[Foundation-l] a heads-up on Wikimedia France's adventures with the Frenc...

[Liam Wyatt]

On Thu, Oct 1, 2009 at 6:14 AM, Nikola Smolenski <smolensk at eunet.rs> wrote:

> wiki-lists at phizz.demon.co.uk wrote:
> > wjhonson at aol.com wrote:
> >> The image is in the public domain.  That's the point.
> >> Public means all public, not limited to the whims of what the boundary
> of a certain
> >> country might be today.
> >
> > Suppose someone goes into the Louvre not with a camera but with a laser
> > scanner. they digitize the entire statue, convert the point cloud into
> > surfaces, and then from the surfaces into CNC program files. Finally
> > they slap a block of marble on a milling machine and mill out an exact
> > copy of the original. Whilst they don't get to obtain any copyright on
> > the copy YOU don't get to claim that the CNC files are yours of right.
>
> If the original statue is in public domain, then its digital 3D copy is
> in public domain too. Some person may have physical ownership of the
> copy and you can not legally compel the person to give a copy to you.
> But were you somehow to obtain this digital copy, even by illegal means,
> there is nothing the person could legally do to prevent you or anyone
> else to copy it further. Physical ownership of an actual work
> (electronic or physical) is completely independent to copyright
> ownership of the work.
>
> This is the difference between *copyright* and *access-right. *The latter
refers to *physical property*. Given that we in Wikimedia-land only deal
with digital copies we are very adept with copyright (and copyright
edge-cases). But since we do not own any physical objects and therefore have
no "stuff" we do not have any experience in managing access-rights.

This is almost the reverse (to a certain extent) of museums which have for
generations had to deal with "access issues" (like whether you can enter the
museum at a certain time and how much entrance fee to charge and whether you
can touch the objects) but have only recently started to deal with issues of
digital copyright - people with their own cameras in the museum and people
copying images off their website.

Yes, if you have PD material then that is free to be re-used, but equally,
no one can force you to give it to them to use. A museum can give you their
PD scan but they are not obliged to and they can charge you lots of money if
they wish. If you had scans of old family photographs on your computer, the
fact that the scans are PD does not mean that you have to give anyone copies
of those photos. But if you publish those photographs then they are fair
game.

There's also another layer - contract. If I pay a museum for a
high-resolution copy of their image of an object (whether PD or not) I will
be asked to sign a license indicating the form, duration and purpose of my
usage and stipulating that I am only allowed to use the image for that
purpose. This is a private contract and it effectively creates
copyright-like restrictions on PD works. [This was raised in the GLAM-WIKI
recommendations<http://meta.wikimedia.org/wiki/GLAM-WIKI_Recommendations#Requests_to_GLAM>:
"Remove "clickwrap" and contracts which place copyright-like restrictions on
public domain content."]. It is my understanding that if you break this
contract and do something you weren't supposed to do with the work then you
can be sued - not for breach of copyright but for breach of *contract*. This
won't bring the control of the work but has effectively the same costly
consequence for you.

Of course, it doesn't cover third-parties such as visitors to a website. So,
if I license the image for my site and then someone else comes along and
copies it to Wikimedia Commons this is perfectly legal because I didn't
break the contract (assuming I licensed the work to be put on my website
without technical protection measures).

If you want to read a fantastic discussion of the reasons (some) museums
give for their "no photgraphy" policy - and why that should change - then
read this blog post by Nina Simon:
http://museumtwo.blogspot.com/2009/08/museum-photo-policies-should-be-as-open.html

-Liam [[witty lama]]


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