The following guest post is from Stefano Costa at the University of Siena. Stefano is Founder of the IOSA initiative and Coordinator of the Open Knowledge Foundation‘s Working Group on Open Data in Archaeology.
On December, 10th the COMMUNIA WG3 gathered in Istanbul for the final workshop, with the aim of producing a set of recommendations about cultural heritage and the public domain.
I am not a lawyer, so I took a chance to learn about the marked differences between access rights and property rights. More than that, it became soon clear that Cultural Heritage rights (CHR) only exist in certain EU member states (e.g. Italy, Greece) while in others there are no such rights.
This poses a first set of basic problems: a Finn tourist taking a photograph of the Parthenon in Athens might actually be violating Greek CHR, especially if she’s going to publish the resulting image on the Web. Same would happen in Italy, not just inside museums but also for public buildings and panoramas. On the other hand, Portugal only listed 5 buildings that cannot be freely photographed. Apparently Finland poses no restrictions on photographing of CH, be it historical buildings or artistic creations.
CH laws were mostly conceived in a pre-digital age and even those that got recently revamped (like the Italian case) apparently ignore the ease of creating digital reproductions of CH items at no cost and with no risk of damaging the items themselves. Cultural Heritage institutions (CHI) claim quasy-property rights over the artifacts they are custodians of, thus posing serious restrictions not just to personal usage, but also to the development of public repositories like Wikimedia Commons. As the recent GLAMWIKI event at the British Museum showed, some institutions are engaging with open content creators in a positive way, claiming their role of primacy by sharing the knowledge they have, rather than closing their doors and keeping the best for themselves.
In the case of licensing, the widespread distinction between commercial and non-commercial use is really harmful and poses more problems than it solves. What is particularly frustrating is that this distinction doesn’t take into account the existance of the Commons and of the Public Domain, in other words content that can be both commercial and non-commercial at the same time. A photographer might want to publish her photographs of Archaic korai under a CC-BY-SA license, thus enabling any kind of reuse, from the incorporation into Wikimedia Commons to the publishing on a tourist guide or a textbook.
Here a further distinction is worth: most CH items are in the Public Domain themselves (because they were made several centuries ago), but the same doesn’t currently apply to their digital reproductions. If the r. is basically a mechanical operation, one might argue that no copyright should apply to the reproduction, too. Clearly, the distinction between a work that is creative and one that is not is going to be very dangerous in the case of photography and ultimately impossible (think about those monuments that are photographed thousands of times per day).
The fact that going into these subtle juridic details takes so much time and effort is, alone, a good example of the difficulties that this double layer of rights is posing.
The recommendations we collected are aimed in the direction of clearing the nature and extent of CHR, and of maximising the benefits for the Commons and the Public Domain. CHR should not be property rights but rather access rights, thus posing no limitations on subsequent copies of the first reproduction once this takes place. If there is going to be a fee for commercial use of reproductions, the process has to be easy and quick. The policy for museum visitors should be “open by default” and larger institutions (or networks) might ask digital publishers like bloggers and wikipedians to link back to the original item – even though this assumes that there’s a digital collection available on the Web. Licensing of such collections is beyond the scope of COMMUNIA, and CH is also explicitly excluded from the EU PSI directive. There was some work done by the LAPSI project at the last meeting in Barcelona about this, and the survey launched by the European Commission might help in changing this situation. Clearly, countries like Italy and Greece might see this as “selling out” one of their major assets for economic development. We believe the opposite, and tried to develop our discussion around the concept of cultural heritage as infrastructure, just like the road network or the public green, that needs to be maintained for the benefit of all citizens and the overall development of society.
CHI want to retain control over items and buildings that they often regard as “theirs”, but this need has to live together with the fact that millions of people want to share digital content about cultural heritage on the web. Ultimately, this fact should be regarded as a very positive thing, if the mission of institutions is to maximise the awareness of Cultural Heritage among the public and the impact it has on the social and economic life of EU citizens.