The issue of whether there is new copyright created when a two-dimensional
PD work is scanned or photographed is one that is definitely one of the
biggest bones of contention between the Wikimedia community and the GLAM
sector, not just in Australia but worldwide. Even with the "Bridgeman v
Corel" decision in the US (upon which Wikimedia bases its policies) the US
GLAM sector does not apply the "principle of originality" in a consistent
way. See this recent paper for a fantastic overview of the situation: "Control
of Museum Art Images: The Reach and Limits of Copyright and
by Crews and Brown, Jan. 2010.

There are three potential ways to obtaining a positive (from our
perspective) solution in Australia - none of them quick or easy.

1) As suggested - political lobbying to have the law changed/clarified. This
would be, as you can imagine, bloody hard. There was major copyright reform
only a few years
the federal government has no willingness to open up that issue again.
The (secret) ACTA
no-doubt make things even tougher on free-culture advocates. However,
there are two other issues that are higher up on the government's law reform
agenda that I believe could have even greater positive impact for
free-cultural works in Australia. One is the proposal for all government
Public Sector Information (PSI) to be re-licensed under CC-By just as the
Australian Bureau of Stats did recently. The other is a potential review of
the "Statutory licensing" scheme whereby the Australian education sector is
treated akin to a commercial reuser of content and has to pay royalties to
the Australian GLAM sector (and the ABC, SBS etc.). We are apparently the
only country in the world that charges our schools a royalty fee to display
our own public broadcaster's shows in classrooms - costing the education
sector tens of millions and reducing access to Australian culture in
Australian schools because of it.

As much as I want clarity on the digitisation of GLAM objects question, I
reckon that if either or both of these other political reform issues were
sorted out at the federal government level they would have far greater
impact and would benefit the free-culture cause more widely. Therefore it
would be my recommendation that we focus any political lobbying efforts
there. The Government 2.0 task-force <> are already on
this case and we have good friends within that group.

2) The second way of getting resolution on the digitisation copyright issue
is, as also mentioned, a UK-NPG style lawsuit. This is dangerous to say the
least. Not only is there the potential of losing, there's also the very poor
publicity that both the GLAM sector and our own community would suffer if
such a legal action were to be undertaken in Australia. Whilst I personally
doubt that the NPG case would ever get to court, the issue has been a
net-loss for both communities - there is no 'winner' in that situation.

There is a further complication with both of these two options (lobbying or
lawsuit). Even if we were to "win" and forcibly get legal clarity on this
issue in our favour, the likely outcome is that the GLAM sector would simply
take down their images from their websites and retreat behind more
restrictive *licenses* as a way of controlling their content. Using contract
law rather than Copyright law can actually be more restrictive and contracts
never expire like Copyright does. Even if the scans/photos are proved to be
PD there is no obligation for the GLAM publish them online.

3) The final way, and the one I would suggest we work on, is getting the
GLAM sector to make the change willingly. This is a long term project and
one that I am personally engaged in on an almost daily basis but it is one
that I believe we are beginning to win. Some GLAMs are beginning to change
their policies or talk about changing their policies but more importantly
there is an increasing awareness that this is even an issue at all. The
first step is to just keep reminding any and all GLAM reps that we know
(personally, professionally etc.) that this is an issue that we care about
and is not going to go away. There is leadership internationally in this
area (for example the "smithsonian
and the Australian sector is changing its theoretical approach. I was at a
conference this week where the catch-cry from the keynote speaker (a leader
in the Aust. Museum sector) was "museums as stewards, not owners, of
cultural heritage", followed later in the day by another speaker who said
"Wikipedia is out there waiting to use our collections".

So, as un-sexy as it might sound, I would argue that we should just keep
talking with any/all people we know in the industry to raise awareness of
the issue of copyright claims in PD images. It's a slow process, but it's
one we're winning.

Peace, love & metadata

On Thu, Feb 18, 2010 at 11:49 AM, Confusing Manifestation <> wrote:

> Since the Ideascale site is now closed, I'll post my latest big idea here:
> One of the biggest gripes that Wikimedians and other "open content"
> fans have had in recent years is the issue of claiming copyright over
> retouched and/or digitised versions of public domain content. Since we
> would probably not want to determine the copyright status of such
> items via an NPG-style lawsuit, should we be engaging with politicians
> to develop clearer copyright laws?
> Obviously this would require further conversation with the GLAM
> sector, who would generally be on the side of having such things be
> copyrightable, but at least if the copyright status of digitised
> replicas of PD works was legislatively determined then we would all
> know where we stood with the law rather than the iffy case of "We
> claim it's PD but if it came to court the judge could swing the other
> way" we have now.
> CM
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