Museums, archives, and cultural institutions have been forced to re-examine their relationship with the digital presentation of public domain works in their collections. This has brought the issue of “copyfraud” to the forefront. Recently, the UK’s National Portrait Gallery (NPG) threatened legal action under UK law against a Wikipedia user for, among other things, copyright infringement of digital photos of public domain works by uploading them to Wikipedia.
This raises some interesting legal issues related to copyright, jurisdiction, and enforcement. In the U.S., the Bridgeman v. Corel decision would probably bar NPG’s claims. Similarly, the U.S. Supreme Court in Feist held that copyright protection is not based on a “sweat of the brow” theory. UK courts have not necessarily agreed. However, there is the strictly legal, and then there is the practical. In the 2005 article Public Domain Art in an Age of Easier Mechanical Reproducibility, Kenneth Hamma, former Exec. Dir. for Digital Policy, J. Paul Getty Trust, highlights the collision of traditional approaches to control over museum collections and the digitization of the public domain:
[R]esistance to free and unfettered access may well result from a seemingly well-grounded concern: many museums assume that an important part of their core business is the acquisition and management of rights in art works to maximum return on investment. That might be true in the case of the recording industry, but it should not be true for nonprofit institutions holding public domain art works; it is not even their secondary business. Indeed, restricting access seems all the more inappropriate when measured against a museum’s mission – a responsibility to provide public access.
Restricting access via copyfraud or DRM defeats the purpose of the public domain, and damages the reputation and mission of the institution holding the original copies of these works. However, the NPG’s disappointing actions should not overshadow the many institutions working to make the public domain accessible to you, the public. The Commons on Flickr is a great example of 27 private and public institutions from all over the world who are making works available with “no known copyright restrictions”. Working with, not against, cultural institutions highlights some of the ways cultural heritage institutions and communities can work together to mutual benefit.
We hope that institutions will increasingly see the the mission value (and financial value — attracting visitors to see original works) of working with communities to open up access to curated public domain works and of proactively marking public domain works as such for humans and computers, e.g., with our public domain tools.4 Comments »
Yesterday the Register posted an article by Charles Eicher on the topic of copyfraud — asserting copyright where it doesn’t exist, or asserting more restrictions than copyright grants. A very important topic — true copyfraud diminishes the commons, either in the sense of propertizing the public domain, or effectively reducing the scope of uses not restricted by copyright.
Unfortunately, the article merely uses this interesting and important topic as a jumping off point for hyperbole. On the public domain and copyfraud, comments on the article offer far more insight than the article itself.
Eicher has in the past called advocates of Creative Commons “freetards”. Apparently he finds name calling more interesting than research, for on the third page of his copyfraud article he demonstrates willful ignorance on the topic of Creative Commons:
Now Creative Commons seeks expanded authority to administer the Public Domain, by issuing a “Creative Commons Public Domain License,” as if it was a sublicense of its own invention. Creative Commons is trying to expand its licensing authority over not just newly created works, but all public domain works.
Creative Commons does not have any “authority to administer” the public domain, whatever that means. Our public domain tools are not licenses — there is no “Creative Commons Public Domain License”. CC0 is a waiver that allows a copyright holder, to the extent possible, to release all restrictions on a copyrighted work worldwide. The Public Domain Certification facilitates clearly marking works already in the public domain as such. We also don’t have “licensing authority” over newly created works. All of our tools are voluntary and have an over-arching goal of expanding the commons, more specifically the public domain in the case of CC0 (as much as possible) and the Public Domain Certification (the effective public domain, by making existing public domain works more clearly marked, including with metadata, making them more available and discoverable).
Public domain licensing is still not available to any Flickr user. This forces everyone, from individuals to large public institutions, to contribute their works to the “Flickr Commons” under a CC license, even if the works are clearly in the public domain. Flicker is enacting a blatant power grab on behalf of Creative Commons. They are establishing an extra-legal licensing monopoly, imposing an illegal copyright license structure on free works. And this is the most pernicious effect of copyfraud: it exploits the public domain to aggregate monopoly power for private interests.
Except for the first sentence (regarding which, Creative Commons encourages Flickr to offer a public domain option for all users) all of the above paragraph is blatantly false. Images part of Flickr Commons are not under any CC license. The site’s easily accessible usage statement says No known copyright restrictions. Ideally the site might use a more affirmative public domain assertion, but it is impossible to characterize the statement as a CC license or as copyfraud.1 Comment »