Finding the common ground between Wikimedia and the Cultural Sector

On Friday 26th November I set off for the British Museum to attend the first day of the GLAMWIKI conference, which saw cultural sector types mixing with Wikimedians in an effort to discuss issues common to both. A number of worthy speakers were on the agenda, including Jimmy Wales (founder of Wikipedia), Cory Doctorow and Joscelyn Upendran from Creative Commons UK.

Keynote
Cory Doctorow opened proceedings with a keynote speech on the importance of museums, libraries, galleries and archives, coupled with his vision for the cultural use of items housed within them. He claimed that copying is ingrained in our very identities as human beings, and that copying, remixing and sharing has contributed to the flow of expressions and ideas which have shaped our society and provided us with such a rich cultural heritage. Cultural institutions should be encouraged to open their collections so that the public can use these items in a cultural way (sadly he didn’t elaborate on this, as it would have been interesting to hear more). The institutions should not charge the public a fee, as rent-seeking is inconsistent with cultural use. However, cultural institutions are concerned about the ways in which their works are used, keen to protect their “brand” and to ensure they don’t suffer any reputational damage.

Funding and Commercial Interest
Apart from rights clearance issues, the current economic climate makes it almost impossible for institutions to find the money for digitisation projects. As a result, they almost always have to seek out private investment, which unfortunately can come with some commercial strings attached. Another danger is viewing digital cultural assets as money-making tools in themselves - the cultural sector can be in danger of over-estimating the potential commercial gain and under-estimating the public good that digitisation of artefacts would bring.

Creative Commons
Joscelyn’s presentation on the relevance of Creative Commons for the cultural sector provided a snapshot of pros and cons of the licences, leaving the decision to use CC licences firmly with the audience. A number of people were surprised that a CC licence is a legally recognised contract, which requires careful thought as to its application so as to suit the purposes of the institution. Advantages of CC licences are that they openly generate interest (new business models can be designed to plan for their application) and that cultural objects from institutions can be discovered in standard search engines. The biggest threat of CC licences was future-proofing; if an institution wants to commercialise its assets in the future, then having some already available for free under a CC licence could jeopardise that plan. This added to other threats such as misrepresentation of the institution and derogatory use.

The rest of the day encompassed a variety of talks (many from Wikimedians) on collaborative projects happening across Europe in the cultural sector. I found the most interesting of these to be Europeana, an EC funded portal through which digital cultural material can be accessed. The database operates similar to Google, with metadata and a preview – if you click on the item you are taken straight through to the institution which holds it.

Free-conomy and the Cultural Sector – 3 directions for transforming copyright
The highlight for me was the evening keynote by Dr Kenneth Crews and ensuing panel discussion. The panel was formed of individuals from Europeana, the British Film Institute (BFI), the BBC and the National Portrait Gallery (standing in for DACS who could not attend).

The gist of the keynote was contract versus copyright. Copyright law’s fragmentation into different sets of rights (moral rights, performers’ rights, and so on) means there is much confusion and ignorance about it. This has been countered by licences, drafted to try to simplify permissible uses of material. However, in the cultural sector, works which are out of copyright are being digitised and licensed to end users. The licences enforced are non-standard and vary widely depending on the institution deploying them, often containing clauses going into as much detail as the ways in which the item can be placed on a page. The prevailing question is: where does the cultural sector get the right to assert these terms? Surely, it can’t all stem from copyright law. The 1998 case of Bridgeman Art Library held that reproductions of public domain artworks are not copyrightable as they constitute an exact reproduction which doesn’t attract copyright. However, most cultural sector institutions assert rights when licensing the exact same things.

The problem with licences is that they form a contract which in effect overrules copyright law. This includes all of the fair dealing / fair use provisions. So what can be done? If copyright is perpetually overruled by contract, should there be a system of fair contract law in place? Is licensing simply a way to hammer home one party’s interests at the expense of not only copyright law but also the interests of the users?

Responses from the Panel
Responses were varied but sparked a lively and interesting debate. The representative from the BFI (whose funding is split 40/60 government/private) believed that publicly-funded material should be for the public, in essence viewing the public as investors. The public need to connect better with their cultural heritage, which means finding ways of making the collections accessible so that people are both aware of the collections and can appreciate them fully.

Following on from this, the representative from Europeana drew attention once more to the idea expressed in the Digital Economy Act of extended collective licensing (ECL). This is the statutory authority existing in some countries giving an organisation the legal authority to represent all rights holders and act on their behalf. ECL can only work when a strong and effective money flow system is in place, and it is doubtful that such a system could work across Europe.

The representative from the BBC commented that the increased potential for copyright infringement via advanced technologies combined with new ways of creating material poses a serious threat to business models and conflicts with a law which was never written for this sort of purpose. Nobody ever anticipated a world in which copyright was king. People who can afford expensive lawyers can lock up creative copyrighted material, and the introduction of licences for digital material controls use and continues the monopoly. Contract should not replace copyright; indeed, Creative Commons was a scheme introduced to highlight the problems with current copyright law, not solve them.

The National Portrait Gallery’s representative took a more pragmatic approach to the problem. The emphasis of cultural organisations has shifted from the collection of artefacts to the digitisation and use of the digitised objects, bringing the issue of copyright to the fore. They adopt a risk management approach to digitisation, accepting that the works are likely to be in copyright and pursuing a number of avenues in an attempt to discover the copyright owner. However, even with this detailed research, few copyright owners are ever found. The desire to serve the public by opening up collections can outweigh the risk of a copyright infringement claim, and sometimes the decision is taken to accept the risk. The idea of balance is no longer relevant; rather, the key is in making tough decisions to agree on what is right for wider society.

Question & Answer session
Following thoughts from the panel, the debate was open to the floor. Questions ranged from how to re-define the ‘public domain’ in a global society to systems of funding necessary to open collections up to the public. Some solutions given by the panel included sharing data and descriptions of the collections with the public – there is no copyright in metadata as it’s factual and can therefore be used to the cultural sector’s advantage. The public also has a right to know how their money is being used – cultural institutions should highlight the need to preserve their collections by engaging the public with their content.

Final Thoughts
Sadly, the issues with copyright law cannot be solved over the course of an evening’s panel debate. Still, I came away with lots to think about, especially as the coalition government has called for a review of Intellectual Property Law. For me, possibly one of the most frustrating elements of the Copyright Act is that it applies in exactly the same way to oil paintings hanging in a gallery as it does to photographs taken with a camera phone. My feeling would be that the law needs amending so as to clarify that some degree of skill and judgement is required to allow for an artistic work to attract copyright.

In the meantime, we need to be good stewards of copyright so that we start to think now about how we want our created works to be used in the future. As copyright lasts for 70 years after we’re dead and gone, this is indeed food for thought...