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Building Copyright Consensus

Four key areas where the GLAM ecosystem should work to build consensus

Published onOct 19, 2020
Building Copyright Consensus

8. Building Consensus

If open GLAM is to achieve its goals, building consensus across the GLAM ecosystem appears to necessary on (at least) four initial points:

  • The status of IPR in non-original reproduction media. No new rights should arise in basic or non-original reproduction media. To aid this, and future rights management, a clear and useful definition of “open” is necessary to inform: (1) owners’ appropriate application of licenses, tools, and labels to reproduction and other media; and (2) the public’s appropriate reuse of reproduction media.

  • The sharing of basic or non-original reproduction media, other materials, and relevant workflows. The voluntary sharing of this data and information is paramount to open GLAM.

  • The availability of data and its appropriateness for access and reuse. Not all data should be “open,” digitally available, or even accessed. Some materials should be set aside from digitization initiatives and IPR frameworks entirely.

  • The myth of neutrality. GLAMs, open GLAM, and the wider ecosystem are not neutral spaces. Digitization, access, and the application of IPR (even where supported by law) are not neutral acts.

Building consensus on these initial points will result in more appropriate management of and engagement with digital and material cultural heritage in the public domain.

8.1. Consensus No. 1: No New IPR in Non-Original Reproduction Media

The starting point for consensus-building requires an agreement on the application of IPR to non-original reproduction media.

In the years following the Bridgeman Art Library decision,1 dozens of scholars have advocated against originality in reproduction media and documented the impact a copyright claim can have on the public domain and access,2 scholarship,3 public reuse,4 and public missions.5 Yet, research reveals the pervasiveness of copyright claims despite its drawbacks and thin legal status,6 as well as the harm it poses by effectively privatizing public domain collections.7 As detailed in Copyright and Human Rights, IPR claims in non-original reproduction media result in damage to public welfare, cultural diversity and memory, and knowledge generation in an increasingly networked environment.8

There is also a legitimate possibility that this legal question may never be definitively resolved, at least not with an outcome suitable enough to deter owners from making future copyright claims in new reproduction media and formats meant for cross-border environments. New technologies for reproduction will raise novel questions to whether IPR can arise in the various digital outputs. The GLAM ecosystem must commit to disclaiming IPR in non-original or basic reproduction on principle and in line with public missions.

8.2. Consensus No. 2: Voluntary Sharing is Central to Open GLAM

The second point for consensus-building requires a commitment to voluntarily share high-quality reproduction media and other resources that can support wider participation in open GLAM.9

Even if no rights arise or are claimed, owners are under no legal obligation to voluntarily release non-original materials or other IPR protected media with limited commercialization value, like metadata templates or digital workflows.10 Technical measures may also be taken to mediate access to what is shared. For example, some owners release (very) low resolution data under open frameworks, while restricting access to higher quality data through copyright claims. Open GLAM is undermined when high-value datasets are generated but withheld from the public because of their commercial potential (the key word being potential).

Whenever possible, owners should share data for free. This commitment does not suggest that all fees for providing digitization and delivery services are inappropriate. Only licensing fee-models are neither appropriate for non-original media nor transparent. Instead, licensing models are opaque and distort the actual costs of digitization programs.

This commitment (re)centers users and “open” in open GLAM by ensuring the public will have access to high-quality public domain data, where it exists, and can reuse that data and exercise their right to participate in cultural life, as envisioned by human rights and copyright law. It also leads to greater support among the GLAM ecosystem, through the sharing of administrative processes, tools, and lessons learned to improve the design and efficiency of new digitization programs for newcomers and less well-resourced GLAMs.

8.3. Consensus No. 3: Not All Data Should be Open or Accessed

The third point for consensus-building requires a willingness to set certain materials aside from digitization, IPR, digital access, open access, and even access systems entirely. On its face, this might seem to contradict Consensus No. 2 to voluntarily share high-quality data, and widely. However, Consensus No. 3 introduces nuance to our assessment of what is fit for this purpose, or any of the acts of management leading to open access, and who should decide and guide those assessments.

This view aligns with the human rights measures and declarations discussed in Human Rights, and centers considerations like privacy and the sensitivity of materials. In the rush to digitize and reach new audiences and make everything online, some serious mistakes are being made by everyone in the GLAM ecosystem. Not everything is appropriate for digitization, IPR, digital access, open access, or even physical access. Each of these acts, and reuse, can harm the individuals or cultures associated with the collections, their descendants, or wider communities. This is particularly the case with ancestral remains. How this can materialize is discussed in Decolonization and Indigenization.

8.4. Consensus No. 4: GLAMs, Digitization, IPR, Open GLAM, etc., are Not Neutral

The final point for consensus-building requires the ecosystem to acknowledge and accept that our cultural and legal institutions are not neutral. Nor might any “objective” sense of the word be defended as suitable for all culture(s).11 We’ll summarize this now, and revisit this chain of non-neutrality in more detail in Power Inequities.

In 2017, GLAM advocates La Tanya Autry and Mike Murawski started the #MuseumsAreNotNeutral campaign to bring attention to the myth of neutrality in our cultural institutions and demand equitable approaches to their transformation.12 As Autry and Murawski and others have highlighted, our institutions have a long and direct history tied to the meaning making and value making that has occured during periods of colonization and political power.13 These ties continue to inform and shape contemporary approaches to acquisition, cataloging and collections management, exhibition design and display, authority and knowledge production, and countless other practices that are deeply embedded in heritage institutions and academic fields.

Episode 27: Museums Are Not Neutral by Museopunks

One of these practices is digitization. That initial decision to “preserve” or “copy” a work, and the selection of which work to digitize and make a new digital asset is not neutral either. The act of digitization is a new act of collection and/or acquisition related to the work itself. Nor is the resulting “copy” of the work neutral, since it represents a specific and cultural idea of what it means to make a “faithful reproduction.”

Moreover, where that reproduction physically takes place will trigger the specific legal system(s) that apply to that activity and its outputs. This raises another non-neutral practice, the decision to claim IPR and/or release the materials via open access frameworks.

This myth of neutrality and objectivity even extends to the systems that have given us property and copyright law, and the corresponding concepts of ownership, exclusivity, creativity, and originality, that our legal and cultural institutions reinforce through the regulation and management of culture. These dominant systems also require equitable approaches to their transformation, or at least to limiting their application and the harmful effects they can have.

These questions are becoming increasingly urgent for the open GLAM ecosystem to tackle. Without consensus on these four areas, we cannot build consensus around the more complex emerging questions for open GLAM discussed in New Areas of Focus. But a more holistic understanding of IPR, heritage management, transparency, and access is required to do so. The rest of this section outlines disparate practices and aims to provide greater clarity so we might develop a more critical approach to open GLAM.

Continue to Clarifying “Open”

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