One type of question that I get over and over again from faculty and graduate students involves copyright and images of art works held in museums. In fact, question is probably the wrong name for these discussions; mostly I try to be sympathetic as the researcher bemoans the thicket of claims and permission costs in which they have become entangled as they undertake some project. I recently met with one faculty member who is creating an amazing “digital humanities” project and needs to obtain, from a significant number of different museums, high-res images of works that are clearly in the public domain. Even this author, who is both remarkably good-humored and very persistent, was confused and bemused by the Pandora’s box she had opened.
Then I saw this article about the Rijsmuseum in Amsterdam, which reminded me that even in Pandora’s box, hope remained in the bottom — some museums are bucking the trend and creating reuse-friendly policies for images of public domain works.
Whenever I am asked about the process of getting “copyright permission” from museums to use images of artworks in a new project, I start by explaining three basic principles:
- Many of the artworks held by museums around the world are in the public domain, either because they were created before copyright came into existence in the late 17th and early 18th centuries or because any copyright they had has expired. And even for works that are still protected by copyright, most often the museum that owns the art work does not also hold the copyright.
- Even a photograph or digital scan of a public domain artwork that is created by the museum may lack copyright protection under a U.S. District Court decision that said that such “slavish” reproductions — reproductions that add nothing but attempt *just* to accurately reproduce the work — are not original enough to gain any copyright other than whatever protection the underlying work enjoys (which, if the work is public domain, is none). This is only a District Court case, but it has never been appealed or, to my knowledge, otherwise challenged so it probably should guide us unless or until we get something more definitive.
- Museum claims over the use and reuse of images from their collection, even though often called and often understood as copyright claims, are really mostly a matter of contractual agreement and simple control over access to the unique works that the museum holds. Because these works are (more or less) unique, the ability to make a reproduction can be tightly controlled and the museum can impose contractual conditions on access to make such a reproduction or on the reuse of a museum-supplied image. These contractual obligations actually bind only the parties that agree to them, but in practice they are often passed to downstream users in the form of conditions on reuse that the original recipient feels bound to impose.
All of this is explained very elegantly and discussed in great detail in a superb article written on the topic by Kenneth Crews of Columbia University, which is available here. It is a subject all librarians, in my opinion, should understand, so the article deserves a wide readership. Dr. Crews points out both that many claims made by museums tend to stretch the copyright law beyond reasonable bounds AND that some of the claims for control and remuneration are supported by sound business practices and cultural policy considerations. This is not a black or white issue, just one where more clarity and an open discussion of genuine needs and concerns can lead to better conditions for the reuse of artworks and images.
Which brings me to the Rijsmuseum. Their decision to offer high-resolution images of many works in their collection available for free download is a startling example of the other side of this issue — there are good reasons, especially from the perspective of fundamental museum missions to make culture more accessible to the public, to take the opposite approach from that of some museums and support radical reuse. I was struck by the reasoning behind allowing even commercial reuse of these high-res images:
If they want to have a Vermeer on their toilet paper, I’d rather have a high-quality image of Vermeer on toilet paper than a very bad reproduction.
Maybe the example chosen is not one involving high culture, but it illustrates quite dramatically that reuse of public domain art is inevitable, even for purposes we may deplore, and that the public is, in many cases, better served by access to good-quality reproductions than it is by complex contractual terms and absurd restrictions on even the most traditional practices (like sketching an artwork at the Art Institute of Chicago). If we must chose between extremes, there is a great deal to recommend the Rijsmuseum approach.
As libraries, museums and archives work to digitize more and more of the public domain materials that they hold, it is worth considering how others will be able to use and reuse those images. With so many digital humanities projects being pursued around the world, the thickets of permissions and use restrictions will grow evermore burdensome. An example like the Rijsmuseum is a great counterweight to that burden, and a graphic reminder that it really does not have to be that way. Of course, not every cultural institution can afford to make high-res reproductions available for free; fees are often essential to support the mission-driven activities of these collections. So fees may be needed for the provision of high-res images, as may some restrictions on further dissemination of those images. But many of the restrictions and fees we often encounter cannot be justified in this way. So if we start from the very open policy of the Rijsmuseum and then apply only those restrictions that have sound, policy-based foundations, we can arrive at much more supportive approaches to reuse and new creativity. The policy adopted by the Cornell University Library’s digital collections is, in my opinion, a model of such a moderate and sensible approach.
For those beginning to explore the uncharted territory of the digital humanities, permission fees and reuse restrictions will probably continue to create nearly unnavigable thickets of complication. But with these few counter-examples, we can see that a better approach is possible. Libraries and the digital archives associated with them need to model the best practices that we can in hopes that the most absurd kinds of copyright overreaching will become less common and rational policies based on an accurate assertion of rights and a realistic assessment of needs will begin to dominate.
Last week we saw two proposals about how the various federal agencies that fund research might implement the recent directive from the White House Office of Science and Technology Policy that mandates public access to the products of funded research. A group of publishers unveiled (sort of) a proposal they call CHORUS, while the Association of American Universities, the Association of Research Libraries and the Association of Public and Land-grant Universities collaborated on a different proposal, referred to as SHARE.
The publishers proposal — the acronym stands for Clearing House for the Open Research of the United States — is described in glowing terms on the Scholarly Kitchen website and with a bit more restraint by the Chronicle of Higher Education. The proposal from the education associations, dubbed Shared Access Research Ecosystem, is also described by the Chronicle and is the subject of a detailed draft proposal that can be found here.
For myself, I would rather SHARE than join the CHORUS, for a number of reasons.
First, I think CHORUS is being touted, at least in what I have read, by comparing it to a straw man. Its principle virtue seems to be that it would not cost the government as much as setting up lots of government-run repositories, clones of PubMed Central. But it is not clear that that option is being seriously suggested by anyone. Certainly many of us encouraged the agencies to look at the benefits of PMC for inspiration and not sacrifice those benefits in their own plans, but that does not mean that each agency must “reinvent the wheel,” no matter how successful that wheel has been. So the principle virtue of CHORUS seems to be that it does not do what no one is suggesting be done.
The most important thing to understand about CHORUS is that it is a dark archive. The research papers in CHORUS would not be directly accessible to anyone; they would be “illuminated” only if a “trigger event” occurred. Routine access would, instead, be provided on the proprietary platforms of each publisher, while the CHORUS site would simply collect metadata about the openly-accessible articles and point researchers to the specific publisher platforms.
It seems to me that the CHORUS proposal is “disabled” from the start, by which I mean that it lacks three fundamental abilities. CHORUS, at least based on the descriptions we have seen, lacks find-ability, useability and interoperability.
Perhaps the most troubling remark in the description offered on the Scholarly Kitchen blog is that “Users can search and discover papers directly from CHORUS.gov or via any integrated agency site.” Does this mean that even the collected metadata would not be available to Google? We know how few researchers “walk through the front door” of our research tools, so limiting discovery to the CHORUS portal or “integrated agency sites” would make these open access papers virtually invisible (which, one suspects, is the point). As things stand now, open access papers which reside on proprietary publisher platforms are difficult to find because there is no consistency in how they can be discovered. That is the principal reason so many COPE fund institutions will not support so-called “hybrid” open access publishing that makes a few articles open on an otherwise toll-access site. It does not seem that CHORUS would change that unfortunate situation at all, which is probably why Heather Joseph of SPARC calls CHORUS “a restatement of the status quo.” The public would gain very little, since the major goal of the proposal is for the publishers to cling tightly to control over the research papers that have been entrusted with.
Another ability that CHORUS would lack is useability, since as far as we know, all that a researcher or other user could do with these papers is read them. It would not, of course, facilitate sharing, teaching or reuse, even those these abilities are vital to improving the speed and quality of research in the United States. And then there is interoperability. If the geographically desperate archives are genuinely federated, searches across all of them, even keyword searches that are not dependent on the metadata created for each article, would be possible. So would text and data mining across a large corpus of works. We already know that such interoperability creates tremendous new opportunities for expanded research, collaboration, and previously impossible discoveries. But there is no reason to believe that CHORUS would support interoperability, since the various publishers have a strong competitive interest in not allowing cross-platform activities. Research and education, however, not only do not benefit from that competition, but are actively “disabled” by it.
On the other hand, the proposal from the universities and their libraries is for a genuinely federated system of university-based repositories. Those repositories already exist, so if we are going to make a cost argument, it really favors SHARE. And these repositories, unlike the publisher platforms, have a strong interest in facilitating discovery. Also, the detailed proposal offered by these groups addresses text and data mining, semantic data, APIs for research and linked data. All of these things make university-based research better, while they pose threats to the commercial publishers who have designed CHORUS to protect themselves, not to benefit research or the public. So all the incentives line up between the public interest and the university-based SHARE system.
If the OSTP and the research-funding agencies take seriously all of the opportunities that were described in the comments they have solicited over the past year, it will be very obvious to them that CHORUS is singing flat, while it would be good to SHARE, just as our parents always told us.
As Duke University’s first Scholarly Communications Officer, Kevin Smith’s principal role is to teach and advise faculty, administrators and students about copyright, intellectual property licensing and scholarly publishing. 
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