Introduction

Introduction

Over the past decade, the cultural heritage sector has increasingly adopted open access policies for digital collections. Millions of collections images and data have now been released to the public domain for any type of reuse, with that number growing weekly. The benefits have been salient, ranging from expanded audience reach and creative reuse to user discoveries, generating deeper knowledge, appreciation, and innovation around heritage collections. A paradigm shift that has been building for years is now starting to take hold.

At the same time, a massive amount of work remains to be done. Based on data combined from multiple sources, it appears less than 1% of GLAMs worldwide release materials via open access frameworks.1 Those that do take a seemingly-infinite range of approaches to managing any intellectual property rights in those materials, the types of reuse permitted, and the scope, quality, and formats of the data released. As these inconsistencies multiply and spread online, so do their potential effects. For example, how might these varying standards shape reuse patterns and where users focus creative innovation and new knowledge development? And how might that affect or even skew our present understandings of value and knowledge trajectories? What impact will this have on future understandings of the past? And, importantly, what radical and untapped potential still lies dormant among the immeasurable amount of undigitized collections held worldwide?

One thing is clear. GLAMs cannot be expected to digitize and support open access without significantly-expanded government support. The rising costs of digital technologies, data preparation and management, and the expertise necessary for open access release are prohibitive, particularly for smaller and less well-resourced GLAMs. In the wake of the 2008 economic crisis, unprecedented structural changes to government expenditure led to successive years of tax cuts and reduced financial support for our cultural communities and institutions. This situation is now dire with the added impact of COVID-19. Alongside new funding cuts, GLAMs have lost the crucial revenue generated by foot traffic onsite while expectations of open access rise by global audiences who may be indefinitely homebound. As income continues to be threatened, GLAMs must search for alternative sources of revenue or increasingly rely on partnerships with the private sector to offset loss. The effect may be to walk back significant progress made in the past decade, as further reductions result in loss of staff, institutional knowledge, and expertise, and increase GLAM reliance on commercial revenue sources.

This resource cannot solve these problems, nor does it expect GLAMs to redirect priorities to digitization and open access in the face of operational survival. What this resource can do is bring greater clarity to a massive issue that requires and fails to receive the coordinated support and expertise it needs: how to approach rights management during the digitization of public domain works.

Data increasingly shows that new direct and indirect revenue generation can follow participation in open GLAM. It is becoming imperative to aggregate and analyze this evidence and produce new guidance on how to implement open access business models that bring in more income than current licensing models. Doing so will improve conditions for the sustainability of digitization projects and result in the release of rich open access materials to stimulate the creative and entertainment industries, educational sectors, and new technological innovation.

This resource is the first stage of an initiative by OpenGLAM to foster more inclusive and balanced conversations around digital cultural heritage management and the modern reality of open access. We hope that by providing guidance around the rights management issues and highlighting new areas in need of attention, the GLAM ecosystem will be able to come together and develop a Declaration on Open Access to Cultural Heritage to support wider open GLAM adoptions and more appropriate management of digital cultural heritage.

Clarifying the Scope of this Resource

From the outset, it is necessary to clarify the scope of this resource regarding what exactly GLAMs may extend open access to. There are various reasons why certain collections or media are not openly licensed. Copyright is complicated, and lasts a very long time. GLAMs steward these in-copyright works and must respect the intellectual property interests of third parties or other restrictions around them. These obligations naturally limit the digitization and release of more contemporary collections, unpublished works, orphan works, and other subject matter.2

This resource discusses the layers of rights GLAMs do have control over. For the most part, this includes the reproduction media generated around public domain works. In theory, this extends to the dormant layer of rights that could be claimed in reproduction media and enforced once the underlying work passes into the public domain. We’ll also discuss certain legal exceptions that enable access to in-copyright materials for purposes like disability access.3 GLAMs should make wider use of them and note that these same exceptions might apply to any GLAM-generated media in which intellectual property rights are claimed.

We must also clarify that whether GLAMs release materials under open access frameworks should very much depend on the appropriateness of the underlying materials. Privacy concerns, ethical questions, and the sensitivity of materials may render some collections unfit for open access, access, or even digitization. With each institution and collection, underlying problems and regulatory protocols are not the same. This means collections will be affected differently, and institutions may not be able to participate for any number of legitimate reasons.

These variants, and others, shape the spread and representation of open access across Galleries, Libraries, Archives, and Museums. For example, archives and libraries typically steward material-types that raise privacy issues or require complex interfaces to manage and display multi-page formats, presenting challenges that galleries and museums may not encounter, or at least do less often. But even within an institution-type, these variants can materialize and impact participation. With galleries and museums, ethnographic and historical collections may require greater overall care, attention to, or limitations around digitization and open access than, for example, natural science and fine art collections. They also control where open access efforts or arguments are directed by various advocates. Galleries and museums sometimes seem to dominate this discussion, and, more specifically, art museums given the value of fine art collections and the market for their digital surrogates.

In reality, almost every institution manages collections across the G-L-A-M spread. Museums typically have their own libraries and archives, however small they may be; libraries often steward archival materials or visual artworks; and so on. Viewing these various issues as independent to a specific sector, jurisdiction, institution, collection, or object can make the work required for open GLAM seem almost insurmountable. Yet the GLAM sector itself has demonstrated limitless ways to innovate and support one another along the path to open access. What now seems needed is a coordinated and centralized effort to aggregate, advertise, connect, and support this work going forward.

Difficulties with Scoping the Open GLAM Landscape

It’s hard to sketch out an accurate global picture of open GLAM activity. We lack official statistics on the number of cultural heritage institutions worldwide, let alone those that have embraced open access.4 Scholarly and governmental studies conducted in recent years provide sector-specific, regional, or local data that shows uneven distribution across jurisdictions, and across the G-L-A-M sector. The data we do have suggests a relatively tiny minority of institutions engage with open access, despite the vast majority holding at least some public domain materials.5 Rather than taking a blanket approach, it seems most GLAMs engage on a collection-by-collection basis, tinkering at the edges of open access policy making. The data also demonstrates abundant confusion around what open access means, and what legal or cultural norms should inform that assessment.6 Consequently, open access programs typically materialize as individually-tailored exceptions, rather than as sector-wide default rules.

Numerous factors frame the decision to go open. Adoptions may be backed by a national or regional policy or mandate,7 sector-specific advancements,8 top-down decision making or bottom-up organization.9 By contrast, participation may be constrained by limited access to technology,10 lack of copyright knowledge and expertise,11 prohibitive costs associated with digital,12 commercialization desires,13 unyielding managerial stances,14 or inflexible IP regimes.15 Such conditions have resulted in stronger showings by well-resourced players in areas with more liberal copyright exceptions and limitations, particularly in Europe and North America. These GLAMs laid crucial groundwork. Their willingness to experiment and embrace risk-taking enabled others to leap over countless hurdles toward open access implementation and take reflexive approaches leading to further advancements. What has resulted, however, is not exactly an unbiased or easily replicable path for others to follow.

This groundwork similarly shaped how open GLAM decisions are made around rights management and access parameters for digital media. So far, copyright has dominated this debate. This is because upon digitizing a public domain work, key questions arise concerning the data’s originality, authorship, ownership, commercialization, and ability for cross-border exchange. These questions are unsettled, and often contentious. But the notion that works in the public domain should remain in the public domain once digitized is the founding principle of open GLAM. This means no new rights should arise or be claimed in reproduction media of public domain works. Indeed, open GLAM celebrates technology’s potential to free source objects from physical locations and conservation concerns and challenges efforts to conserve exclusive authority over cultural memory. The movement embraces possibilities for new knowledge generation and creative innovation as envisioned by the rationale behind the public domain.

Open GLAM now includes the added challenge of protecting the public domain and enabling (appropriate) access with severely diminished or non-existent resources. However, doing so aligns with GLAMs’ public missions and core goals. As Pamela Samuelson has argued: “The public domain serves at least eight distinct, and often complementary, values: as building blocks for the creation of new knowledge, enablers of competitive imitation, enablers of follow-on innovation, enablers of low cost access to information, enablers of public access to cultural heritage, enablers of education, enablers of public health and safety, and enablers of democracy.” As stewards and educators, GLAMs epitomize these values. Yet many struggle to embrace open access as a central function of their missions. Some frame data releases as “giving” or acts of generosity. Ultimately, serious underfunding alongside the allure of commercial licensing income, sustained authority, and control imbued in a copyright claim diverts GLAMs from supporting these parallel, mission-aligned goals.

It is crucial for GLAMs to take a collective role in resisting commercial interests that seek to re-propertize the public domain via digitization and IPR. While the OpenGLAM initiative and this resource can provide support to some of the technical or legal questions, the wider ecosystem must come together to co-develop new innovative approaches to exploring open access business models for a more sustainable open GLAM.

Expanding Open GLAM beyond Copyright

Copyright remains the cornerstone of open access to cultural heritage, but strong bases also sit in human rights law and other ethical parameters that might shape how access is extended and for what purposes. These parameters can map onto or exist apart from more familiar copyright or public domain frameworks. In this digital era, the need to expand our awareness, understandings of heritage management, and the communication of these parameters outside of IPR mentalities is gaining urgency and importance.

To begin, binary assumptions of in-copyright versus public domain fail to account for many communities’ cultural materials, belief systems, and access parameters that have formed outside of the proprietary logic that supports an exclusive monopoly.16 These communities also have been historically marginalized and excluded from participating in the political systems that have shaped the IPR regimes under which we all operate.17 Even the idea of property and ownership can be contested, carrying legal constructions and consequences incompatible with many belief systems. Given the international nature of many heritage collections, these issues gain new relevance when preparing to digitize and release collections online to a global audience.

Moreover, to refer back to the dire economic situation GLAMs find themselves in worldwide, the pressures caused by diminished public funding, emerging technologies, ongoing legal developments, and expanded audiences and expectations around digital are experienced differently and disproportionately in many parts of the world. This impacts how GLAMs are able to respond (or not), as well as who has access, to what heritage, and which new narratives and knowledge can be generated around it. These power inequities and their effects require careful consideration by the open GLAM ecosystem.

Meanwhile, digital visibility is critical to maintain relevance as competition for attention surges across cultural and entertainment sectors, even prior to COVID-19. Attracting private partnerships with the promise of big data and sophisticated IPR may lead to expanded audience reach and augmented income, but it often requires trade-offs around autonomy, privacy, and sustainability. The final form of these contractual agreements, and any subsequent effects on audiences, may vary depending on an institution’s size, collection, or bargaining power.

These considerations, and others, have yet to receive adequate attention by open GLAM. Many are being influenced more by industry leaders rather than lawmakers and heritage professionals as a result. As evidence of this grows, the decisions GLAMs make involving digitization, IPR management, and open access can have real consequences for their audiences, the general public(s), local communities, and individuals in an increasingly-networked information society.

This resource undertakes a critical review of open GLAM to scope out and address these challenges. It brings in epistemic questions that many are asking around cultural heritage collections and their management, and therefore are a crucial part of the open GLAM discourse. If we are to achieve open GLAM’s goals, we must reflect on and (re)design more equitable and nuanced policies around cultural heritage management and engagement in a digital era. Part of that entails revisiting what “open” should mean and how “access” should be extended. Doing so allows us to work towards a more equitable framing for a Declaration on Open Access for Cultural Heritage, accompanied by the guidance to implement it locally.

Why a Research-led White Paper / Resource? (Methodology)

This initiative was triggered by an informal survey conducted in 2018 by Evelin Heidel and Sandra Fauconnier to explore the utility of the “Open GLAM Principles” in the five years after their drafting by the Open Knowledge Foundation.18 The original principles focused on the publication of data online, lacked guidance on how they should be implemented, and highlighted examples by large and well-resourced institutions. The survey sought to better understand the reality of the sector’s awareness of the principles outside of open communities, and in smaller institutions and organizations with less visible collections.

The results revealed a need to establish some baseline values and more substantive and sustainable support for GLAMs at various stages of digital engagement. A decision was taken to produce a (reasonably) comprehensive white paper based on empirical research of open GLAM developments and needs to begin this process.

It quickly became evident that reducing the complexity of open access and range of approaches taken to a typical white paper would be difficult. A huge amount of work and research existed to build on, but many questions remain unanswered around how the law functions (or dysfunctions) across various areas relevant to open GLAM. New research was required to fill these gaps. In the process, the white paper grew into a mammoth of a document designed for use by GLAMs at any stage of open access adoption.

The research began by casting a wide net to establish a foundational basis. It consolidated and considered the significant ongoing and longstanding efforts taken across various disciplines with a goal to identify shared obstacles and identify emerging areas. This involved a review of the most up-to-date open access initiatives, GLAM policies and practices, data-driven surveys and academic literature, reports, white papers, and ongoing legal developments, and ethical considerations faced by the heritage sector and its public(s). This inquiry was then expanded to reflect on “open” in the context of cross-cutting themes identified in the course of this research: power inequities; accessibility; decolonization and indigenization; GLAM- and user-generated IPR; privacy and sensitivity; practical and environmental sustainability; and technical considerations around access and reuse. This resulted in a multidisciplinary bibliography and study of digital initiatives, artworks, podcasts, blogs, articles, books, reports, recitals, manifestos, and preambles from various international organizations, legal bodies, researchers, practitioners, and the general public. In this way, the research took a holistic and interdisciplinary approach to examining open access among material and digital environments.

While reviewing open access policies and practices across the GLAM sector, evidence of misuse and confusion emerged. Some of this evidence is widespread; other instances take the form of well-intended but mistaken efforts to align with open access goals. Because we want to focus on resolutions and problem solving, an intentional decision was made to not cite or attribute these practices. Examples are used to illustrate specific points of contention or even how complicated digitization and open access programs can be, but it is kept anonymous and general.

It is also important to note this initiative began in pre-COVID-19 times and was originally designed very differently. Plans to incorporate editorial contributors, publish the research in stages, and solicit feedback at various conferences and public-facing events over 2020 were adapted due to new timelines, reduced budgets, and mobility limitations. In place of that process, this paper went through internal and external review. We now invite others to join.

The White Paper / Resource

Many copyright and digital cultural heritage nerds will be ecstatic to pore through the equivalent of 100+ pages of open GLAM discussion, while other readers may seek to engage with specific questions or topics. This resource attempts to appease both audiences and equip them with the foundation necessary to participate in the public review, based on the structure outlined below.

White Paper / Resource Structure

The structure is informed by the general observation that GLAMs fall into one of four categories of digitization and open access implementation:

1. Restricted. Digital collections are subject to blanket IPR claims (e.g., “All Rights Reserved”) or opaque text-based policies prohibiting most reuse (e.g., “research purposes only”);

2. In transition. Digital collections either permit reuse under licenses that release some rights but retain others (e.g., CC BY-NC), or are released on a collection-by-collection basis under open-compliant statements (e.g., Public Domain Mark, CC0, CC BY-SA);

3. Full adoption. Digital collections are released under open-compliant statements as a matter of policy (e.g., Public Domain Mark, CC0, CC BY, CC BY-SA); or

4. No collections online. Due to technical, financial, legal, and/or access barriers associated with digital collections management.

The structure corresponds to these categories, scaffolding the arguments from one section to the next. You can skip over settled areas and begin with the section most relevant to your knowledge level or stage of digitization and open access implementation. (Even so, you might be reminded of the misunderstandings noted above.) The goal is to clarify and inform practices for GLAMs falling within Categories 1-3, and stimulate networks and creative approaches to better support GLAMs falling within Category 4. The resource is organized according to five broad themes with the research focused according to the structure below.

Introductory Materials includes Note to the Reader to outline the purpose of the resource, a Glossary to explain how certain words are used, and provides an Executive Summary, along with this Introduction. Pubs in this theme will be helpful for the wider GLAM ecosystem.

Background details the legal areas relevant to open GLAM, as well as the barriers and benefits of open access programs. Pubs in this theme will be helpful for GLAMs revisiting current policies around IPR retention and management in digital cultural heritage, i.e., Category (1) Restricted.

• 1. History of Open GLAM (coming soon) provides a brief history of the open GLAM movement and how it relates to other “open” initiatives;

• 2. Copyright outlines the specific conditions and effects of copyright law that can frustrate open GLAM;

• 3. Human Rights explores the rights that furnish a foundation for open access or which might limit access and even the application of IPR to certain reproduction media;

• 4. Contracts illustrates how contractual methods might be used to restrict access onsite or online;

• 5. Barriers to Open GLAM examines the barriers to open access most commonly referenced among GLAMs and wider scholarship;

• 6. Benefits to Open GLAM (coming soon) explores the data we do and don’t have around the benefits that can flow from open access data releases and business models.

Justifications outlines key concepts of open access that need revisiting (and explains why) and sets out necessary points for consensus for a Declaration. This section will be helpful for GLAMs implementing or maintaining open access programs and applying licenses, tools, and labels to reproduction media, i.e., Category (2) In transition and Category (3) Full adoption.

• 7. Open GLAM as a Metaphor demonstrates the GLAM sector’s fluid usage of “open access” has led to its disharmonization and confusion for users;

• 8. Building Copyright Consensus outlines four key areas where the GLAM ecosystem should work to build consensus;

• 9. Clarifying “Open” explains what standards for “open access” are necessary to agree upon to introduce consistency to practices and legal certainty around reuse;

• 10. Power Inequities (coming soon) highlights the various power imbalances that should inform open access programs and their goals, including the impact of open access on GLAMs and their audiences in Category (4) No collections online.

New Areas of Focus examines emerging themes and the necessary legal, ethical, and policy considerations for more equitable access and management of cultural heritage. This section spotlights initiatives exploring these themes and will be helpful for GLAMs reflecting on practices, i.e., Category (3) Full adoption. However, these areas require earlier integration to stages of digitization and digital heritage management and should be considered by all GLAMs, i.e., Category (1) Restricted and Category (2) In transition.

• 11. Accessibility (coming soon);

• 12. Decolonization and Indigenization (coming soon);

• 13. Intangible Cultural Heritage (coming soon);

• 14. GLAM-Generated IP (coming soon);

• 15. User-Generated IP (coming soon);

• 16. Privacy and Sensitivity (coming soon);

• 17. Sustainability (coming soon);

• 18. Technical Standards (coming soon).

The resource concludes with Declaration Draft and instructions in Public Consultation Process for the call for participation to review and finalize the text, along with Implementation Recommendations.

Initial Principles of the White Paper

The paper proceeds based on the following principles:

• Digitization does not attract a new copyright. Unless copyright is clearly warranted, no new IPR should be claimed in digital outputs. Even when copyright is appropriate, the act of reproduction will produce raw data and other non-original materials appropriate for public release.

• No other areas of law should be used to reconstitute exclusivity over public domain cultural heritage and non-original reproduction media. Examples might include restrictions onsite and online, like overbroad visitor photography bans, contractual agreements accompanying the delivery of digital materials, and website terms that prohibit forms of otherwise legally-permitted reuse.

• Voluntary sharing is paramount. Even without IPR, access remains a separate issue. GLAMs must commit to sharing digital media unencumbered by IPR (where appropriate), in addition to sharing evidence of good practice around digitization workflows and management, open access business models, and other useful topics.

• The public domain is not a neutral concept, inherently accessible, or appropriate for all cultural materials – nor is digitization. Some materials are inappropriate for IPR frameworks and/or digitization entirely. Moreover, digitization and online publication alone cannot enable access for a range of audiences. If open GLAM is to achieve its goals, it must be more inclusive and incorporate more nuanced understandings of access, permissions, and exclusion.

• The rights relevant to open access are more expansive than IPR and require integration into material and digital heritage management policies. This matrix of legal and ethical considerations is discussed in later sections.

• Copyright education is of increasing importance to carrying out public missions. Responsible rights management should extend to clear statements that communicate copyright and reuse parameters to the general public. This aligns with public missions to support and educate current and future generations of creators. This need not include any comprehensive copyright education, but clearly indicating a work’s copyright or public domain status, such as accompanying the information on title cards onsite and images online, will raise awareness of its existence and how it might mediate the public’s engagement or protect their own creative contributions.

• All GLAMs can participate in open GLAM in some way. Limitations and exceptions to this principle will always exist, particularly due to resources. But most GLAMs, for example, hold non-original collections data (even of in-copyright collections), or might explore using volunteer communities and existing platforms to reduce financial barriers to digitization. It is important to bring these GLAMs into the conversation and greater visibility to these collections.

• Open GLAM is no longer exclusive to GLAMs. Users and community groups are active participants in the curation and management of old and new culture. A revised open GLAM movement requires a framework for more equitable heritage management that can be implemented by anyone creating, stewarding, or managing cultural content at international, national, local, and individual levels.

A Note on Plurality, Sources, and Citations

Plurality. It is important to recognize, support, and center a plurality of voices and perspectives. This is fundamental to inclusive heritage management and knowledge generation, and involves rethinking the established systems and forms of governance in place that exclude them. For this, Linda Tuhiwai Smith’s book Decolonizing Methodologies and Roopika Risam’s book New Digital Worlds: Postcolonial Digital Humanities in Theory, Praxis, and Pedagogy are invaluable.

This paper may use the singular form of a given term, but intends for its use to acknowledge multivocality and the diverse forms of representation within concepts such as: culture/cultures, knowledge/knowledges, history/histories, heritage/heritages, public/publics, and so on. There can be great width and diversity to each of these, but the experience or concept the term conveys is not always shared. Accordingly, an attempt is made to avoid framings of universality and cosmopolitanism.

Sources. Plurality important to highlight, because the paper relies on available data and research (in English). The focus on English sources was unavoidable. This is primarily due to the author’s own language limitations, as well as the practical aim of establishing a shared bibliographical foundation for OpenGLAM resources.19 One ambition of the new website is to expand this bibliography to resources in multiple languages. We also selected PubPub and Google Documents for publication so translation software could be used, and openly-licensed the paper to allow for translations by others. Lastly, the Declaration Draft and public consultation process will be published in multiple languages.

This results in an over representation of Global North and English-speaking initiatives and voices. The arguments made highlight the impact of these systems and stress the need for a more inclusive open GLAM movement.

Citations. This paper cites heavily. Each section provides a launching off point for a given topic. Wherever possible, a range of resource types are included: podcasts, video presentations, tweets, digital exhibitions and artworks, digital repositories, blog posts, newspaper articles, peer reviewed journals (both open access and otherwise), edited collections, books, and so on. Using PubPub allows us to embed some of these resources within the text, and explore other ways to experiment with content delivery as this resource develops.

Continue to History of Open GLAM