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>> 2000 Town
Meetings >> San Francisco
REPORT: The Public Domain: Implied,
Inferred and In Fact
Wednesday, April 5, 2000 Visual Resources Association
Conference San Francisco, CA
INTRODUCTION
The local organizers, Martha Winnacker, from the University of
California and Maryly Snow, Architecture Slide Librarian, University
of California, Berkeley, and representing the Visual Resources
Association, welcomed the audience of more than 200. This was the
second session in this series that focused on the Public Domain and
reference was made to the earlier meeting at the Chicago Historical
Society.
David Green also welcomed the participants and set the meeting in
the context of the whole Town Meeting series. Martha Winnacker,
acting as chair of the meeting, then introduced the first two
speakers.
OVERVIEW OF PUBLIC DOMAIN THEORY AND
PRACTICE
Howard Besser, "The Disappearing Public Domain:
What is it, What's happening to it, and Why should we care?"
(See PowerPoint
slides for this presentation)
Howard Besser reviewed what he saw as the demise of public space
in public life - from the Greek agora, the medieval commons and the
public spaces important for early 20th-century political organizers,
to the rise of privately controlled pseudo public spaces (the
shopping mall), the disappearing public bathroom and the
proliferation of streetcams or surveillance cameras today. The
recent history of broadcasting also demonstrates a similar demise of
public space – from the 1924 Telecommunications Act that set aside
the airwaves as a public code to the recent squabbling among
factions to defeat the FCC’s proposal to establish local community
radio using low-powered radio signals (see the March 31, 2000 New
York Times editorial, “Static Over Low-Powered Radio.”).
What is it?
Besser sees the erosion of the public domain of intellectual
property as one subset of the demise of public space. Simply
described as “those resources freely available for all members of
society to do with as they like - with no permissions or fees and no
tracking of what is read or used,” the public domain has had several
legal definitions and Besser outlined them:
- things in the public domain can be appropriated by anyone
without liability for infringement (Black's Law Dictionary, 1996);
- the law’s primary safeguard of the raw material that makes
authorship possible (Litman, 1989);
- a commons that includes those aspects of copyrighted works
which copyright does not protect (Litman, 1990);
- the ultimate source of all new works (because nothing is ever
wholly new in and of itself) (Karjala, 1989);
- the converse of property rights in information where the
government prohibits certain uses or communications of information
to all people but the owner; the public domain is the range of
uses privileged to all (Benkler, 1999)
Why does it matter?
He suggested the public domain was important for four reasons:
- Philosophical: that it is part of our common heritage
and that there should be free and unfettered access to classical
work; Progress: that new knowledge incorporates old so it's
important to have the access to the old;
- Creativity: that derivative works depend on
pre-existing works;
- Free Expression: free access is necessary for active
social commentary and free expression. Artistically it is
important to be able to challenge cultural hegemony.
What is threatening it?
- Term extension (Besser showed a list of works that should have
entered the public domain but didn’t and another of works that
should have but won’t because of H.R. 2589, the Sonny Bono
Copyright Term Extension Act);
- Returning out-of-copyright works to copyright (for example,
the restoration by the Uruguay Round Agreements Act (URAA) of
copyright protection of foreign works that had fallen out of
copyright for various reasons);
- Licensing and other forms of contract law that are now being
extended to cover works normally in the public domain, giving them
a pseudo-copyright protection. The biggest offender here is H.R.
354- the Collections of Information Antipiracy Act (introduced by
Rep. Coble in January 1999). For an analysis of this bill see http://www.databasedata.org/.
These were all wholly economic moves and contract laws were
beginning to preempt longstanding common-law or constitutional
rights. Examples include:
- Attempts to end the “first sale” exemption and to control all
use; (see section
104 of the DMCA and attempts to keep 'first sale" alive)
- The extension of the newly proposed and rapidly adopted Uniform Computer Information
Transactions Act (UCITA) giving priority to “shrink-wrap” (or
click-wrap) licensing over copyright, eliminating negotiating
power and ending fair use;
- Licensing replacing ownership (with invasions of personal
privacy by owners to ensure licensing compliance).
What are the implications?
The closure of the public domain has a chilling effect on the
production of derivative works: who can afford to perform and
produce works for which permission has to be obtained? Postmodern
culture in particular revels in the manipulation of earlier
achievements. The diminishment of the public domain also diminishes
exploration and experimentation and can dampen public discourse,
satire and critique. One example proffered was Ariel Dorfman's "How
to Read Donald Duck," banned from importation in 1975 because it
violated Disney's copyright to the comic character. [How to Read
Donald Duck: Imperialist Ideology in the Disney Comic. http://www.sp.uconn.edu/~epk93002/ComicsScholarship/Entries/dorfman.html]
In sum, Besser sees the public domain as a critical public space
containing the raw material for future cultural expression. He
called for broad involvement in preventing some of the cited
legislative developments from moving ahead.
Resources and Recent Coverage at http://www.gseis.ucla.edu/~howard/Copyright/publicdomain.html
Kathleen Butler, "The Originality Requirement:
Preventing the Copy Photography End-Run Around the Public Domain"
(Complete
paper)
As Besser argued for the importance of stemming the demise of the
public domain, Kathleen Butler discussed the methods some museums
use to control the use of reproductions of public domain works in
their collections.
Butler pointed out an essential difference in the use of literary
and visual works in the public domain. In theory, once a work enters
the public domain the public may freely reproduce, adapt,
distribute, perform, and display it. But, because of the physical
uniqueness of much visual work, museums and galleries, as "guardians
and protectors of original visual work," can put constraints on
public domain intellectual property. Museums can limit access to an
image of a public domain work and have claimed copyright in their
own reproductions of that work. By controlling access to the
original artwork so that the public cannot make its own direct
copies, and also asserting a copyright in the only usable
photographic reproductions of a public-domain image, the museum
manages to control the public's ability to exercise its rights in a
public-domain work. Are they making an end-run around the public
domain?
Following the lead of museums, digitizers like Corbis have
applied for and been granted copyrights to their digital
reproductions. But the question is whether photographic and digital
reproductions are truly copyrightable? The issue revolves around
whether photographic works are original enough to secure copyright
protection that both the constitution and the copyright act limit to
"original works of authorship."
Artistic originality and substantial variation
Copyright protection of art reproductions is known as "thin
copyright" as it applies only to the elements of the reproduction
that are not copied from the underlying work. Cases cited have
depended on two characteristics: one is the degree of
distinguishable variation between the reproduction and the original
work (see Alfred Bell v. Catalda Fine Arts, in which courts awarded
copyright protection due to the substantial difference they found in
the handling of Bell's lithographic copies of various public domain
works). Courts therefore would need to see "substantial variation"
in the artistic rendering of another work.
In Bridgeman v. Corel, where the Bridgeman Art Library sued Corel
for allegedly infringing its copyrights in transparencies of
public-domain artworks, Bridgeman defended the originality of its
transparencies by arguing that its transformation of the paintings
to the photographic medium "established sufficient variation from
the underlying works to support originality." The courts disagreed,
pointing out that any translation to a new medium would necessarily
include trivial variations not worthy of copyright protection. The
Bridgeman case then, in Butler's words, "reaffirms generally that
translation to a new medium does not automatically establish
originality and states specifically that the changes in a
photographic reproduction that are inherent to the change of medium
do not constitute originality."
True artistic skill
A second test can also apply, although it has proved very
difficult to uphold. This is if a court finds that a copy of a work
is original because of the reproducer's "own skill, labor, and
judgment without directly copying or evasively imitating the work of
another." Subsequent case law has refined the definition to require
"true artistic skill" and not simply the use of "great effort and
time."
As the point of making photographic reproductions of work is to
make them as faithful as possible, museums and digitizers have
little chance of arguing substantial variation and are more likely
to argue that they deserve copyright protection because of their
skill, labor, and judgment. However plaintiffs would rarely get that
far. In Bridgeman the court wrote: "The point of the exercise was to
reproduce the underlying works with absolute fidelity." This made
them "slavish copies," undeserving of copyright.
Given the ease of the digital scanning process, digitizers will
probably emphasize the technical expertise and creativity involved
in making adjustments to pattern, brightness, contrast, and color
after the scan is made. This, though, is a routinized process, and
the technician's greatest contribution is time. But case law tells
us that great effort and time are not enough; true artistic skill is
required. A court would not likely find sufficient originality in
digital image capture to support originality.
In sum, Butler said, "Under either test, photographic and digital
reproductions are not original and therefore not copyrightable. When
these copyrights fall, the quasi-copyrights in the public domain
works they reproduce also fall, and the public domain is
safeguarded."
RIGHTS MANAGEMENT AND THE PUBLIC DOMAIN
In the second part of the session we heard from several pioneer
custodians of the public domain.
Robert Baron, "Making the Public Domain Public"
(Complete
paper)
Introduction: the Academic Image Cooperative
Robert Baron delivered remarks taken from the
second of a two-part paper, "Making the Public Domain Public,"
available on his website. The first part of the paper, "The Public
Domain Perceived," deals with the theory of the public domain, while
the second part, "The Public Domain Received," considers its
practical use. Baron, at this time project manager for the Academic
Image Cooperative, delivered the paper from the perspective of
organizing a public domain collection. The Academic Image
Cooperative (AIC), developed as a project of the Digital Library
Federation (DLF), is now under consideration by the Mellon
Foundation as a component of an ArtSTOR image delivery service. DLF
and Mellon are currently "develop[ing] circumscribed, strategically
identified image collections that respond to widespread teaching and
other specialist scholarly needs. It is envisaged that these
collections, including the one developed by the AIC, will be
incorporated into the evolving ArtSTOR service." [See DLF Website for further information.]
Baron focused on the issues and practical
difficulties of delivering public domain images, intent on
dispelling any notion that "using the public domain and using
donated rights amounts to a free ride to the land of universal image
access."
He stressed that public domain materials were
often very valuable in their own right and were in no way merely
surrogates for commercial resources. Dover Publications was a good
example of compiling and making available public domain material.
Dover reserves its rights to the compilation and to the protection
of its archive, but clearly announces that the "individual items in
the book are copyright-free, and may be used ... without further
payment, permission or acknowledgment. You purchase such rights when
you buy the book." In or
Out?
Determining whether an item lies within the
public domain can be quite problematic. What is the status of, for
example, photographs of public domain works published by the
Smithsonian Museums, documentary photographs of two-dimensional
public domain art works, a print from a photographic negative in the
public domain, a unique unpublished work, unpublished works created
before copyright existed? There is no single registry and detailed
legal analysis can be prohibitively expensive.
Baron pointed to Laura Gasaway's useful chart,
"When Works Pass Into the Public Domain," and as Baron paraphrased it: "works published between
1923 and 1963 when published with copyright notice would have had a
copyright period of 28 years, but, if renewed, the period would be
extended by 47 years, which now is extended again by 20 years
because of the Term Extension Act. If they were not so renewed they
would lose copyright and would be in the public domain. However, if
they were never published with notice, they'd be in the public
domain from the moment they first appeared and couldn't be renewed
or extended. The reality is even more complex, but this gives you an
idea of how it goes." Actually determining the date of a photograph
is often difficult: many works in photograph archives are undated,
their dates are difficult to find or confirm, or their ownership and
copyright registration status difficult to ascertain.
Baron cited the importance of community good
will. Many images among the thousands collected since 1852 by the
Alinari Brothers for their
commercial image collection, used extensively in higher education,
were now clearly in the public domain. However, any scholarly
database, such as the AIC might not wish to challenge such a
valuable resource as the Alinaris'.
So, any advice might be to be conservative, to
conduct risk analysis and to always keep documentation of one's
research. The policy issue, in creating a public domain database is
in determining the level of acceptable risk. "If we [take] a work
under copyright, even accidentally, will we ever be challenged for
having done so? Will we gain a reputation for sloppiness. Will
anyone ever notice?" As Baron put it, "attempts to use the public
domain can be riskier than contracting to use materials whose rights
are clearly identified." Access to
Public Domain Works
Access is a separate issue: "Everything is owned
by someone or some entity. Does one pay the library a fee to enable
access or to license use of the work? Or does the library provide
the resource gratis as part of its mission. Will library fees be
prohibitive?" Solutions are comparatively easy if a single work is
to be reproduced, especially if multiple sources are available.
"Access to public domain works that exist in unique copies can be
much more complex. Works may be in the public domain, but gaining
access may be a consequence of negotiation." Then the problem of
assembling multitudes of works from multiple sources, as in a
collection such as the AIC can be remarkable. Risk Analysis
Baron then turned to his experiences as project
manager of AIC. As AIC's future was being re-assessed and as Baron's
tenure was coming to an end, he made clear that his remarks were his
own and should not be taken as an official statement about AIC and
its future. The point was to focus on the practical problems of
gathering and administering such a collection. A good database,
Baron noted, has to be as well edited as a good scholarly paper; it
was essential to have full documentation of sources. This is
especially important when dealing with photo archives and early art
historical printing, as the older data, if it exists at all, may no
longer represent modern standards or opinions. Few can afford to
research each accessioned image so for an operation like AIC the
practical solution appeared to acknowledge that knowledge is
mutable, to record what is available and to expect someone to notice
that additional cataloging might be appropriate.
This approach is helped by the strong response
from the community. Answering AIC's initial call for images,
teachers, scholars and the public responded with 400,000 images,
many of professional quality. The expectation was also that the
community would volunteer its expertise: scholars could become
specialist editors (this work counting as professional
service).
Perhaps one of the most surprising issues in
constructing a public domain database arises from the need to
protect oneself from errors arising from using donated works,
problems not so common when working with license agreements
governing copyrighted works provided by institutions. How would a
database protect itself from suits arising from the misuse of works
that were incorrectly given: if the donors did not own the copyright
of images donated or had no right to distribute them? The database
could become its own 501(c)(3); it could insure itself against such
risks; it could develop its own risk analysis policy when accepting
donations. But here were some examples of how, as Baron put it, "The
roads through the public domain are not as well marked as they are
through the domain of copyright and private property
transactions." An Irresistible
Model?
Finally, Baron noted that the AIC was built upon
a revolutionary notion that art historian Gary Schwartz had
articulated at the Toronto Copyright Town Meeting in 1998, some time
before the AIC was formed: "By collecting faculty photography, by
taking images from the public domain and by acquiring other
free-to-use sources to be distributed to educators for free or for
the cost of maintaining the service, financial pressure will be
placed upon conventional for-profit image vendors who charge what
the art historical community feels are exorbitant fees for image use
and for publication rights."
Baron felt that the economic model behind the
Academic Image Cooperative was so persuasive, meeting so many
crucial needs of education in an atmosphere of dwindling fair use,
that ultimately, in one form or another, it could not fail.
Dave Green, "As if Public Domain Were Not
Enough: The Challenge of Managing and Exploiting a Public Domain
Collection"
Corbis has control over 65
million images, 2 million of which are available online in digital
form. Dave Green, from the Corbis Legal Department, reasserted that
when managing a collection of material that includes underlying
subject matter in the public domain, we were talking both about
legal constructs to enable access as well as the appropriate tools
to exercise control over the use of one's images.
In the late-80's Corbis was conceived in part because of the
proliferation of electronic publishing technologies that brought new
communication tools to a mass audiencel, and, inspired, according to
Green, by Bill Gates' vision of enabling private citizens and
corporations to easily and affordably view and use images from
around the globe. Green recalled his own experience with digital
publishing software at the time and found himself with powerful
digital tools but little "content". In 1989, the company began to
license content from a variety of sources, including museums. Early
on, Corbis had some difficulties negotiating with museums over the
licensing of museums' images because of the uncertainty over issues
such as rights and control. Now, the company clearly understands
museums' issues as fellow image holders The main concern of all
image aggregators, he said, was that their investment would be
de-valued, or even lost, so all want to protect themselves from
asset loss, and from potential asset loss.
Having a collection of public domain images clearly doesn't mean
that images can be free or free to use; there are a host of access
and legal issues connected with the use of images. In terms of
recouping costs, Green estimated that Corbis spent, on average, more
than $45 to process each of its digital images.
Green felt that industry had so far failed to offer a
product/service that meets the needs of education. This was
beginning to be a major market, especially with the rise of
for-profit education. Corbis is working on a ange of such products
and services for higher education
Green stated that he saw the following as the chief legal
concerns in using public domain material:
- the technology that comes with an image (it's just not the
image);
- trademark issues: the content might itself have trademark and
other rights;
- publicity rights that surpass the period of copyright;
- artistic and moral rights over the use of material copyright
of the compilation of elements in the digital file (Green clearly
believed that the selection and arrangement in the compilation, as
well as the "artistry" involved in Corbis’ image enhancement
processes, met the originality requirements of copyright law.
Dakin Hart, "Pragmatic Idealism and
Intellectual Property at the Fine Arts Museums of San Francisco"
Dakin Hart told of how he, an English teacher
with an arts background, was hired in 1995 to critique the on-line
production of the Fine Arts Museums of San Francisco (FAMSF)1. At
the time, he was inspired by Esther Dyson's now-landmark essay in
the July 1995 issue of Wired Magazine on Intellectual Value. With its
call for new business/operating models and new ways for compensating
authors and artists, this piece, Hart felt, was not only a wake-up
call to the software industry but also to the museum world. What
were its implications for what a museum was and how it operated with
its public in the 21st century?
Hart summarized what he thought were the key
elements of Dyson's essay:
- that what can be copied will be copied
- that content visibility in the future will be
key (how easy is it to find?)
- that performers, such as the Grateful Dead,
made more money from performances and encouraged bootlegged
recordings
- that intellectual property is like real
estate in that you need to actively invest in (add value to)
it
- that added services rather than content alone
is key
- that content is an ad for other
services
- that people will pay for a good source
- that although content is replicable, a unique
understanding of it is worth something
- that one should manage one's business as if
the content is free
- that people will pay for what is perceived as
scarce.
Hart liked some of her predictions also;
chiefly:
- that there will be a few leaders with free
content;
- that companies will become more transparent;
- that more companies will increasingly become
partners rather than competitors
- that people will pay to be insiders
- that assets will depreciate while processes
appreciate
At FAMSF, Hart was asked to help re-write the
museum's mission statement, stressing the need to be more like a
library and less like a bank. There was a push not only to catalog
all prints and drawings but also to connect the data with images.
When the public saw the new database at work in the galleries, there
was a great demand to make it available online. The mantra of the
museums then became "access, access, access." Now named The
Thinker, the image database has over
75,000 zoomable images of the collection.
While there was immense support from the public,
the museum waited to see whether any artists were angry to find
there work online. Instead they heard from artists angry that their
work was not online yet. Hart felt that museums would get the
benefit of the doubt when trying to do the altruistic thing, in a
way that Corbis would not. Concessions were made by the Picasso,
Matisse and O'Keeffe Estates to enable works by those artists to be
displayed.
Hart then spoke of the value of belonging to the
Art Museum
Image Consortium (AMICO). There was
clearly value in creating a much larger library than any one museum
could have. There was also the value of a consortium that is able to
make broad licensing agreements, such as the recent one with the
Artists Rights Society. That agreement was a big step
in providing a mechanism for making contemporary art available
without having to negotaite with each rights holder. Any artist
represented by ARS can now be represented in AMICO. How an
individual museum's interests relate to those of the consortium as a
whole, Hart wouldn't venture to say, other than to say that in a
time of such rapid change one should be open to a variety of new
arrangements.
Note
1. The Fine Arts Museums of San Francisco
(FAMSF) is San Francisco's largest public arts institution.
Comprised of the M.H. de Young Memorial Museum and the California
Palace of the Legion of Honor, FAMSF is also the City's most
successful public/private partnership. Although a designated City
department, most of the Museum's operational funding and all funding
for art acquisitions and exhibitions are raised privately.
Panel Reponses
Panel members were invited to make brief
responses to other presentations, or simply some words in
summation.
Hart said that FAMSF had solicited and received
a legal opinion from its counsel, but generally had been driven by
the firm belief that they were pursuing a moral course, though, in
line with technological developments and with a belief that law
would follow good practice.
Besser and Butler both wanted to add their take
to the history of Corbis presented by Dave Green. Twelve years ago,
Besser recalled, museums were asked to join an "Interactive Home"
service giving exclusive distribution rights to an entire collection
and many felt this to be an early attempt to "corner the
market."
Besser said market forces were tending to make
materials more available and we didn't need stronger copyright
protection to make that happen. The clear precedent is the 1984
Sony v. Universal Studios
case in which Universal sued Sony for intruding on its copyrights
through the VCR. Although Universal lost the case, it's quite clear
that the current market has made winners out of all the film
studios. Besser asserted that the key to the future was in finding
new business models (along the lines Esther Dyson had laid out)
rather than stronger copyright laws that intruded on the commons.
Baron commented that market forces may indeed increase accessibility
to some materials but that there was a real fear of losing
accessibility to things with no commercial interest or
values.
Hart added that while Corbis had a
'cherrypicking' model, in which it collects only the most marketable
materials, museums surely needed to operate with a different
model.
Mr. Green came back to say that he had no big
disagreement with what had been said. Corbis has had to utilize
copyright laws because of the range of relationship with partners
and suppliers, who have demanded that their material be
protected.
The Corbis collection consisted mostly of
editorial news images; Corbis currently had a comparatively small
number of historic museum images. And at a cost of $45/image to
process they had to cherrypick. He agreed that it was vital for us
to have a public space but other business models were important to
support other kinds of activity: there should be room for
all.
QUESTIONS & DISCUSSION
Louis Marchesano, a Getty Research Library
curator, agreed with Dakin Hart's position but wanted to point out a
situation at the Getty that had a collection of some 7,000
photographs documenting tapestries: half of them from a single
French archive with images from the 1920s to the 1960s. In this case
copyright law surely prohibited the online display at a high
resolution of the other half by the Getty. Moral Considerations
One questioner asked whether his institution
could rightfully display Alinari images of objects in its collection
on its webpage. Butler said it was key to know whether the
underlying object was in the public domain. Also, Bridgeman was a
local decision and had not reached the District or Supreme Court, so
it was worth while protecting copyright. Besser recommended talking
such a case over with Alinari. Using Alinari's images because you
think you can, without making an effort to talk to them, falls into
such a moral realm; one should at least talk and try to work things
out.
A questioner asked to what extent institutions
like FAMSF, could influence the law. Could we show Alinari images in
low resolution? If we work through the moral questions, coul we
still pro-actively influence the law in education and
research? Bridgeman
Baron responded that if we assumed that the
Bridgeman decision will live, then the entire web would be flooded
with low-quality images which perhaps museums would want to replace
with their own high-quality images.
Green asserted that the Bridgeman case was
misleading. The facts of the case were bad and were mishandled and
the result he felt had only a narrow holding. The case did give
greater freedom to use public domain images in the US; but we still
had to remember global copyright law. Baron added that Bridgeman is
based on originality, which is only a test recognized in the US and
UK.
Dave Green said that there was a clear danger
when lawyers started talking about art and that the courts were
quite clear that they didn't want to encroach on what type of art
meets the threshold of originality. Courts and the public together
have to draw the line between the utilitarian and the artistic. But
the danger of Bridgeman is that the same type of artistry and
selection do take place regardless of the subject.
Allan Burn from the Berkeley Public Library
objected to this. Speaking as one involved in the transition from
analog to digital photography, he testified that the digitization
process rarely involved elements of craft.
Besser made the point that with Shakespeare
editions it's the footnotes and apparatus that are copyrighted not
the core text; so with an art work it is the apparatus, the added
features and functionality. Green emphasized that Corbis spent a
great deal on re-processing and preparing images for release: images
couldn't go out in the raw state in which they were often
received.
Elisa Lanzi needed clarification about whether
Bridgeman would apply to reproductions of sculpture. Butler said
that indeed there were more factors to consider in three-dimensional
work and that Bridgeman was specifically about flat
art-work.
Trudy Levy from the private sector asked what
the difference was between protecting digital images as a product
rather than a copyright? Green replied that in the case of Corbis
that doesn't own most of its underlying content but licenses itfrom
others, it maintains a copyright in the compilation contained in the
digital product . In areas where there is an example of clear theft,
Corbis would want as much protection as possible from charges of
stealing the image. One can use property and contract law but they
are weaker. The Corbis product is essentially a visual image and
Corbis licenses that image to the public. Short of contract and
property law, Corbis' primary device is copyright law.
In Defense of
Museums
Ira Bartfield, from the National Gallery of Art,
led a ringing defense of museums. He commented that the majority of
people around the world will see art images only online and in books
and museums of course had a crucial role to play - a role that was
rapidly changing. He objected to the characterization of museums as
engaged in a thoroughly cynical end-run around the public domain,
gouging the poor graduate student. The mission of the National
Gallery, for example, was to faithfully reproduce and disseminate
work as broadly as possible. Most museums, he said, think of
themselves as altruistic and stress their educational mission.
Bartfield joyfully accepted the National
Gallery's responsibility, and that of the museum community as a
whole, to get the images out to a broad audience in the best way
possible. However, it is difficult to photograph works of art; there
is real expense in using the best light and best film in
constructing images for dissemination; for a variety of reasons it
is important to keep the rights museums already have. Art history
and art museums are surely organically connected; works at the
National Gallery are being re-analyzed and curatorial perceptions
and opinions are changing. The Gallery (at http://www.nga.gov) accepts
its role as working in a dynamic world. It disseminates its holdings
to a much broader public than it did just a few years ago; there is
now a much broader range of images out in the world and his staff
sees this in researchers being much more active in a much broader
range of works. Who knows what the future will bring, but someone
has got to try to get this thing done as well and faithfully as
possible.
Kathleen Butler responded that of course we want
the best possible images and that the museum is the guardian of the
work; controlling the image was originally about safeguarding the
image. However, in an image-hungry society there is potential profit
in every image and that is where the questions begin and the reasons
for such discussion as we were having. The Bridgeman case was
important as it is the only case law we have because to date
infringements were minor. Increasing the value of the work online
will increase the concern over infringements.
To the question whether a commercial enterprise
would have the same mandate to preserve the absolute integrity of an
image the way that a scholarly enterprise would, Green answered that
they wouldn't have the same mandate but that they would be prevented
from materially altering images both on credibility grounds (with
say the Bettmann Archive) and on moral rights grounds. Rephrasing
the question, Baron offered two possible methodologies: one makes
the scan as accurate as possible; the other looks at the result and
makes it as "good" as it can. Green replied that Corbis staff would
make a change to make a more accurate display but they have a clear
charge not to "materially alter the fundamental image." It was noted
that SKIRA photographed at high illumination to reveal the
underlayers of some paintings. Case
Law
Christine Sundt made the comment that one of the
weaknesses was that we had little (or no) caselaw; and that,
especially in a field like education that changes a lot, it would
seem important to find a way to protect the rights (or practices)
we've had as academics and to get caselaw that can insure the
ground. The issue was how we could orchestrate caselaw: testcases
that we can call our own.
Besser agreed that caselaw was probably a better
ground on which to hold the public good than the legislative arena.
From his perspective, laws were made by lobbyists and the content
industry and it might be through caselaw that we have a fighting
chance to hold onto what we have.
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