Andrea Wallace

“ If not, sui generis rights can protect the contents of a database where there is a substantial investment in obtaining, verifying or presenting the data (but no creative input) . [2]
Moral rights. Sitting alongside copyright are moral rights, which are the noneconomic rights that protect the personal and reputational value of a work to its creator. In the UK, these are limited to the rights of attribution and integrity and interpreted narrowly, as discussed in Section 4. Moral rights expire upon the expiration of copyright. This means no moral rights exist in public domain works. ”

“ The UK is in a unique position in that it can design a programme that tracks data on rollout and produces cutting edge research on the benefits of open GLAM, as well as what a more nuanced and inclusive approach to open GLAM might resemble. ”

“ Open, open access or open licence carries the meaning of “open” as defined by the Open Knowledge Foundation: “Open means anyone can freely access, use, modify, and share for any purpose (subject, at most, to requirements that preserve provenance and openness) .” [12] Under international open access statements, materials must be made available for commercial reuse to qualify as open. [13]
Public domain conveys an absence of copyright or similar restrictions on use. ”

“ This means a creator is not required to register or seek formal approval to enjoy copyright protection. But not everything a creator makes receives protection. A work must be sufficiently ‘original’ to attract copyright, which means a minimum level of creative input must be expended during the work’s making. If so, the copyright generally lasts for the creator’s lifetime and another 70 years after their death. [1] Once copyright expires, the work belongs to the public domain and anyone can use it for any purpose, and forever; the work cannot be ‘re-protected’ by a new copyright. ”

“ The gallery is free and open to all people as a place of civic thinking and public imagination, promoting art as a means to achieve social change. Created as the Royal Manchester Institution for the Promotion of Literature, Science and the Arts, it has been at the centre of city life for nearly 200 years and has been proudly part of Manchester City Council since 1882. The gallery is for and of the people of Manchester and through its collections, displays and public programmes it works with everyone to ensure creativity, care and consideration can transform all aspects of the way we live. ”

“ The policy does not consider that copyright in digital surrogates and data may frustrate these goals by erecting new boundaries that are geographic (e.g., UK copyright law) , cultural (e.g., Museum oversight around reuse) and economic (e.g., licensing fees to access and reuse images) . Instead it focuses on digital access (rather than open access) around an ambition “to create full machine-readable metadata and digital surrogates of our unique collections and make them available and discoverable online, and to preserve and safeguard them for future generations” (italics added) . ”

“ For example, if we investigate a GLAM’s most open approach, the picture is similar to the UK data discussed in Section 3.2. In total, 82 or 42.1% of UK organisations surveyed publish one or more assets using open licences or public domain tools, contributing a total of 10,487,115 open assets or 14.8% of all global assets (that could be counted via publication platforms) . A total of 113 or 57.9% in the UK GLAM Sample have not yet engaged with open access. This paints a relatively healthy picture of open GLAM for the UK heritage sector. ”

“ The UK’s galleries, libraries, archives and museums (GLAMs) hold an immense breadth of cultural heritage in trust for the public. In stewarding these collections, GLAMs produce new materials, like documentation, images, scans, data and metadata, research data and publications, and other types of media and knowledge. Many GLAMs extend access to collections and associated materials through websites or external platforms. Open access to digital collections is thus an essential tool to reduce barriers and enable wider public participation. ”

“ In reality, there are considerable levels of anxiety around the application of laws and the desire to comply and respect rights. Yet traditional copyright policies that treat in-copyright and public domain materials together and use dense legalese generally place the onus on the user to ensure no infringements of law occur. This assumes significant knowledge and understanding of the user. Such policies can become barriers to access and reuse, regardless of what their individual terms permit or prohibit. ”

“ Success on the matter is low, while the risks of enforcement are high: a GLAM could be saddled with an unfavourable precedent in addition to an expensive bill. To be fair, any type of legal process, even mediation, is more than most GLAMs can afford despite whether the parties proceed to trial where the rule on a loser bearing costs would apply. But because these factors prevent access to or use of courts to settle the matter, GLAMs resort to using cease-and-desist notices of infringement. ”

“ Others feel copyright is not a prerequisite to income generation and noted its absence had more of a positive impact. There appears to be a general conflation of copyright with commercialisation goals, or copyright as even being necessary to commercialise media, perhaps informed by assumptions that controlling access is necessary to controlling revenue streams. For these GLAMS, scarcity around collections is understood as necessary to attracting commercial interest from the private sector. ”

“ Lawyers are trained to anticipate risk and insulate clients from liability, rather than to advocate for an approach seen by a client (and entire sector) as carrying risk and adverse to interests. Legal advice is perceived to be expensive and therefore inaccessible to many GLAMs. As a result, GLAMs often rely on one another for interpreting and applying law. Ultimately, these and other factors shape the policies that reveal both consistencies and inconsistencies across UK GLAM practices and inflexibilities around risk, rights management and collections reuse. ”

“ As discussed, data requires creative input in its creation, selection or arrangement to attract copyright in the dataset. In addition, sui generis rights can protect a database, but the data itself can be too descriptive or so basic that no protection extends to the individual data components included in the dataset or database. ”

“ It should be noted that a demand for such technologies creates a market for restrictive interfaces that replicate barriers to the public domain, rather than a market for permissive interfaces that support new types of public reuse, knowledge generation and innovation. The effect is to further direct public funding into a private sector that responds to such demand, rather than building new technologies that emancipate the potential of the UK’s outstanding cultural heritage collections and support public demand. ”

“ Moral rights are a red herring in the UK when dealing with public domain works: because moral rights expire alongside the copyright, they have ceased to exist. However, the attraction to claiming copyright in digital surrogates is that the right of attribution to the institution can be secured through the new copyright. ”

“ As data controllers and public authorities, GLAMs must guard against disclosing information that has been derived from personal data and process it to ensure individuals cannot be identified. These laws must be balanced against others promoting public access and reuse. For example, an out-of-copyright document digitised by scan as part of the public task may contain personal or sensitive information that requires redaction or prevents the GLAM from disclosing or supplying the information, even though the digital surrogate is in the public domain. ”