The Executive Director for Digital Policy of the J. Paul Getty Trust has written an article on digitally-reproducible works of public domain art, and museums' mission, arguing why and how museums should properly make these works as unrestrictedly available as possible -- thought people here would find it a worthwhile read:

http://www.dlib.org/dlib/november05/hamma/11hamma.html

-Kat

The piece is CC-BY-SA-2.5, so I am including full text here: -----

Public Domain Art in an Age of Easier Mechanical Reproducibility

Kenneth Hamma Exec. Dir. for Digital Policy, J. Paul Getty Trust khamma@getty.edu

(This Opinion piece presents the opinions of the author. It does not necessarily reflect the views of D-Lib Magazine, its publisher, the Corporation for National Research Initiatives, or its sponsor.)

In principle a work of art has always been reproducible [1].

In all the arts there is a physical component which can no longer be considered or treated as it used to be, which cannot remain unaffected by our modern knowledge and power [2].

Walter Benjamin opened his 1936 essay, Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit, with the first observation quoted above. He then extended the notion of reproducibility to suggest how it might mutate in a world that has changed since the world in which historical works had been created. Benjamin turned to Paul Valéry with the second quotation above, which continues a bit further:

Just as water, gas, and electricity are brought into our houses from far off to satisfy our needs in response to a minimal effort, so we shall be supplied with visual or auditory images, which will appear and disappear at a simple movement of the hand, hardly more than a sign.

Neither Benjamin nor Valéry could imagine the uses to which a copyright act might be put [3].

Nearly every art museum today asserts intellectual property rights in reproduction images of public domain works in its collection. It is argued here that placing these visual reproductions in the public domain and clearly removing all questions about their availability for use and reuse would likely cause no harm to the finances or reputation of any collecting institution, and would demonstrably contribute to the public good. As those images have become increasingly regarded as assets and as the preferred delivery venue for images has become increasingly an electronic network, the question of whether to allow free access and reproduction has become vitally important and complex. The paradigm for sharing in this context is fundamentally different from anything we have known before. The manner in which these rights might be granted, that is, the associated language and processes, may require consultation with legal counsel. Doing it, however, is not complicated by legal constraints. The choice to do so is a business decision that can be evaluated by nonprofits by measuring success against their mission.

The music industry's struggle to come to terms with the Internet has over the last years dominated much of our thinking about copyright and about a communications medium that has fundamentally changed notions of distribution and use. At the heart of this industry's problems seem to have been out-of-date business models, wildly divergent values with a wish that new technology would not be used, and rebellious consumers and artists. Those same problems are already vexing non-profits with visual assets. Over time every business – including museums and libraries – will have to manage for these kinds of changes. And here the recording industry's turmoil may provide some helpful guidance. Among other things, it should instruct the non-profit world to keep in focus its business, described by a mission-based bottom line. We might well ask ourselves, what is our business/mission that is to be extended into an online environment: Is it publishing? Research? Education? Access? Commercial licensing of images? Discussion

Art museums and many other collecting institutions in this country hold a trove of public-domain works of art. These are works whose age precludes continued protection under copyright law. The works are the result of and evidence for human creativity over thousands of years, an activity museums celebrate by their very existence. For reasons that seem too frequently unexamined, many museums erect barriers that contribute to keeping quality images of public domain works out of the hands of the general public, of educators, and of the general milieu of creativity. In restricting access, art museums effectively take a stand against the creativity they otherwise celebrate. This conflict arises as a result of the widely accepted practice of asserting rights in the images that the museums make of the public domain works of art in their collections.

Indeed, it is not at all clear that the institutional claims of copyright to such works would survive a legal challenge. The judgment in a 1999 case, BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., brought in a U.S. District Court for the Southern District of New York, held that the marketing of photographic copies of two-dimensional public domain master artworks, without adding anything original, cannot constitute copyright infringement when the underlying work is in the public domain. By and large, museums have been holding their noses and hoping this ruling will neither be broadly noticed nor challenged [4]. The fact that the ruling applies only to two-dimensional works of art likely provides little relief to those museums with a traditional but persistent pecking order that goes something like: paintings, drawings, everything else.

When the distribution of reproductions of art works was accomplished with film-based slides, transparencies, and printed images, the harm caused by assertion of rights in images of public domain works to the mission of these publicly supported and tax-benefited institutions was less restrictive. Obtaining an image generally required moving a physical object, a film or a paper-based image from one place to another. Although images, once acquired, could be duplicated, to some extent the quality of the reproductions was always less than the quality of the originals. The restriction imposed by the assertion of rights in images was less visible and less burdensome to the extent that physical access was an a priori constraint accepted by all parties. Similarly, violations of use were difficult to find when that use involved a physical copy. The re-use of images and copies in university slide libraries, for example, was more likely to be overlooked by museums. Today, digital images can be copied from a web site, reproduced, and widely distributed quickly, with ease and little expense. While examples of museums chasing down digital image miscreants are rare to non-existent, the expectation that museums might do so has had a stultifying effect on the development of digital image libraries for teaching and research.

In the online world, the assertion of rights either prevents the provision of images entirely or results in providing images that are marked in some way or are of low quality. Low resolution makes them useless for most uses. Because the Internet allows and encourages flow of information unlimited by a gatekeeper, museums choose to restrict access, not wishing to undermine their financial potential for commercial licensing.

This resistance to free and unfettered access may well result from a seemingly well-grounded concern: many museums assume that an important part of their core business is the acquisition and management of rights in art works to maximum return on investment. That might be true in the case of the recording industry, but it should not be true for nonprofit institutions holding public domain art works; it is not even their secondary business. Indeed, restricting access seems all the more inappropriate when measured against a museum's mission – a responsibility to provide public access. Their charitable, financial, and tax-exempt status demands such. The assertion of rights in public domain works of art – images that at their best closely replicate the values of the original work – differs in almost every way from the rights managed by the recording industry. Because museums and other similar collecting institutions are part of the private nonprofit sector, the obligation to treat assets as held in public trust should replace the for-profit goal [5]. To do otherwise, undermines the very nature of what such institutions were created to do.

Some art museums may generate a significant portion of revenues through commercial licensing of images of works in their collections, and that revenue may be vital for their continued operations. However, we have little to no data on the extent to which such revenues really currently support museum operations. There are no publicly available figures derived from any survey of net revenue generated by individual museums as a percentage of operating costs [6]. Neither is there good information on what percentage of revenues is based on public domain works or what percentage comes from works still under copyright constraints. We know even less about the costs associated with the generation of such revenue, monitoring infringement, and enforcing grievances – something traditionally ignored in the income analysis of nonprofits [7]. Answering these questions would provide insight as to whether there is enough revenue to be worried about.

If the hope for significant commercial licensing revenue diminishes easy access to quality images for education and research, we might be tempted to ask, how much income justifies the diminution of the institution's mission driven goals? As seductive as the finance question is, the answer lies first in a policy choice for each museum. Nonetheless, it may also lie in a public policy choice with respect to the definition of the private nonprofit sector.

Are there other revenue possibilities that have been overlooked because of the focus on commercial licensing? For example, it is clear that the public visibility of and familiarity with works of art generates interest in those works. That interest contributes to the revenues realized from entrance fees as well as bookstore and cafeteria sales. This generation of revenue is visible in the persistent use of images of well-known works in many venues as advertisements to drive traffic to the museum's front door. Why else would the paraphernalia that travels under the banner of King Tut return – yet again? The widespread distribution of images ultimately increases attendance at the museum.

While the reasons for prohibiting the distribution of quality images online are frequently founded in an intention, however unrealistic, to benefit from their potential commercial exploitation, there exists as well the notion of controlling the proper educational and proper creative use of those images. This notion derives from something of a paternalistic stance by museums that has existed for more than a century, that they alone can properly interpret the works in their collections. By attempting to hold works of art within an institutional voice, the single interpretation has often effectively isolated those works from a more engaged public experience. This topic is much discussed today in many museums (also now with respect to audio tours), and while there has been a broad attempt to come to terms with the notion of single institutional voice, most museums continue to control all voices but their own by their restriction in the use of images of their works.

What else motivates the notion of a proper use of images of works of art? Museums argue that the value of the original work diminishes in some way with familiarity – the kind of familiarity that might be brought on by the lack of appropriate explanation and context setting, by subsequent creative use, and by any creative use that may not be considered flattering to the collecting institution. But the net effect of experience with commercial and creative reuses of an image can best be demonstrated by looking to the Mona Lisa. When viewing the Mona Lisa at the Louvre, do we laugh at Leonardo da Vinci's famous painting because others have made a long career of spinning off wall paper, cookie jars, cigar bands, and so on, that use the reproduced image of the Mona Lisa? Do we fail to react to the mysterious Mona Lisa smile in the painting because we've seen her smile so often and so ubiquitously in other contexts? Museums' collections of public domain art, along with images of public domain works in libraries and archives, represent a public trust, a public commons of cultural heritage. While we currently do not find it odd to be asked to pay for access to an online library of digital images of public domain works of art, we would find it untenable to have to pay for such access upon entering a library to consult public domain materials. And while each museum must establish its own values, most such institutions would readily agree that their values fundamentally include concern for the past and future of ideas and creativity as they relate to the objects they shepherd. An institutional analysis of income might suggest, museum by museum, that the take at the front gate far outweighs or could far outweigh all net licensing revenues.

Would it not, then, be reasonable to put high quality images of public domain art back into the public domain, unfettered and unrestricted for all? Would it not be in everyone's better interest to make it easy to share these resources, such as using the Internet to provide access to them for public education and benefit? While looked at through the lens of potential commercial licensing income, this may seem too trivial an issue to consume leadership time, but looked at through the lens of a healthy public commons for creativity, there may be no easier or better service for museum leaders to provide. Epilogue

This article has argued that making visual reproductions of public domain art works available for use and reuse without charge would likely benefit the collecting institutions and would contribute to the public good. Nevertheless, there are several possible secondary consequences of acting on this proposal. To a large extent, those consequences are unpredictable even though they may be anticipated.

Any individual museum that unilaterally withdraws its assertions of intellectual property rights in images of public domain works, which seems the most likely starting point for any change in policy, may earn a reputation of having effectively undermined the assumed future potential for all fine arts image providers. To most users of images, one Monet is pretty much like another for a DVD cover that is to be mainly blue and green. One Boucher may be much like the next for a Mother's Day greeting card. For these purposes, an unencumbered image is much more likely to be used – by almost everyone – than one available for use under license and with restrictions. A large institution may be accused of using its size and power to undercut others with some variation of "they could do this because they have revenues from tickets or their bookstore or endowment." While that argument would not be a particularly meaningful response to the policy issue at hand, it might be effective spin.

On the other hand, a potential upside may coincide well with a closely related issue, namely promoting the management of and respect for intellectual property rights in works that are not in the public domain. Permitting an enormous wealth of images of finely crafted works to circulate freely may act as something of a pressure release – assuming at least some pent-up public demand for available images. More importantly, if properly handled, this opportunity to increase the public domain could focus attention on intellectual property rights in a very positive way, creating an opportunity for any museum to explain the value of respecting rights for works still under copyright. The current time frame for copyright may seem a long time, but it is an appropriately ephemeral period of control compared to the unlimited time span implicit in most current museum practice.

Easy and unfettered access seems likely to make a museum's collection online a more attractive and consequently more used resource. That attractiveness might be leveraged into revenue by providing opportunities within a general public view of the collection online to acquire – for a fee – cards, posters, and other products. It is true that without the exclusivity guaranteed by intellectual property control, other market forces may come to bear. But aren't those forces already familiar and similar to those that affect the popularity of a museum's collections and exhibitions in a larger world of education and of leisure time activities?

Obviously these opportunities are available to museums only because of the Internet, where a mouse click is Valéry's conjecture that "we shall be supplied with visual or auditory images, which will appear and disappear at a simple movement of the hand..." Acknowledgement

This piece has been contributed in memory of the late Stephen Weil, former Deputy Director, Hirshhorn Museum and Sculpture Garden and scholar emeritus, Center for Education and Museum Studies, Smithsonian Institution, who passed away in August 2005. Notes and References

[1] Walter Benjamin, Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit.

[2] Paul Valéry, Pièces sur l'art, (Le conquête de l'ubiquité).

[3] "What we have right now is an exponentially expanding intellectual land grab, a land grab that is not only bad but dumb, about which the progressive community is largely silent, the center overly sanguine, and the right wing short-sighted." James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society (1966).

[4] BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm and http://www.panix.com/~squigle/rarin/corel2.html which reveals a very interesting response from one part of the museum community.

[5] While the revenue streams from image licensing hardly rise to the bar set by the merchandizing activities of the most ambitious of museum stores, which has been a point for questioning tax-exempt status, its impact on access and so on mission is arguably greater and might be more visible in discussions of nonprofit sector policy as, e.g., introductory chapter of Marion R. Fremont-Smith, Governing Nonprofit Organizations, 2004 (pp. 1-18).

[6] The most recent study on this was commissioned by the Mellon Foundation and delivered by Simon Tanner for King's Digital Consultancy Services, Reproduction charging models and rights policy for digital images in American art museums, 2004, which pointed to 56 of 100 museums with budgets over $10 million receiving less than $50,000 annually from digital rights transactions. This study did not address the policy issue of this paper – except to ask museums if unauthorized use of images of public domain works constituted 'fair use' (p. 31) – but limited its conclusions to managing rights services, pricing structures and revenue. Previous studies have tended to focus on the revenue potential of image licensing without regard to the status of the intellectual property in the underlying work. For example, The Marketing Works, Like Light Through a Prism: Analyzing Commercial Markets for Cultural Heritage Content, January 1999, and Glen Bloom, An Analysis of Economic Models for Administering Museum Intellectual Property, March 1997, "In addition to serving their traditional role of making their collections available to the public, particularly by licensing their images, museums may be able to capitalize on the value of their collections..."

[7] The Tanner report cited above notes, p. 35, "Everyone interviewed wants to recoup costs but almost none claimed to actually achieve or expected to achieve this." And "Even those services that claimed to recoup full costs generally did not account fully for salary costs or overhead expenses."

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