Andrea Wallace

“ 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. ”

“ 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. ”

“ The Government Art Collection's public task is not on the website, but the Crown copyright policy includes a section on Copyright of images' that states " [i] mages of works of art on this site are not covered by the Open Government licence. If you wish to reproduce any of the works featured on this site, please contact the Government Art Collection." [86] The National Archives informs users that images fall outside the public task: "The National Archives actively seeks to maximise the public value of its collection, including by undertaking activities that are beyond its Public Task. ”

“ They reveal more about individual GLAM needs and attitudes than how users can access and reuse digital collections across the UK. The data demonstrates a pressing need to curtail these practices, for the benefit of GLAMs, their staff and users, and the UK economy.
These policies reveal incredibly risk averse approaches, even to public domain materials that should pose little to no risk for GLAM digitisation and public reuse. Many participants noted an absolute fear of copyright and the risk averse nature of institutions, particularly as present among national GLAMs. ”

“ Attribution and integrity rights last for the term of copyright. But it is worth noting that UK employees retain moral rights even where the copyright is owned by their employer. [66] Moral rights can be waived, but they cannot be transferred. For our purposes, assuming a copyright is valid, the question is then who owns the moral rights in digital surrogates versus who can enforce them. GLAM employees and independent contractors who create digital media often waive moral rights or agree for the GLAM to be attributed as part of their contract. ”

“ In the ‘Copyright and permissions’ policy, the British Museum goes further, explaining they reserve all rights for some digitised materials “due to cultural sensitivities, or if doing so would be against any existing Museums policies (such as our human remains policy) ”. [105] In this sense, the Museum’s approach is to make these images available online, claim IP rights as © Trustees of the British Museum and use copyright law (in theory) to secure and monitor ethical reuse. ”

“ The Gallery expressly addresses the public domain, albeit incorrectly, in another webpage specific to its Academic Licence: "Non-commercial research is research whose objective is to put new ideas into the public domain for public benefit and at no cost to the end user. It will therefore normally be financed from public or charitable funds" (italics added) . [21]
These policies reference the term of copyright for the underlying work without explaining what it means for those rights to expire. ”

“ Others define ‘open access’ around information and research, rather than collections and digital surrogates. The Science Museum Group clarifies its goal to “enable audience’s [sic] reuse of images” is achieved through the CC BY-NC-SA 4.0 licence. By contrast the CC BY 3.0 licence “applies to ‘open access’ content such as the Science Museum Group Journal” and the CC0 “public domain attribution” (italics added, as this is a public domain dedication and does not require attribution) applies to “datasets such as the collection metadata”. ”

“ The Museum also commits to publishing "catalogue data about its collections under open licences or as public domain assets" where possible.
York Museums Trust has an extensive frequently asked questions type of policy, with user-centred prompts like "What can I do with YMT's online collections images?" and responses like "Images of works on which copyright has expired are marked Public Domain. We have no particular legal rights over these images, so they can be used for any purpose. Old artworks are a good example of public domain works." ”

“ Many policies delineate between images created for the purposes of performing the public task and activities falling outside of it. For those within the public task, some policies create sets of documents, claim IP rights in them, and/or make use of the Re-Use of the Public Sector Information Regulation 2015 exception to commercialise the documents. [82] In practice, this means GLAMs hold back high-resolution images and entire datasets for commercialisation while publishing low resolution images or basic datasets online under various statements and formats. ”

“ Other policies may exist across GLAM websites and not be referenced within these policies.
4.3. Risking the public domain
Despite whether a work is in the public domain or in-copyright, there are many legitimate reasons why digital collections cannot be made available for public reuse, legal and otherwise. However, such reasons are rarely explained to the user in a way that supports the public mission, educational remits and stewardship of the digital collections. Users need to understand open access, copyright and the public domain, in order to understand how they can use collections. ”

“ East Riding Archives informs users that " [b] y viewing and or purchasing an image from this collection, you are agreeing to comply with copyright licensing regulations. These state your use of the image is for personal use only. The images may not be reproduced, published or distributed in any format including books, magazines, promotional, advertising or any other material in print or media including the Internet, broadcast and private or public exhibition without the express permission of the East Riding Council Heritage Service." ”

“ It notes that while “the British Library, or contributors to its collections, may be the owners of intellectual property in the digitisation of the sound recordings and in the sound recordings themselves, the Library recognises that broader rights and interests [in the materials] reside with the traditional custodians”. ”

“ These and other GLAM references to national and international IP law make no mention of corresponding laws that shape or define the public domain.
A few expressly address rights arising in reproductions. The Government Art Collection reminds users “if the artist of the work is alive, or has been dead for less than seventy years, there will normally be a separate copyright in the work itself in addition to the copyright in the photographic reproduction”. [5] This is not technically accurate. A photographic reproduction is considered a copy of the underlying in-copyright work. ”

“ Additional conditions apply: images cannot exceed A5 when printed or 768 pixels along the longest side online, they can be used only inside publications and the amount of V&A Content used must not exceed 25% of the total content used.
The National Portrait Gallery has extensive and varying policies for reuse of content under a (1) Professional Licence, (2) Academic Licence and (3) CC BY-NC-ND 3.0 licence. [37] Users must apply for the professional and academic licences or submit an email address to activate the download of CC BY-NC-ND 3.0 "low resolution images" (800 pixels wide at 72 dpi) . ”

“ Available for re-use at a charge are "higher resolution images of copyright-expired works in the collection, whether as jpegs or tiff images". [84] In truth, this qualifies Birmingham Museums Trust and others in the 'All eligible data - no new rights' category as falling outside its scope and instead within the 'Some eligible data - no new rights' category. However, because the images are of such a high resolution, this GLAM remains categorised by this report as 'All eligible data - no new rights'. ”

“ UK GLAM Policies on copyright and open access.
This portion of the research asked: How are UK GLAMs interpreting laws and shaping public access to digital media generated around public domain works? The discussion below quotes heavily from public facing policies.
4.1. Introducing inconsistency and inflexibility
Public facing policies can provide insight into internal operations, such as how an organisation views and values its digital collections and interprets various laws and obligations to the public.
Law, itself, is deeply situated in a culture of ‘it depends’. ”

“ The analysis below relies on website policies where GLAMs publish digital media of public domain collections. To aid the reader, footnotes include information on the policy name, the GLAM and its majority approach taken to publishing collections.
4.2.1. Interpretations of copyright law
Many GLAMs make broad statements that all online content is protected by UK law. The British Museum extends this interpretation to international law: “All the content on our website is protected by internationally recognised laws of copyright and intellectual property. ”

“ In some indigenous communities, there may be prohibitions relating to the age, gender initiation and ceremonial status or clan of the person who may see them. The database also contains the names of deceased persons, which may cause sadness or distress, particularly to relatives of these people.” [96] The second notice is provided via the ‘Collections online’. It asks users “to bear in mind that these are working databases that are constantly being updated. It is important to see how objects were perceived in the past ”

“ At least one example extends this claim to even the persons depicted in the artwork. The combined effect across GLAMs is to significantly limit the ways in which the public can use digital collections for a range of typical purposes, as well as atypical and innovative purposes, like computational data and/or as a medium to create new cultural works and knowledge. ”

“ Within these activities, the policy distinguishes between (1) " [s] creen-resolution images of objects in the collection where a Creative Commons license is specified on the webpage [and] documents expressly produced for free and unrestricted public access in partnership with public bodies" and (2) those that are "high-resolution" and "available through the Science and Society Picture Library". ”

“ The policy also states “ [i] mages may not be used in any way which could be considered to be deceptive or which could reflect unfavourably upon the good name or reputation of Sir John Sloane’s Museum”. ”

“ It also asks users for “help in identifying images or data that cause offence or harm”, providing an email address for feedback and suggestions. [95]
The Pitt Rivers Museum does not have a copyright policy but warns users in two places. The first is presented as a sort of terms of use pre-screening upon clicking ‘Search the Collections’, which users must agree to before proceeding. A ‘Cultural warning’ puts users on notice that “some records document research into people and cultures using scientific research models and language from the 19th and 20th centuries. ”