Keeping an open mind on copyright

Are museums taking the wrong approach to copyright?

A recent ruling by the court of appeal in England and Wales has caused a stir, setting a legal precedent to support the long-running argument that cultural institutions are misinterpreting copyright law and wrongly enforcing new rights over out-of-copyright works.

Although the 2023 THJ vs Sheridan case dealt with a software dispute and did not involve a cultural body, it has important consequences for galleries, libraries, archives and museums (Glam).

The ruling makes clear that digital surrogates of intellectual property – 2D reproductions of original works – do not meet the “originality” test that determines whether a work has copyright protection. The bar for protection is higher than it once was; in 2009, the “originality” test replaced a “skill, labour and judgement” test, which was easier to meet.

The latest ruling confirms that copyright fees should not be charged on digital surrogates of material that is out of copyright and in the public domain.

Copyright licensing is a significant source of income for institutions – fees can exceed £700 for using an image – and there has been concern about what this will mean for the sector.

But as the ruling does not prevent institutions from asking for service, reproduction and contractual fees, many say the case has not affected them.

A Tate spokesperson says: “We haven’t made any changes since the ruling. Our picture library continues to charge reproduction fees for supplying high-resolution images, as it has for years. These are different to copyright fees, which we only charge if the artist (or estate) has transferred the copyright of that artwork to Tate or appointed Tate as their copyright agent.

“We do license low-resolution images for some purposes without charge – including some copyright-protected images and archive items under Creative Commons licences, for example – but we have done this for years, so it isn’t a result of the ruling.”

Rethink needed

But should there be barriers to the sharing of public-domain works? Many believe that the Glam sector needs to rethink its “culture of copyright” – the attitude that the reuse of public-domain cultural heritage collections should be restricted by default.

Over the past decade, there has been growing momentum in favour of open access to information and data across many industries and disciplines – a view championed in the museum sector by groups such as the Open Glam network.

Many international institutions have adopted open-access policies – artworks from collections have been spotted in Ikea, which has used out-of-copyright works from the National Museum of Sweden in its designs, and on Netflix show Bridgerton, which features copies of paintings from galleries such as California’s J Paul Getty Museum.

Andrea Wallace, co-director of the Glam-E Lab at the University of Exeter, which develops open access solutions for the sector, believes UK museums are at a “tipping point” in terms of their relationship with copyright and access.

A lack of legal expertise and confidence around copyright law, and a fear that open access may have a financial cost, have held the sector back, she says.

“A lot of policies [on copyright] are designed to be risk averse instead of saying ‘let’s test this’,” says Wallace. “There’s an incredible loss of value to the sector because it is starting from a position of fearing change.”

She points out institutions providing low-res images free for reuse while charging fees for high-res reproductions goes against the spirit of equity and open access. Wallace says they could instead charge a flat service fee to cover their costs.

She believes museums and their audiences will benefit from a more open approach – and that putting barriers up impedes creativity and free expression.

Cultural institutions that have implemented open access have enjoyed greater brand awareness, says Wallace, and – contrary to the concern that they will lose out financially – have built new partnerships with artists and business relationships with multinational companies.

Stimulating creativity

Open-access collections are being used to stimulate creativity and research. Wallace cites Birmingham Museums Trust – one of nine UK institutions with an open-access policy.

The digital artist Cold War Steve, who is based in the city, used out-of-copyright images from the trust’s collections to create the Benny’s Babbies photocollage, which is now on display in the museum. The trust benefits from all profits from the sale of puzzles and posters featuring the artwork.

In an essay published last year by the Journal of Law, Technology and Policy, Wallace proposed a new framework for improving access and providing legal certainty to institutions that wish to explore open access – arguing that their current approach is inverting the role of the public domain to “serve private, rather than public, interests”.

The essay acknowledges the risks of allowing unfettered reuse – exploring, as a worst-case scenario, the pornography website PornHub’s Classic Nudes guide, a now-defunct app that showed where to find erotic artworks in six museums, and included paintings transformed into live-action porn; it was shut down after cease-and-desist letters from some of the featured institutions.

Wallace urges the sector to weigh up whether this “paternalistic” attitude was justified, when it was clear that the guide had no affiliation with the institutions.

Open access poses practical and philosophical questions for the sector, but more institutions, such as the Royal Albert Memorial Museum, are starting to test the waters (see box).

Wallace believes it would be a “huge missed opportunity” if the Glam sector continues its current strategy.

“People need to see that there is going to be a sea change,” she says. “The institutions that get there first will benefit the most.”

Royal Albert Memorial Museum’s copyright-free initiative is gaining momentum

Earlier this year, the Royal Albert Memorial Museum (Ramm) in Exeter, working with the University of Exeter’s Glam-E Lab, launched an ambitious open-access strategy for its digital collections.

“We began with a small-scale trial on Wikipedia Commons and the number of views rapidly hit the millions,” says Julien Parsons, Ramm’s collections and content manager.

“This gave us the encouragement to proceed with the open-access strategy that was approved by our governing body, Exeter City Council.”

Since the start of the year, batches of open-access images have been released to coincide with its programming or special events. “It seems to be gaining momentum,” says Parsons.

“Mainly, we are providing a source of copyright-free images to students, researchers and enthusiasts for use on their websites or in assignments.
I hope that this will also translate into a source material for artists to use more creatively.”

The museum benefits from improved access to its collections and has saved time on dealing with enquiries and permission requests. The big challenge has been ensuring the assets are cleared of copyright, says Parsons.

“My advice would be start off slowly until you gain confidence and have your systems established. We began by releasing 2D artworks of Exeter that were already clearly in the public domain. We have also started checking our forms for copyright permissions for more-recent artwork.

“Like many museums, Ramm was wary of the issue of copyright in the past,” says Parsons. “The sector needs to overcome these anxieties and gain confidence by better understanding the legalities behind the concept.”

The museum and Glam-E Lab are collaborating on a white paper, due to be published shortly, that will explore the business case for open access.