A Culture of Copyright: A scoping study on open access to digital cultural heritage collections in the UK

Front matter

File:A Culture of Copyright - A. Wallace.pdf|center|page=1|600px|alt=COMMISSIONED REPORT February 2022 A CULTURE OF COPYRIGHT A scoping study on open access NATION’S ART heritage collections to digital cultural collections in the UK Andrea Wallace Researcher in Cultural Heritage Law]

Acknowledgements

A large number of people have supported this research and provided invaluable insight during queries, correspondence and interviews. Thank you especially to the interview participants for their time and intellectual generosity, as well as the peer reviewers Ronan Deazley, Douglas McCarthy, Mathilde Pavis, Tala Rahal and Simon Tanner. There are many others who have made contributions to this area over the past two decades, without which this (and other) research would not have been possible. Because of this, a huge thanks goes out to all persons working to digitise and publish collections and data online, especially the risk-takers in the UK and across the globe who have laid the important groundwork for open access and open GLAM.

Executive Summary and Key Recommendations

Executive Summary and Key Recommendations

This report was commissioned by the Towards a National Collection programme (TaNC) to better understand the ways in which open access shapes how the UK’s digital cultural heritage collections can be accessed and reused. The study was undertaken by Dr Andrea Wallace in 2021.

As stated on the website, TaNC’s goals are to support “research that breaks down the barriers that exist between the UK’s outstanding cultural heritage collections, with the aim of opening them up to new research opportunities and encouraging the public to explore them in new ways”. The UK’s galleries, libraries, archives and museums (GLAMs) hold an immense breadth of cultural heritage in trust for the public. In stewarding these collections, GLAMs produce new materials, like documentation, images, scans, data and metadata, research data and publications, and other types of media and knowledge. Many GLAMs extend access to collections and associated materials through websites or external platforms. Open access to digital collections is thus an essential tool to reduce barriers and enable wider public participation.

But what does ‘open access’ mean? And what does it enable the public to do with heritage collections? Across the UK, GLAMs take different paths to answering these and related questions. This research set out to study these paths within a sample of UK GLAMs that includes those involved in TaNC projects, complemented by wider data on open GLAM, digital collections and copyright law. Four types of information inform this report:

Existing empirical data on global open GLAM activity, policies and data volume;

New empirical data on UK GLAMs, public domain collections and rights management, including:

A dataset of 195 UK GLAMs containing information on online collections, rights statements and reuse policies, technical protection measures, publication platforms, open access engagement, commercial licensing practices, data volume and other data points;

An in-depth review of the rights statements and reuse policies of 63 GLAMs selected from that sample;

30 one-hour open ended interviews with TaNC project investigators, UK GLAM staff, external platform staff and open GLAM advocates;

A review of relevant case law and policy developments in the UK and elsewhere; and

A literature review of scholarly writing on copyright and open access to digital heritage collections.

The findings indicate there is no consensus in the UK GLAM sector on what open access means, or should mean. There is also a fundamental misunderstanding of what the public domain is, includes and should include. Indeed, staff perspectives and GLAM policies can vary widely, even within a given institution. Accordingly, this study aimed to discern and outline what support is necessary to address systemic barriers to open access, starting with copyright itself.

Copyright generally protects creative expressions during the creator’s lifetime and an additional 70 years after death. During the copyright term, the public pays the rightsholder a fee to reuse the work. The idea is that these economic benefits will incentivise creators to make new creative works, over which they will enjoy a limited monopoly from which they may profit and exert control. Once copyright expires, the work enters the public domain and is available for anyone to reuse for any purpose. In this way, the public domain is a central part of the copyright bargain and its availability produces a wider benefit to society: public domain works can be reused to create new knowledge and cultural goods that enrich social welfare and invigorate the local economy. Considering these aspirations align with public missions, GLAMs around the world are in the process of updating digital remits and strategies to feature these goals for digitised public domain collections. Yet new questions can arise related to the presence or absence of copyright in digital surrogates of public domain works and collections data as a result. This study thus aimed to understand how the UK GLAM sector fared in the global open GLAM landscape and what new potentials are enabled by the digital national collection.

The report is organised in six sections:

Section 1 situates this study among others like it and outlines the research approach, methods taken and data relied on.

Section 2 focuses on law and policy movements in the UK, the US and EU, taking readers through key developments, practices and findings that need to be understood to appreciate the data.

Sections 3 and 4 outline these data: first, data on open GLAM activity in the UK compared to the rest of the world; second, data on 195 UK GLAMs, including those involved in TaNC projects; and third, data on how 63 UK GLAMs interpret and apply copyright law to digitised public domain materials.

Section 5 analyses findings across the research and contextualizes them with evidence from interviews with practitioners.

Section 6 concludes with recommendations.

A particular contribution this report seeks to make is to outline gaps that will remain unless a range of strategies and support are taken up to redirect who can access and reuse the UK’s outstanding cultural heritage collections. Because of copyright’s complicated nature, the report also provides the necessary context to appreciate the data, findings and recommendations. The UK GLAM sector currently sits at a crossroads: it can either crystallize the status quo of gatekeeping through copyright, or it can embrace open access and truly enable new societal growth and knowledge generation through digital media availability.

In the UK open GLAM space there is a lack of leadership which TaNC is well positioned to provide. TaNC can influence future policy making in ways that break down the barriers existing between the UK’s outstanding cultural collections, including public access to and reuse of them. This report addresses both how and why a TaNC position on open access to cultural collections is essential and necessary. It goes further by mapping the areas where real policy progress can be made. Consequently, this report considers a wider audience than TaNC and its projects, and it identifies barriers that reinforce a culture of copyright around the UK’s cultural heritage collections in the public domain, quite literally, at the public’s expense.

Recommendations overview

Take a position that no new rights arise in non-original reproduction media generated around public domain works The UK Intellectual Property Office has provided a clear legal foundation upon which TaNC’s position can be based. This will support the retroactive application of CC0 to non-original reproduction media generated around public domain works. GLAMs can voluntarily align where they have cleared and claimed rights in digital assets.

Adopt an open licensing requirement for future UK digital collections research infrastructure across TaNC, AHRC and UKRI A requirement will support the publication of all outputs (i.e., beyond scholarly articles and monographs) created with infrastructure funding via open licences (CC BY) and public domain tools (CC0). This will support the prospective application of open access licences and tools to outputs created with infrastructure funding and reduce barriers encountered by research projects seeking to partner with GLAMs.

Expand access to funding and programmes for community support This might be facilitated through a community partner programme that effectively expands access to funding to the UK’s small- and medium-sized GLAMs and supports open GLAM through knowledge exchange and new partnerships.

Coordinate with other key UK actors to align on open access Coordinate with other UK funding bodies and associations such as Arts Council England and the National Museum Directors’ Council to advance open access adoption and to develop a shared strategy for long term support on copyright and open access.

Coordinate with key UK actors to develop a sustainable open access programme with a central support point Support the rollout of open access through a centralised support point that provides capacity building tailored to projects and problem solves across the sector, and by publishing the templates and outputs produced, such as checklists, contracts and data collaboration agreements, as public resources.

Improve messaging around open access Advocate for open access via a campaign that communicates expectations on open access, shares best practices and experiences, connects GLAMs across the sector, focuses on access and reuse (rather than new audiences) and supports navigating the necessary and important exceptions to open access publication.

New research on open access and future proofing Dedicate resources to undertake research on open access to inform the international open GLAM movement. The UK is in a unique position in that it can design a programme that tracks data on rollout and produces cutting edge research on the benefits of open GLAM, as well as what a more nuanced and inclusive approach to open GLAM might resemble.

Key themes and insights

The state of the UK GLAM sector, copyright and commercialisation of digitised public domain collections:

With COVID-19 and increased governmental pressures to self-generate revenue, GLAM decision makers appear less likely to eliminate any income sources The pandemic has resulted in doors shut, staff furloughed and made redundant, and knowledge and expertise lost, with priorities shifting to institutional survival. Many international exhibitions and partnerships have been cancelled or are no longer feasible. These and other conditions are impacting how GLAMs commercialise digital collections. Any decision to forego licensing revenue, however small, is made more difficult by pressures from legislators and Governments to generate income, no matter the business model. As a result, GLAM staff are working under significant and increasing pressures to achieve what they can with open access with the limited support and power available to them. Participants in this research unanimously framed these conditions as significant barriers to open access goals.

The research revealed a fundamental lack of knowledge around copyright and what the public domain is, includes and should include Complicated laws lead to complicated outcomes for GLAMs, and their publics. Legal advice is generally perceived to be expensive and inaccessible by GLAMs without in-house counsel. As a result, many GLAMs rely on each other for interpreting and applying laws that can be rife with grey areas. This is made more difficult when legal areas converge around collections, like copyright, contract, obligations for public bodies, privacy and data protection. These variables translate to a range of public-facing policies on the reuse of digital collections that are often overbroad, unenforceable or claim rights far beyond the protections available under UK law.

Risk aversion among GLAMs is unnecessarily holding back the heritage sector The research revealed deeply embedded practices of risk aversion, even around public domain materials that should pose little to no risk for digitisation and public reuse. As one participant framed it, “the natural position is one of saying no before yes”. For a wide range of materials, gaps in information, expertise or the financial resources necessary to clear copyright and/or determine the materials that are in the public domain prevent GLAMs from making such conclusions. The result is that copyright is assumed to subsist in far more materials than it should. Risk aversion also materialises in public-facing policies, which reveal more about individual GLAM needs and fears than how users can access and reuse digital collections.

Licensing images of public domain works does not appear to be a present or future revenue scheme with potential for growth, and is actually a financial burden on the GLAM sector Data strongly suggests commercial licensing services are unsustainable and have been for some time. At an individual level, (many) GLAMs bear the costs of maintaining their own commercial licensing system. In the aggregate, this amounts to significant costs expended across the sector. Providing the service incurs loss for the majority of UK GLAMs; few are profitable, and those that are, are primarily national museums. These limited income sources also appear to be shrinking. UK GLAMs operate within a global marketplace for image licensing where high-resolution images are increasingly released to the public domain by other GLAMs. As one participant commented, “You can’t compete with free.”

Commercialisation, control and attribution desires sit at the heart of traditional copyright approaches Conversations revealed that commercialisation and guardianship factors influence decisions to claim copyright and/or provide digital access, rather than a legal assessment of the ‘originality’ of reproduction media required to attract new rights. Staff expressed concerns that fiscal assessments are often made based on potential commercial viability, rather than any immediate or concrete plans to commercialise collections. Desires to retain control or ensure attribution to the GLAM or source creator also inform these decisions.

Copyright has already negatively impacted TaNC projects and the digital national collection The research revealed many examples of commercialisation goals and/or partnerships impacting what gets digitised, used for research projects and published online. In the aggregate, institutional decisions that shape what appears in the public-facing collection can render collections relatively invisible, both digitally and for research, and impact public perceptions around value and cultural relevance.

The state of open GLAM in the UK:

Open GLAM in the UK remains an emerging trend rather than a sector-wide commitment to the public There is no consensus in the UK GLAM sector on what to do, nor is there any consensus about open access means, or should mean. Instead, GLAMs generally respond to open access with individualised strategies that frame open access as a balance against control, income generation and commercialisation goals. This results in a sector that overwhelmingly takes a default approach to making new copyright claims in the reproduction media generated around public domain collections.

The overwhelming majority of UK GLAM policies do not comply with the UK Intellectual Property Office’s 2015 Copyright Notice Across the UK, only six institutions were found to comply with the IPO’s Copyright Notice by adopting policies to not claim new rights in digitised public domain collections published online: Birmingham Museums Trust, Llyfrgell Genedlaethol Cymru (National Library of Wales), Newcastle Libraries, Royal Pavilion & Museums, Brighton & Hove, Wellcome Collection and York Museums Trust. Only the Royal Pavilion & Museums Trust, Brighton & Hove expressly references the UK IPO’s interpretation of copyright law. All appear to hold back high-resolution assets for commercialisation.

High level data on the UK GLAM sector paints a relatively healthy picture of open GLAM when compared to data on global open GLAM activity Globally, at least 1,208 institutions and organisations release some or all eligible data using open licences and public domain tools as of 7 October 2021. Of these, the UK comprises 80 or 6.6% of open GLAM instances, and ties for third place with Sweden (80 or 6.6%) behind the United States (292 instances or 24.2%) and Germany (157 instances or 13.0%). UK GLAMs have released at least 10,487,115 open and public domain assets (14.8% of the global total volume) to a variety of platforms online.

A closer look reveals the UK GLAM sector takes a traditional copyright approach to publishing digitised public domain collections

This materialises in a few ways:

In the global Open GLAM Survey data of 1,208 organisations:

A majority (73 or 91.3%) of the 80 UK GLAMs release only some rather than all eligible data under open licences or public domain tools. In other words, the data shows 91.3% of UK instances approach open access as an exception to institutional policies that claim rights and restrict access to eligible data. Some of this activity can be directly attributed to funding obligations.

Of the 10,487,115 open and public domain assets contributed by UK GLAMs, seven GLAMs were identified as contributing 10,409,004 or 99.3% of all UK assets. These include the Natural History Museum (7,131,263), the British Library (1,186,746), the Portable Antiquities Scheme (1,038,191), Royal Botanic Gardens, Kew (595,140), Wellcome Collection (387,228), York Museums Trust (40,426), and the Royal Pavilion & Museums Trust, Brighton & Hove (28,010). A majority of UK instances (50 or 62.5%) publish fewer than 100 open and public domain assets, accounting for a total of 1,029 assets or 0.009% of the total volume contributed by UK GLAMs.

In the UK GLAM Sample data of 195 organisations:

When viewed by their “majority approach” to publishing digital collections, 144 or 73.8% of organisations in the UK GLAM Sample operate policies of closed licences or all rights reserved for digitised public domain collections. In reality, this number is much higher. Accounting for all UK GLAMs would reduce the representative percentage of open GLAM engagement in the UK (i.e., both the instances and data volume) to vanishingly small numbers.

At least 35 GLAMs or 17.9% of the sample maintain technical protection measures to assets published on the website through pay-to-view software, watermarks, account creation, IIIF, disabling download and/or publishing very low-quality or thumbnail images.

The large majority of UK open GLAM instances are local and regional organisations engaging with data aggregators and external platforms The findings indicate data aggregators and external platforms have been crucial for both asset publication and the exposure they bring to collections. Those provided by Europeana, Flickr Commons, Wikimedia Commons and Art UK can also offer flexibility and advantages that impact how open GLAM proceeds due to the systems and rights statements that shape platform participation, particularly for small organisations. 73 or 91.3% of all UK open GLAM instances rely on such organisations as a primary method of publication, with Art UK alone accounting for 47 or 58.8% of instances. The UK’s largest holders of cultural collections are not open and primarily publish rights restricted collections via their own websites. Two exceptions make significant contributions in data volume: the Natural History Museum and British Library.

The UK GLAM sector is already behind on open access to heritage collections, and it appears to be falling further behind According to participants and data, UK GLAMs are almost a decade behind relatable peers in other countries, specifically in the United States and European Union (and Member States). More consistent legal authority in these jurisdictions correlates to greater open GLAM participation overall, and particularly approaches that publish content to the public domain, at higher qualities and in greater volumes. As a result, and in addition, UK GLAMs and research-led perspectives are notably absent from shaping many of the new questions emerging around unfettered access to digital heritage collections.

Open access is at risk of decline or stagnation in the UK Interviews and web-based research revealed clear evidence of decline or stagnation. Many participants noted that open access conversations are now harder with COVID-19. Some participants have had to re-defend the open access policy due to revived commercialisation desires. The research revealed many examples of digital assets that are being reassessed and even removed from websites and open access platforms to bolster exclusivity and commercialisation goals.

The risks posed by inaction and maintaining the status quo, and the potential for open GLAM in the UK:

The potential for resolution on the legal question of copyrightability A clear and binding legal principle protecting the public domain would propel the UK GLAM sector forward. However, this requires legislative reform or litigation, which are unlikely to happen. GLAMs (and other actors) may voluntarily align (or not) with the UK IPO’s statement that no copyright arises in digitised public domain works. To date, this has yet to occur. Participants raised the ethical issues involved while stressing the prevailing approach is made possible by a legal climate with variants of grey. These conditions result in a sector-wide practice that caters to copyright, commercialisation and control where the UK’s digital national collection is concerned.

UK GLAMs appear to have no intention of enforcing copyright claims to digital surrogates of public domain works There was unanimous consensus among interview participants that no GLAMs previously had or planned to enforce these disputed rights beyond a cease-and-desist notice.

UK GLAMs are making things unnecessarily hard on themselves and future staff The research revealed a traditional copyright approach leads to legacy data issues and more complex rights management processes, which can be complicated by staff turnover and the loss of institutional or project-specific knowledge. Such approaches can also impact staff efficiency and knowledge production within and across GLAMs, including what projects staff can pursue and what research can be undertaken due to desires to reserve certain collections from engagement (and open access obligations) for their potential commercial viability.

UK GLAM staff regularly turn to open and public domain collections and data made available by relatable peers Many participants revealed turning to well-known CC0 collections in other countries to illustrate blog posts on the GLAM’s own website and other media. One participant noted the institutional contradiction of using openly licensed collections while operating a licensing service for their own, asking: “Who is this serving?” UK GLAMs are also integrating openly licensed content to enrich collections data, improve information services and enable staff to focus on other tasks. Few also reciprocate by contributing openly licenced content and CC0 data to websites and external platforms.

The current situation is one of risking the public domain The data demonstrates a pressing need to curtail these practices for the benefit of GLAMs, their staff and users and the UK economy. Participants expressed genuine concerns around the future relevance of their collections: “If we don’t release this stuff, we’re going to get written out of history. Images that reappear are going to be the ones that are openly licensed or in the public domain.” When asked what might help, one responded: “Anything that moves the needle would be helpful. But we really need a jump at this point.”

Open access has had an overwhelmingly positive impact on GLAMs that have embraced it Open access has: removed barriers across systems and within operations, including the “copyright delay” embedded in collections management and public engagement; positively impacted their ability to attract research funding, including funding for digitisation (notably, for some with more developed open access programmes, the amount of funding attracted by the programme far outweighed the revenue generated by commercial licensing on an annual basis); positively impacted internal and external researchers’ abilities to pitch new projects and publish on topics that require images; resulted in greater overall public interest in collections, positive attention and good will; and increased the brand value and public profile. However, there is widespread incapacity to engage due to shortfalls in financing, labour, staffing and technologies. Participants stressed the incredible amount of work that goes into preparing collections for digital systems even prior to the incredible amount of work required for publication and for open access. As one commented, “Open access is hard too. For something that seems simple, it’s really not.”

Participants would welcome a stance by TaNC and UKRI Many pointed to open licensing requirements of Wellcome Collection and The National Lottery Heritage Fund as positive developments that have enabled or revived discussions around open access. The feeling was that public funding should render all outputs produced through the funding as available for public reuse. A position protecting the public domain was also seen as necessary. Many commented that the more funders who embrace such policies the better, as it is harder to advocate for embedded change if open access only occurs in the margins. This was something seen as requiring fundamental attention.

TaNC can be leaders on this point and take a position for the UK GLAM sector to follow Across the sector, there has been a lack of coordinated leadership, a disregard of the UK Intellectual Property Office’s Copyright Notice, tensions within GLAMs and among GLAM staff on open access demonstrating a huge gap that needs to be filled. More detailed recommendations on this are provided in Section 6.

1. Situating the study

1. Situating the study

“Rights need to be fronted. The idea of having joined up collections is great. But, in practice, the rights must be sorted out at the start.”

Staff at a large UK GLAM

1.1. Introducing the study

This report contributes a UK perspective of open GLAM while analysing it against the global open GLAM movement and recent legal developments that will dramatically alter the digital landscape of open access to cultural heritage collections in the public domain. It is directed at a range of audiences central to this landscape, including TaNC and the AHRC, UK government, lawmakers and policymakers, GLAM directors, staff and supporters, the general public and users, and even audiences outside the UK.

The research proceeded against a backdrop of similar studies spanning two decades of data on the benefits and drawbacks of copyright claims, commercial licensing and open access strategies adopted by cultural institutions and organisations:

A 2002 report by Simon Tanner and Marilyn Deegan explored reproduction charging models for digital cultural heritage in the UK and Europe among 51 institutions, including in-depth interviews and observations of a representative sample of 15. Tanner and Deegan found “the most powerful deciding factor for price was the perceived market value of the item (as defined by what similar organizations are charging) rather than the actual cost of creation and provision.” None of the institutions fully recovered the costs of the services through licensing alone.

Simon Tanner’s follow-on 2004 report explored reproduction charging models for digital cultural heritage in the US among 100 museums, including in-depth interviews and observations of a representative sample of 20. Tanner found most licensing departments operated at a loss. A few larger museums produced profits based on income generated around a relatively tiny group of popular works.

Studies in 2006 and 2009 by Nancy Allen, Hillary Ballon and Mariet Westermann focused on the field of art history and art history publishing. The research found the dependence on high quality images and the copyright costs associated with them negatively impact the field of art history and are serious impediments to the productive development of digital publications for art history.

A 2009 report by Prodromos Tsiavos mapped the flows of content, value and rights across the UK public sector. Tsiavos found rights clearance, the constant education of audiences and staff training on intellectual property are crucial to the success of digitisation initiatives and open access objectives, which correlate to the higher maintenance costs involved in

implementing and sustaining such programmes.

A 2010 report by Simon Tanner and Marilyn Deegan studied the opportunities, benefits and impacts of digitised resources for the UK, laying important groundwork for (re)evaluating how value can be transformed and measured through digital initiatives that provide access to the UK’s heritage collections.

Work by Kenneth Crews and Melanie Brown between 2010-2012 examined the broad website terms of use and licensing policies of 50 art museums in the United States. Crews and Brown uncovered a range of “copyright overreach” strategies limiting reuse in ways that inhibit new creativity, scholarly exploration and pose a threat to the public domain.

Kristin Kelly’s 2013 report surveyed 11 art museums in the United Kingdom and United States at various stages of opening up public domain collections. Kelly found that fears around loss of control and revenue loss either faded, or did not materialise, while the evidence of both internal and external benefits of open access steadily grew.

The 2015 Striking the Balance Report studied the ways in which a lack of clarity, standardisation and funding around open licensing shaped the business models and access policies of various United Kingdom cultural institutions. The report highlighted the significant investment gap between goals for digital remits and the resources available to realise them.

A 2016 paper by Effie Kapsalis revisited the museums featured in Kelly’s 2013 report and documented the impact of funding obligations and public expectations on increasing open access to collections and the demonstrated benefits for cultural institutions. Kapsalis’s work laid the groundwork for the Smithsonian’s own shift to open access in 2020.

A 2018 report by Martine Denoyelle, Katie Durand, Johanna Daniel and Eli DoukaridouRamantani detailed the complex systems regulating the circulation of art images in French collections and the impact of copyright on downstream reuse, finding commercial objectives were at the root of the problem.

In Australia, a 2021 report explored audiences’ expectations around, and engagement with, art through new technologies, including how COVID-19 has accelerated the shift to digital cultural engagement and the development of a growing ‘dual economy’.

These studies document almost two decades of research undertaken on how technology has changed the ways cultural institutions document and manage their collections, and the new barriers and opportunities that can arise through licensing and open access. All overlap with findings from this study.

1.2. Overview of the research scope

For reasons explained throughout this report, this research scope is limited to the open access policies and practices around collections in the public domain. It does not address the access parameters around in-copyright works and collections, as these are defined by national copyright laws and controlled by the works’ rightsholders, which is rarely the institution. This report studies access to materials for which the institution claims to be, and sometimes is, the rightsholder.

Around this, the research cast a wide net to understand the scope of digital collections and policies that UK GLAMs publish on their own websites and external platforms (e.g., Art UK, Europeana, Flickr Commons, Wikimedia Commons).

1.3. Defining GLAM, open and other terms

GLAM refers to Galleries, Libraries, Archives and Museums and is used as shorthand to refer to any national, regional or local cultural heritage institution or similar organisation.

User refers to many individuals or groups including members of the general public, educators, researchers, GLAM staff, and even GLAMs themselves, located in the UK or elsewhere.

Work refers to an item, information or output. Sometimes a work requires creative input and attracts copyright protection; when it does not, the work is in the public domain from the moment of creation.