Fluid usage of "open access" has led to its disharmonization among the GLAM sector and confusion for users
Across the cultural sector, “open access” and “open GLAM” are used inconsistently- in ways that reduce their meanings to just digital access. Such framings of “open” center the GLAM, its individual preferences and interpretations of local copyright law rather than the cross-border digital user.
Subjective approaches to “open.” The term “open access” is commonly used to describe any access-based initiative that makes collections free to view online or download for personal use, rather than reuse for any purpose. This conflates the status of the platform with the status of the materials. There is demonstrated confusion around what “open” means in relation to GLAM, and to digital collections.
International measures and initiatives largely defer to GLAMs. Many international measures and initiatives on digital cultural heritage and digital surrogates avoid setting clear standards for “open access” or any obligations for the rights management of non-original or basic reproduction media of public domain collections. This allows signatories and participants to frame activities as open access without committing to
Below, we’ll set aside instances where a lack of copyright knowledge or expertise leads to misunderstandings or inability to participate in open GLAM, and instead briefly discuss how fluid understandings of “open access” have led to disharmonization among the sector for those with copyright knowledge and digitization capacity.
“Open” is currently used to describe a range of subjective approaches that vary significantly.1 For some, “open” describes basic acts like making low-resolution images viewable online for free, and without watermarks. For others, it extends to permitting limited reuse through the website terms, such as for personal, educational, or non-commercial purposes. Many treat the application of any Creative Commons license as opening up collections by enabling the public to reuse works under the selected license’s terms, no matter how restrictive (e.g., CC BY-NC-ND). These subjective and varying practices can result in inconsistent or incorrect applications of licenses and misattribution,2 missing metadata and digital provenance,3 and other technical issues that impede circulation and reuse.4 The policies for these “open access” programs often make sweeping or inaccurate statements about international or national copyright law as justifying copyright and licensing models. The effect is to reduce open access to a metaphor.
With no prevailing interpretation, these differences have been documented by many. Early reports on GLAM open access are understandably vague around its substance, scope, and application.5 Later studies cite considerable difficulties distilling a clear standard and document the range and inconsistency of evolving approaches,6 or even conflate meanings and misstate how they operate within open GLAM/OpenGLAM.7
It should go without saying that open is not synonymous with access. But current practices suggest many GLAMs feel otherwise. Here, three points must be addressed and clarified. First, making digital collections online provides digital access, but not open access. Second, Creative Commons licenses are not open by default. Despite not reserving all rights in the copyright bundle, licenses like NC (non-commercial) to reserve commercial licensing benefits or ND (no derivatives) as a protectionist measure to deter modification or misuse do not align with international definitions for open. Third, even when an open-compliant license is used, a valid copyright is necessary to support its application. GLAMs might opt for Creative Commons licenses like CC BY (attribution) to maintain connections to the host institution or CC BY-SA (share like) to ensure its follow-on reusability. However, the application of any copyright-based license to non-original material is legally inappropriate for reasons discussed in Copyright. Cumulatively, these practices reflect a long trend of GLAMs grappling with the desire to participate in the open access movement while claiming copyright and control over the digital surrogates of public domain collections.
These practices fundamentally contradict the 2013 OpenGLAM principles and freeride on the open GLAM movement’s goodwill. Access to cultural heritage is important, but digital access to public domain collections must not be conflated with open access to public domain collections. The former provides passive access while the latter enables active access by facilitating the meaningful reuse of collections (i.e., not claiming copyright and/or permitting reuse of original media for most purposes, including commercial).
International cultural heritage initiatives and informal agreements or guidelines on the management of cultural heritage similarly fail to formalize open standards or meaningfully acknowledge and frame IPR’s (appropriate) role during digitization and rights management.
To be fair, this might seem outside their scope. But it’s not really, when you consider the long-term impact that an IPR claim can have, and the spread of digital technologies and heritage digitization – and particularly when the initiative focuses on digitization. Some examples include:
The 2011 Universal Declaration on Archives8 is a one-page, joint declaration from UNESCO and the International Council on Archives. The Declaration promotes the essential role archives play “in the development of societies by safeguarding and contributing to individual and community memory,” and recognizes that “open access to archives enriches our knowledge of human society, promotes democracy, protects citizens’ rights and enhances the quality of life.” Signatories commit to undertake work towards the management and preservation of collections in ways that ensure their usability and accessibility to everyone, “while respecting the pertinent laws and the rights of individuals, creators, owners and users.”
The 2013 UN Hangzhou Declaration9 is a six-page, joint declaration from UNESCO and participants in the Hangzhou International Congress on the importance of culture to sustainable development policy. It promotes the role of culture “as a system of values and a resource and framework to build truly sustainable development, the need to draw from the experiences of past generations, and the recognition of culture as part of the global and local commons as well as a wellspring for creativity and renewal.” The Declaration calls on governments to guarantee “access to cultural goods and services, free participation in cultural life, and freedom of artistic expression.” It recognizes heritage as “a critical asset for our well-being and that of future generations” and asks governments to “value, safeguard and transmit culture to future generations,” while also encouraging public-private partnerships that “can provide alternative and sustainable models for cooperation in support of culture.”
The 2017 ReACH Declaration10 (on the Reproduction of Art and Cultural Heritage) is a three-page declaration spearheaded by the Victoria and Albert Museum (V&A) in partnership with the Peri Charitable Foundation. The Declaration was launched on the 150th anniversary of the 1867 Convention for Promoting Universally Reproductions of Works of Art for the Benefit of Museums of All Countries, an initiative led by Henry Cole, the director of the V&A’s predecessor the South Kensington Museum. Cole also served as Secretary for Art in the Department of Science and Art in the Government. During his tenure as director, Cole made the decision to not claim copyright in the museum’s early photographic reproductions and supply them to the public at the cost of their production so they could be disseminated faster and more widely.11 The 2017 ReACH Declaration revisits the 1867 Convention with the objectives of exploring how at-risk cultural heritage might be preserved, and “to debate the creative opportunities that copying these works offers to a global audience.” This includes rethinking approaches to “the reproduction, storage and sharing of works of art and cultural heritage in the twenty-first century.” The initiative highlights the lack of methodology for how GLAMs should engage with digital technologies “to produce, store, and share museum and heritage assets,” and recognizes that “legal protocols and procedures have not adapted to these realities, and often act as roadblocks to new practice.” The Declaration “promotes the vision that works of art and cultural heritage should be preserved and shared as widely as possible throughout the world” and broadly references goals of open access, sharing, reuse, and openness. It refers to the digital recordings or reproductions and the data generated in the process of faithfully reproducing these works as “Records.” With reference to “sharing,” stewards are encouraged to “make Records freely available to the public for personal use and enjoyment and for non-commercial research, educational, scientific and scholarly uses,” and to “share those Records of Works as widely as possible” including by “proactively addressing issues of equal access to digital technology on a global scale.” The Declaration encourages stewards to “use established and standardized licensing schemes and symbols that convey to the public the manner in which the Records of Works may be shared and reused, including open access content.”
The 2020 Principles and Guidance for Museums and Heritage12 is a nine-page set of principles and guidance on “New Futures for Replicas” by researchers at the University of Sterling. The context acknowledges that creating analog and digital replicas (e.g., “exact copies of an original”) and addresses ethical issues in their management. It recognizes “contemporary ethical considerations include intellectual property, copyright and attribution” and that “identifying and addressing ethical issues is a critical aspect of planning the production of a replica, not least anticipating and resolving copyright issues.”13 It also highlights the “creation and circulation of replicas beyond museums and heritage sites can enable wider access and engagement with artefacts through replicas.”14 The appendix also provides questions to ask of replicas and their appropriate management informed by various evidential, historic, aesthetic, and social/spiritual values.
Without any clear standard for “open access” and with complicated national copyright rules to consider, we cannot fault such initiatives. Moreover, they involve difficult discussions when building consensus that must account for institutional politics and other dynamics.15 Yet, future measures and initiatives must begin to clarify what is expected of signatories and participants with regards to the layer of rights that GLAMs do have control over. Their adoption is voluntary. If GLAMs are not ready or able to implement open practices, they need not commit. But without explicitly acknowledging and accounting for IPR’s ability to impede access to reproduction media, they should not be framed as endorsing open access goals. The lack of clear standards and individualized approaches results in confusion for users.
All of this leads to why it is crucial for OpenGLAM and the open GLAM ecosystem to align “open” with international definitions and work to inject IPR discussions into wider initiatives with access-driven goals. Doing so will reduce disparity among GLAM practices and increase legal certainty around reuse for global publics. The important follow-on effects will be to also validate GLAMs with sensitive or more contemporary collections that are legitimately unable to release reproduction media under open frameworks, and to clarify the standards and reuse conditions around those non-open collections and other in-copyright and sensitive materials.
The evidence demonstrates a pressing need for a consensus-based framework on “open” and its meaning to provide more consistent and supportive guidelines for open GLAM, GLAM participation, digital access, and public reuse.
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