The perennial attempts to widen the reach of copyright in the pursuit of yet more revenue is something that is to be expected from companies. After all, maximizing profits is basically what companies do. But as previous Walled Culture posts have lamented, there is also a widespread tendency among non-profit cultural institutions – museums, art galleries, libraries etc. – to use copyright to generate revenue from images of their holdings, to the detriment of public access. The problem here is that the majority of their collections are unequivocally in the public domain, and yet these cultural institutions are trying to claim that a digital reproduction of those public domain objects is not in the public domain.
A post in February noted that the recent THJ v Sheridan court ruling in the UK effectively prevented these kind of copyright claims being made over faithful reproductions of public domain materials. The post also quoted from an analysis by Douglas McCarthy about the likely impact of that ruling. McCarthy has followed that up with more detailed work looking at the current copyright policies and practices of 16 leading UK cultural institutions. His post reporting on the results bears the ominous title “Anarchy in the UK”. Making requests under the UK’s Freedom of Information Act (FOIA), he asked two questions:
Does your institution claim copyright in digital images of 2D out-of-copyright visual works (such as prints or photographs) in its collections? If so, on what basis in law are such claims made?
Has your institution sought or received any legal advice on copyright in its digital images of out of copyright artworks in the last ten years, and in response to the recent THJ v Sheridan case? If so, will you release that advice?
The responses were quite varied. The most laudable comes from the National Library of Scotland, which replied:
The Library does not claim copyright in digital images of 2D out-of-copyright works in our collections anymore. The Library recognises that there is no legal basis for claiming fresh copyright in digitisations. This means we do not try to enforce control over the re-use of out of copyright materials.
The National Galleries of Scotland (NGS) are pretty good:
NGS does not claim copyright on digital images of artworks that are out of copyright. All images on our website of works that are out of copyright have the caption Creative Commons CC by NC and no additional copyright line.
However, there is an inconsistency here. The NGS does not claim copyright on digital images of works that are out of copyright. That should mean that they are in the public domain. And yet it has adopted the CC-BY license: that’s not public domain, which does not require attribution in this way. The response of the Tate Gallery is confusing:
Tate’s position is that it does not claim copyright, as defined under the Copyright, Designs and Patents Act 1988, in its digital images which solely portray 2D out-of-copyright works in its collection.
But the license on its Web site says:
You may not copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use tate.org.uk content in any way except for your own personal, non-commercial use. In certain prescribed circumstances, you may adapt, alter or create a derivative work from any tate.org.uk content for your own personal, non-commercial use, with the prior written permission of Tate which will be indicated against the relevant tate.org.uk content.
Again, that is not how the public domain works. Moreover, McCarthy’s earlier analysis was about how the Tate Gallery was attempting to use licensing to restrict access to public domain images, so it’s not clear what its current position is.
Some, like the British Library and Wallace Collection, didn’t manage to reply, for whatever reason, which seems pretty feeble. Finally, it’s worth noting the sniffy response of the National Gallery in London:
This is not a question for FOIA; this is asking the Gallery to give an opinion on a position rather than seeking information the Gallery holds.
In its reply the National Gallery went on to say:
We can confirm, however, that following reasonable searches of the relevant business area, no recorded information is held… no recorded information exists which confirms the Gallery’s policy on whether it claims copyright in digital images of 2D out-of-copyright works beyond the information you referenced (information contained on the Gallery’s website).
As McCarthy rightly points out:
The National Gallery’s statement that ‘no recorded information exists’ to support these copyright assertions raises significant questions about how the Gallery manages and records its copyright policy, especially given the definitive language used in its publicly available terms.
The responses to McCarthy’s FOIA requests provide an important snapshot of the copyright chaos that reigns among UK cultural institutions. Only a few of them seem to have a clue, or any sense that they have a responsibility to make cultural artefacts that belong to the public readily available – and without restrictions – to the people who fund them every year through their taxes. It’s a further dismal sign of how a misguided obsession with copyright does not promote the appreciation of creativity, or help others build on it, but actively throws a variety of abstruse legal obstacles in the way.
Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.
