starting to swing back away from the vested interests of “big content”. Even the US Republican party is making surprisingly awesome statements (WELL worth reading).

Meanwhile …

this year I’m studying for a WIPO sponsored Masters in Intellectual Property Law. For the thesis component of this course I chose to write about the subject that got me involved in copyright law in the first place, and ultimately caused me to create GLAM-WIKI: the highly contentious idea that a faithful reproduction of a copyrightable work creates a new, independent, copyright term. To give a specific example: what is the copyright status of the image below (a faithful reproduction of Tom Roberts’ Shearing the Rams (1890), one of Australia’s most recognisable paintings and important cultural artifacts) when it is created by its gallery owner and displayed on its website? Does it have a separate copyright status as a new work or is it Public Domain like the original? You will be unsurprised to learn that I firmly believe that the latter position is correct.

My thesis for the Masters offered a summary of the different approaches that museums in Australia, the UK and the US take on this issue, followed by an analysis of the legal precedents in those countries. It concluded with my recommendations for how the situation could be clarified in Australia. I am particularly indebted to my friend Kenneth Crews for his fantastic series of papers on this topic and to Europeana for walking-the-talk with their PD Charter and their Yellow Milkmaid report. Thanks also Barry Szczesny (American Association of Museums Government Affairs Counsel) for making such a shameless speech – in my opinion the copyright-in-scans equivalent of the “47% comment“.

And… I received the results back the other day – an “I-couldn’t-be-any-happier” 90%!

Knowing that better people than I am would be making solid submissions on the “popular” topics, and that the copyright-in-scans issue would probably be forgotten, I decided to modify my thesis to make it into a submission for the ALRC review. So, mine is officially number 136, right down the bottom in the “from individuals” section of the official list of received submissions between the eight (!)  from the prolific Matthew Rimmer. You can read the whole thing by downloading that PDF, or viewing it on Scribd. I’ve also embedded it here (it’s licensed CC-BY). I would really appreciate it if you do read it and that you leave any comments below.

I think it’s fairly clear that the courts in Australia, the UK and especially the USA are agreed that a mere mechanical reproduction of a Public Domain artwork is also PD – and the major museums are basically just hoping that no one will notice… (see “legal situation” beginning page 8 of the submission for details of this analysis). However, what I find problematic is that most digitisation is NOT merely mechanical as it often involves some element of post-production. Even though precedents such as Bridgeman v Corel couldn’t be clearer in stating PD=PD, neither it nor any other precedent says anything about what happens when the museum uses photoshop, for example, to adjust the digital image in order to better replicate the original colours  – the common practice. I argue that the entire point of the post-production is to imitate ever more closely the original work and remove any artistic interpretation (and therefore copyrightability) in the new digital image (see “post production” beginning page 14). Hiding behind post-production and combining that with copyright-like terms and conditions (and occasionally TPMs/DRM) are the methods by which museums often claim copyright in PD digitisations. The justifications for doing this are twofold – financial and ethical (see “justifications” beginning page 4).

There is increasing evidence that a image-licensing system is not profitable (see “counter-arguments” beginning page 5) but what truly makes me livid me is when I am told that there is a need to claim Copyright “in order to preserve the integrity of the work”. It is indisputable that cultural institutions have a duty of care for their collections. I am not denying that they do. Moreover there are often donor-restrictions or indigenous cultural rights considerations to account for. However, it is never the curators or conservators – those who are charged with that duty – who express the desire to “preserve integrity” through restrictive digital access. Rather, it is the sales and marketing managers who make this argument, using the curators as a shield, so as to preserve privileged access over the collection in order to execute a business model based on enforced scarcity.

I often refer to this justification as “the tea towel problem” and Kathleen Butler brilliantly calls it “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“. This is where “Integrity” concerns are conveniently ignored when it comes to the ways the art is remixed as merchandise and sold in the museum’s own shop.

For example, in the Louvre

In the end, I make four recommendations (elaborated in the submission, starting page 18):

  1. Declare a high originality threshold of copyright in works that specifically excludes effort, skill or expense as relevant factors.
  2. Stipulate that a recreator’s intent should be a key test in determining the threshold of originality for digitised works. This is in order to counteract claims that changes in post-production are inherently worthy of new copyright.
  3. Declare that the Public Domain cannot be “contracted out”. That is, agreements which purport to exclude or limit the rights associated with the statutory limitation of Copyright should not be enforceable.
  4. Finally, that it should not be considered an infringement to circumvent a TPM/DRM if the purpose of doing so is solely to access Public Domain works.

The ALRC is due to make its final recommendations in a year’s time, and will release a discussion paper in response to everyone’s submissions at some point before then. Here’s hoping my submission, or at least this particular issue, gets a gurnsey!

I look forward to your comments on my thesis/submission below 🙂

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