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Contracts

Contractual methods can also be used to restrict access onsite and online

Published onOct 19, 2020
Contracts
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How this area overlaps with open GLAM: Other areas of law can directly or indirectly impact access to physical and digital cultural heritage. Property or land law enables owners and stewards of cultural heritage to set other legal parameters around access, such as through visitor photography bans or other policies that operate as a contract between the visitor and the party permitting access to public domain works. Other types of contractual restrictions can include the terms of use on a website or the terms delivered along with reproduction media outlining how the materials may be used. 

National aspects of employment, labor, or tax law can also impact determinations of copyright authorship, ownership, entitlements, and enforcement. So can funding obligations when they mandate open licensing. We won’t go into too much detail with these, unless relevant, since they depend on a range of factors that can differ from one country (or funder) to the next. Here, we’ll focus mostly on contracts.


4. Contracts

Another popular method used to restrict reuse of materials onsite and online is via contract. Contracts might be established through mechanisms like website terms of use, via content delivery, or visitor photography policies. Owners often use copyright and contract to bolster (alleged) rights in reproduction media with various goals and consequences.

  • Restrictions to protect licensing revenue. Many GLAMs double up on copyright and contract to ensure licensing revenue streams are protected. However, this revenue is increasingly challenged by ongoing legal developments, the nature of the digital realm, and other competitors entering the market.

  • Contracts and copyright overreach. Rights claimed through contracts often support the copyright claim but extend restrictions around use beyond any legal protections recognized by copyright law. And, like the copyright claim itself, not all of these legal contracts would be enforceable.

A number of risk-averse decisions may shape and inform these contractual terms. Ultimately, ambitions to make collections available may be mediated through a matrix of institutional policy statements that account for various prevailing legal frameworks in addition to public missions. We’ll briefly outline how contacts contribute to this matrix below, before turning to also explore why in Barriers to Open Access.

Most GLAMs are living organizations, meaning they are constantly acquiring new works and display only fractions (fractions!) of their collections. Digitizing those collections provides new possibilities for display and research, particularly for works that cannot be accessed frequently due to fragility concerns, or for less popular collections that may never be destined for physical display. Yet, digitization also produces a new asset to maintain. This new asset can be commercialized to support the costs associated with digitization and the source object’s preservation.1 But this business model is dependent on preserving the functional barriers around both the digital collections through copyright and terms and conditions and the physical collections through visitor photography policies.

Visitor photography policies operate as contracts onsite; such policies use combinations of property, land, and contract law to restrict photography and reuse as a condition of entry. Extending access to the collections and allowing reproduction can introduce competition with GLAM reproduction media. This means physical access is often defined in a way that prevents visitors from making their own copies or that limits what can be done with them once visitors leave the institution.2 Most often, this translates to restrictions on photography for personal use or study, and explicit prohibitions on commercial reuse. Such restrictions essentially generate a third party (i.e., GLAM) copyright-by-contract in visitors’ photographs.

They have also been legally enforced. In Museumsfotos, the German Federal Court upheld a photography ban, finding a visitor violated the museum’s conditions of entry when he uploaded twenty of his own photographic reproductions of public domain artworks to Wikimedia Commons.3 Since the basis for this decision rests in contract law, it is interesting to consider what the outcome might be when the photographs are uploaded or disseminated by someone other than the visitor, and to whom the contract does not apply. (It’s worth noting that the same scenario could apply to digital contracts and website terms of use.)

In reality, it’s unlikely that many visitors would produce the type of high-quality surrogates able to compete with GLAM surrogates, considering reproductions may be made in gallery spaces or reading rooms and with limited access to lighting and technical equipment. But even even with decent attempts, visitor photography is not GLAMs’ only competitor.

As Guy Pessach argues, “A related, yet more discreet effect refers to the barriers of entry that traditional memory institutions now face due to copyright’s licensing revenue. Once commercial players enter the field of digitized cultural retrieval, competition arises between commercial intermediaries and traditional public-oriented cultural institutions.”4 Sometimes, these intermediaries enter into contracts with GLAMs to digitize their collections, which may impose obligations around access parameters that protect an intermediary’s ability to compete and investment in digitization. Pessach also reminds us that, “One element is competition over potential audiences.”5

Pessach highlights how these competitors have been steadily growing in numbers: Getty Images, Bridgeman Images, Google Cultural Institute, Google Books, and the Internet Archive (and National Emergency Library) all digitize and aggregate material for users online.6 They are also raising expectations about what should be online, and at what quality and quantity, particularly with companies like Ancestry.com or government-funded aggregators like Europeana and the Digital Public Library of America. Moreover, user-led photography databases like Flickr, Flickr Commons, and Wikimedia Commons, as well as CC Search and even Alamy Stock Photos aggregate cultural content for reuse, enabling users to sort by open license with the exception of Alamy. At the same time, many of these same platforms and competitors provide GLAMs with new opportunities to reach wider audiences and direct new traffic to websites and digital collections.

The onset of open GLAM has pitted access and commercial objectives against each other, in addition to demands for audience bases. This has caused many GLAMs to take measures to protect revenue streams and control how collections are accessed and used. Online this can translate to broad blanket ownership statements, technical restrictions around data access and quality (or no access at all), and prohibitions on reuse of digital content without permission and/or a license. Onsite this translates to visitor photography prohibitions or requiring the application of restrictive reuse licenses to reproduction media, even in cases of researchers seeking to digitize and study special collections through publicly funded research.7

These restrictive policies may limit competition in licensing income, but they increasingly operate to alienate audience bases both onsite and online.

4.2. Resisting Contract Law and Overbroad Terms and Conditions

Studies by Kenneth Crews and Melissa Brown, among others,8 have documented the many ways in which contract law is also used to assert overbroad rights over digital media online, or what Crews has called “copyright overreach.”9 The range of rights claimed through terms and conditions often support or resemble IPR claims, but extend well beyond their legal protections. This is especially true when they are used to claim rights in non-original reproduction media.

The legal effectiveness of any terms will turn on principles of national contract law.10 Whether they are binding or not, overbroad terms may purport to license the use of all media online in expressly stated ways, or in some occasions not at all. These terms are generally written in dense legalese making them difficult to understand even for those legally trained. Terms on one webpage might conflict with other reuse statements online.11 Upon delivery, reproduction media may also be accompanied by an agreement subject to another complex system that limits the file’s use.

At first glance, terms of use appear to bind, creating a contract of adhesion between the user and the GLAM. However, whether these terms are intended to impose contractual relations on a user is not always clear; similarly, whatever the intention, whether a binding contract is actually created is something that can only be determined on a case-by-case basis and a jurisdiction-by-jurisdiction basis.12

As GLAM practices shift around copyright in reproduction media, for example, after national implementation of Article 14 in the EU, the tendency may be to recreate copyright-based protections via contract-based obligations through terms and conditions. However, Ruth Okediji warns us against the “steady systematic trend towards the displacement of copyright rules for contract rules.”13

In our case, these extralegal, individualized systems support the second enclosure of heritage collections and pose a threat to the core legal principles of the public domain. GLAMs should forego asserting contract-based restrictions around digital collections in place of those previously provided by copyright law, unless clearly justified and narrowly tailored in scope (e.g., privacy or cultural sensitivity reasons). These are discussed further in New Areas of Focus.


Continue to Barriers to Open Access

Comments
3
DS
Dorothea Salo: Consider defining this? I know what it means, but a great many non-lawyers won’t.
DS
Dorothea Salo: DPLA isn’t government-funded, except through competitive government grants.
DS
Dorothea Salo: DPLA isn’t government-funded.