Copyright & Open Access for GLAMs in the age of COVID19

About

The current global health emergency has forced libraries and museums to organise digital engagement strategies, from #MuseumsFromHome to making digital broadcasts. However, this doesn’t mean that copyright laws have been suspended from working: how do we deal with copyright in this public health emergency? What are the important things we need to be looking at when we make our digital engagement strategies? Where can we go to find openly available content from museums and libraries? How do we make sure that we can legally preserve some of the current records being created by these digital engagement strategies? This webinar explores some of these questions.

The webinar took place on 26th of March 2020.

Speakers

Ariadna Matas (Copyright Policy Advisor, Europeana Foundation)
Sarah Pearson (Legal Counsel, Creative Commons)
Andrea Wallace (Lecturer in Law, Exeter University)

Resources

Join the Europeana Copyright Community to find out more about copyright and the cultural heritage sector, network with peers and hear about relevant events, resources and opportunities.
The text below offers an edited version of the conversation at this webinar; it was originally posted in the OpenGlam Medium by Scann.

What can be shared from the collection of my institution at this moment?

Short answer: it depends! Rely on existing limitations and exceptions, fair use and open licensing.

Ariadna: In terms of managing risk, it’s difficult to say, there are a lot of questions around copyright. And there’s something here that the Open GLAM community has been saying for quite a long time now: that we need to look at copyright from the get-go. Whenever an artwork enters the institution, we need to look at the issue of copyright from that moment, so whenever a situation like this arises, going digital is much easier. There are many institutions that don’t integrate this in their way of working, some big institutions have been doing this for a long time, but other institutions that we might not be hearing from haven’t made clearing copyright part of their process inside the institutions. This is a small lesson but one that we need to think about in the future.

Sarah: It’s always helpful to divide things up into buckets or categories. Copyright issues are relatively simple when you are talking about stuff that the museum owns, or that is in the public domain. There’s another category of copyrighted works that you don’t have the copyright to, and so there you either need to have permission, whether is a CC license or some sort of express agreement with the copyright holder, or rely on an exception and limitation.

In this context, with this public health emergency, where physical access to the works is not an option, obviously, the arguments of limitations and exceptions are a lot stronger at this moment. This doesn’t make limitations and exceptions foolproof, by any means, but makes them stronger. And then the third bucket of stuff is the copyright of things that you are creating right now, and in some ways this resembles the first category, but there are special considerations to think about there. For example, when you are creating a virtual tour of the facilities, or capturing copyrighted works in what you are doing, you want to think about how much you are capturing. And if it’s purely incidental, that’s not going to be problematic, but if you are really focusing on a particular work, then you might want to think about copyright, and whether you are adding some commentary, for example. So there are still things to think about copyright in works that you are creating right now.

Can I do a digital exhibit of an author that is alive, an author in the public domain, and an author that died a while ago but is still not out of copyright? What kind of solution would be good for this?

Short answer: it depends! Consider partnering with other institutions, or even with the Google Cultural Institute.

Andrea: This is exactly the type of connections that are ideal for this situation, and that potentially might be one of those grey areas that you and your collaborators might feel comfortable pushing. I hate to be the awful copyright lawyer that says “it depends”, but it does. It depends on the jurisdiction, it depends on the exceptions that are in place within that jurisdiction, where the institutions are located, where the licensing agreements might be between the institution and the artists, if the work is in copyright. And you might decide to go with all public domain content to be safe, but then, of course, we start to think about how that’s skewing everyone’s perception on what art is valuable and what stories are important to tell. We keep going back seventy years prior to everything that is conclusively in the public domain so we feel comfortable using it, and we start to then miss out on a lot of great contemporary enrichment, especially and potentially to more relevant things that are going on at the moment.

What is the role of fair use and limitations and exceptions in this context? Can the GLAM sector push for something similar to the Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research or Internet Archive’s Emergency Library?

Ariadna: I was trying to compare this statement with the context in which I work, which is Europe and a digital library. This statement is great because a lot of librarians are coming together to support the people they work for, or work with, which are their peers in the university. So if I have to think: “Who would be the equivalent in a digital library like Europeana? Who is this sector we are working for, and that we are trying to support in this, always, but in particular now in this time?”. We have colleagues in our office that work with the education and research sector, and it’s always very interesting and complicated at the same time to communicate what people can do with our collections. We rely very strongly on CC licenses and tools, and on Rights Statements, but it’s always quite complicated to make sure that the user is really understanding what they can do.

We have exceptions and limitations in Europe that may allow a re-user to go beyond what the Rights Statements or the license indicates, and how do we communicate this to educators that may think from a license that they can’t use it for online teaching when they actually can? Now that everything is moving digitally, librarians that would often be there to support the person at the university and guide them on which materials to use or not, are not available, so people now have to rely on more standardized information on a website. How do we inform educators, researchers and others about the possibilities of relying on limitations and exceptions? In Europe we have some limitations and exceptions, they are not perfect, but we should not forget about them.

Sarah: This is a real opportunity to push the line a bit, especially around exceptions and limitations. A lot of times practitioners in the US are very hesitant to rely on fair use. This is a time where we can have a lot more comfort than any other time to rely on fair use and other exceptions and limitations. And that could have ripple effects when this is over. Then we’ll be able to see that the world didn’t end, that it didn’t kill copyright, in fact, maybe it even made the whole system work exactly as it should.

Andrea: I don’t think copyright is going to fly out of the window. In our jobs and positions we’re very aware of how important it is to protect the value and the rights of the rightsholders. I don’t think any of the things that people are thinking go beyond that. We’re probably approaching this from a pretty risk-adverse perspective, and also a sensitive perspective around the rightsholders, but we are also thinking about who feels comfortable to push some of those grey areas around what the limitations and exceptions allow us to do.

There will be some interesting growth around these exceptions because they will be tested, and I don’t think that it will be the type of thing that crumbles the copyright system. If anything, it can make it more fair and equitable, for both users and rightsholders. We have to be aware of the risk in doing some of those things and being comfortable with what that brings. So I will encourage people to embrace the risk around some of those grey areas because they are probably now not as risky as one could potentially think they could be.

And there’s also a big question here around who will have access. We’re seeing this at the university, where students are going back home with poor quality wifi and with less access to digital means, so we need to think too about how to build in different forms of engagement. We need to make the access and the digital discussion a bit more equitable. In reality, all of this is going to push people who have digital connections and digital access forward, and we’re going to potentially lose a lot of the engagements from people that can’t access what is going on digitally.

My museum is running a social media campaign to encourage people to engage with us by creating their own content. What should we do with the copyright of the content that people are sharing with us?

Short answer: consider a CC license. Watch the Terms of Use of the platforms you are using. Consider changing the Terms of Use of your website for user generated content.

Andrea: A lot of the content creation that institutions are engaging with at the moment will be really interesting types of engagement. There might be other things to consider aside from copyright — for example, a video shot from someone’s house might have privacy issues that we need to consider. But even the output, the video itself could attract copyright. And when we are thinking about copyright, the incentives for it, and the fact that an institution might not necessarily see those engagements as the type of assets that could be eventually commercialized, we can have discussions around how to manage that content.

If we’re doing this type of videos, we might want to ask for permission to put a CC license to make this stuff reusable in the future. Do we do a CC BY, or a CC BY SA, or a CC BY NC? What would be then the different types of uses that could be put into place as we continue to remain at home and look for new ways to connect with each other? For example, educational videos being produced now might be eligible for being used under a limitation and exception, but those limitations and exceptions are always going to be jurisdictional.

So we might want to think then about licensing things a little bit more openly — because we have actually no intention to commercialize it in a way that we would normally think about for intellectual property that would be generated during this time. And there might be content that absolutely brings commercial value back to the institution. There’s going to be a lot of really interesting data that is produced over the next period of isolation in terms of what new parameters around copyright and suitability then get applied to reuse in a digital environment.

Sarah: A relatively easy solution for that is allowing for people to apply a CC license when they are uploading content to a platform, and that’s a common solution for that problem.

Andrea: And then, some of the content might not be as risky as we think, because when we are thinking about social media the terms and conditions are really broad contracts that would apply to the content that is being submitted. What is also interesting to think about it’s potentially user generated content, as institutions start working directly with users or inviting digital participation, thinking about what that might look like going forward. And how to design equitable practices around asking for a license instead of asking a user to assign certain rights or waive them in any content that they generate, like a non-exclusive license to the institution.

There are a lot of dark areas in cultural institutions websites, where you look at how they manage user generated content, and the language is constructed in very hard legalese terms, you grant “forever, in perpetuity, rights over any digital media now and forever known, you waive moral rights, the rights to be associated with the work, etc”. Work with your lawyers during this stage to design more equitable practices around this, and make the user generated content and public engagement aspect of rights management future proofed pursuing appropriate practices.

Is this the time to implement an Open Access Policy?

Short answer: No. But you can start the conversation.

Sarah: We should not rush to put a CC license to works or collections right now. First, because licenses are irrevocable, so you shouldn’t rush that decision. There are also a lot of complicated rights issues involved most of the time inside collections. You just don’t want to slap a CC license on something without really thinking about it, particularly for these important collections.

Andrea: There is a lot of work that goes into preparing collections for open access, and it shouldn’t be underestimated. Doing open access well is a standard too high for anyone to think about now. You can’t just say: “you know what, let’s just take our collection and make it available online now!” We’ve got time, and we’ve got digital content. Probably incremental steps are as far as anyone should be aiming at the moment. Sharing information with others that are already doing it, starting the conversation, and networking and staying connected with people that are also going through these things are probably the most helpful things to do at this time.

Ariadna: It’s not the time to be opportunistic right now about open access. Those who have already embraced open access can still be present online and engage with their audiences, but it is important to remember that some institutions haven’t been able to do these digital transformations for several reasons, it can be for a lack of capacity, of resources, not necessarily for a lack of support for open policies. We can learn a lot from the Open GLAM movement and from those who are already doing open access, and understand that these policies already had a purpose, for a period like this one.

I already have an Open Access policy and a digital engagement strategy, what’s up for me?

Short answer: collaborate by collecting data and generating metrics that help build the case for others.

Sarah: Right now it would be very fruitful to experiment in different ways with the content that you have as open access content, and keep track of metrics, and do documentation. It doesn’t have to be anything formal, but it would be good to have some case studies under our belts for when the dust settles, so we can point at them and say: “look what happened when we shared these works freely, and we had this great engagement from this number of people”.

Andrea: There could also be interesting baby steps that can occur during this time. If previously everything in your collection was set up to be CC BY NC, and the rights assessment has been done already in your collection, then the institution can take the next step to go CC BY SA, or CC BY; so we could see some incremental changes, because some of the work has already been prepared. And then it would be interesting to see the change in metrics. For example, some institutions on Sketchfab have changed their 3D models licenses from a CC license to CC0 recently, so there could be a natural jump in reuse. Documenting and collecting metrics around that could be really important to making some of the arguments, either internally, or for other institutions if they have access to that data and case studies.

So what happens when the dust settles? What are your thoughts for the future?

Ariadna: For fair use and fair dealing countries, there is going to be a lot around assessing where the grey areas of the law are, and assessing whether you want to champion them and test them. For a lot of countries with more specific exceptions and limitations it’s a good opportunity to test how far they go, and whether they allow us to bring forward all the projects that it would be interesting to develop in the digital world. Some of these limitations and exceptions are a lot more strict in the way in which they are written. But I think that it still would be interesting to keep on documenting the problems, especially now that there are copyright reforms going on in Europe. This is a good test for our laws, and to see whether they are fit for the digital age and the way we’re driving towards the reforms. It’s also important to look at what the scientific publishing sector is doing, and to see how some sectors are coming together to find a solution that is flexible for everyone.

Sarah: Thinking in what this means for open access generally, down the road, to me it’s hard to imagine that this situation doesn’t have ripple effects. We are going to realize that, one, whatever we do online doesn’t ever replace being face to face, seeing something in person, and having a real human experience. We’re going to be feeling that very viscerally right now when we can’t have that. This speaks to the concerns that some institutions usually have, “what if digital destroys the market that I have for my physical space?” We’re going to have a lot of reassurance about that. We are also already seeing how these digital tools can be really meaningful ways to connect with one another, and create connections with creative works. This will have ripple effects and increase people’s willingness to share more broadly, whether is with CC licensing or not.

Andrea: Right now everyone is turning online, and trying to network, and trying to connect, and circulate the new things that people are doing. It will be an interesting space to watch so we start adjusting our expectations around copyright and if this forces some legal reform or new thinking around what these crossroads issues mean.

Disclaimer: The content of this post does not constitute legal advice nor does it refer to any particular or specific situation. If you have any doubts about your specific situation, you should consult with a lawyer.