21 for 2021: Digital heritage and the public domain

This post is part of a series of evidence summaries for the 21 for 2021 project, a CREATe project within the AHRC Creative Industries Policy and Evidence Centre (PEC). The 21 for 2021 project offers a synthesis of empirical evidence catalogued on the Copyright Evidence Portal, answering 21 topical copyright questions for the 21^st century. In this post, Andrea Wallace (Senior Lecturer in Law, University of Exeter) explores the empirical evidence relating to copyright, digital heritage, and the public domain.

When copyright expires, a creative work is deemed to be in the public domain. Anyone can reuse the work for any purpose without obtaining permission—at least in theory. In reality, a user must first be able to access a work to reuse it and the knowledge it contains. One way to enable this is to digitize the work and information associated with it and make everything available online for public access and unfettered reuse.

In the aggregate, the international cultural heritage sector stewards an immense volume of public domain works holding immeasurable potential for public reuse and new knowledge generation, particularly when digitized, networked and (re)connected using emerging technologies. Institutions also collect and manage in-copyright materials, and they create their own in-copyright and public domain materials during collections management. This contribution reflects on how cultural institutions have extended access to the digital heritage generated around collections, both in-copyright and in the public domain. This is because public domain collections cannot be discussed without also reflecting on the complexities of copyright law that have shaped institutional understandings and approaches to the management of both in-copyright and public domain collections.

A network of intersecting and confusing legal areas and rights may overlap or conflict during heritage collections management, their digitization and new content creation. With respect to in-copyright works, cultural institutions remain bound by a number of inflexible legal areas and/or third party rights when navigating which works can be digitized and published online and under what conditions. Moreover, the absence of copyright and the possibilities of open access can pose additional questions around what digital heritage is fit for online publication and unfettered reuse, given the data can be machine actionable and used for computational processing, machine learning or artificial intelligence. Digitization can thus implicate both legal and ethical concerns related to copyright, contract, privacy, data protection, Indigenous rights and sovereignty, restitution and other areas.

Copyright is only one piece of the puzzle, but it has so often overwhelmed the debate. Indeed, there has long been a misconception by many cultural institutions and commercial image libraries that it is appropriate to apply copyright to surrogates of public domain works, from glass plate negatives, to slides and transparencies, as well as to digitized and born-digital surrogates. A new copyright claim may be motivated by desires to protect the underlying heritage from misuse, to commercialize the new asset and control its downstream reuse, or, at the very least, to understand how the heritage is being reused to inform institutional operations. The prevailing argument has long been that cultural institutions both require and rely on licensing revenue as an important source of income to support wider activities in the public interest. Yet studies consistently show that licensing services bring in nominal income, operate at a loss to institutions, or, where they are profitable, revenue is generated via a small set of popular images and often from academic use (Tanner 2004; Ballon and Westermann 2006; Allen 2012; Crews and Brown 2010; Kelly 2013; Collections Trust 2015; Kapsalis 2016; Denoyelle, Durand, Daniel and Doukaridou-Ramantani 2018).

Until recently, this was considered a contested policy area left to cultural heritage institutions to resolve individually as operational matters. However, new laws are emerging that settle the legal question of whether a new copyright should arise. Article 14 of the 2019 Copyright in the Digital Single Market (CDSM) Directive aims to prohibit public domain “works of visual art” from being subjected to new copyright claims. The Directive also includes provisions to support the digitization of in-copyright works for preservation, the making available of out-of-commerce works, and other necessary reforms to support EU heritage institutions. In addition, the 2019 Open Data Directive expands public bodies’ obligations to publish content for public reuse. And in 2021, the European Commission Recommendation committed to providing a common European data space for cultural heritage, highlighting the importance of digital heritage assets and their reuse to invigorating the cultural economy and creative industries, and detailing the monumental and unprecedented impact of digital technologies in generating “more ways for the public to access, discover, explore and enjoy cultural assets” and “more possibilities for reusing cultural assets for innovative and creative services and products in various sectors.” To accelerate the digital transformation of the cultural sector, “Member States should provide for and/or regularly update a comprehensive and forward-looking digital strategy for cultural heritage”. Accordingly, the EU has set in motion a sea change of legal, policy, and technology support to liberate eligible digital heritage for public access and unfettered reuse.

The evidence shows that while the cultural landscape has changed significantly in the past decade, it simultaneously replicates and perpetuates many problems that heritage institutions have faced since the advent of reproduction technologies, now exacerbated by digitization.

A number of studies in the Wiki outline the complexities of collections management faced by cultural heritage institutions. While the potential of digital heritage is arguably global, these studies reveal challenges and opportunities encountered by heritage institutions largely remain shaped by national and regional frameworks and cross-border concerns.

Many examine the existing exceptions and limitations available to cultural institutions and what new possibilities they enable for digitization and collections management. The Crews (2015) scoping study on statutory exceptions for libraries and archives among 188 WIPO countries uncovered a dynamic global landscape of “revisions that reflect changing needs and new technologies” but also that 32 countries lacked any library exceptions in domestic law. Hudson (2020) conducted a longitudinal study to understand how staff interpret domestic copyright exceptions, finding the relationship of law and/or best practices can inform institutional approaches in different ways related to the relevant jurisdictional frameworks or regional industry practices.

A particular area of concern has been what should happen with orphan works. A European Commission (2011) impact assessment on cross-border online access to orphan works documented the important work leading up to the 2012 Orphan Works Directive to reduce the risk of copyright infringement by cultural institutions seeking to provide online access to their orphaned collections. Another US study detailed the chilling effects of infringement, litigation and damages on the online availability of orphan works, finding “clear evidence that the orphan works problem stifles libraries and archives’ efforts to effectively use their collections” and even to fulfill their missions (Hashimoto, Hinze, Samuelson and Urban 2013). These and other studies stress the importance of securing legal accessibility to these works for the preservation and dissemination of the knowledge they contain and to enable the creation of new knowledge around them (Brooks 2005).

There is also significant evidence of how copyright complexities result in risk averse approaches during heritage management, digitization and online publication. Risk aversion can extend to assessments during copyright clearance, how risk itself is perceived and informs an institution’s appetite for tolerating such risk (Stobo, Erickson, Bertonia and Guerrieri 2018; EIFL 2013). These concerns are felt more acutely among institutions without access to legal and technical expertise and can extend to the risk perceived in the application of standardized licensing statements and documentation in metadata (Benson and Stitzlein 2019; Masenya and Ngulube 2019). At the same time, there is growing evidence that risk perception overwhelmingly outweighs the actual reality of risk, with many positive results and limited, or absent, liability flowing from decisions to confront and embrace risk in collections management (Dickson 2010; Stobo, Deazley and Anderson 2013; Schofield and Urban 2015).

These observations are accompanied by a number of studies examining how heritage practitioners encounter and view copyright. Studies have extended to possibilities of copyright exceptions and collective licensing models (Hudson and Kenyon 2007), the accuracy of copyright assessments (Kelly 2019) and levels of copyright literacy among sectors (Morrison and Secker 2015, 2017). What is clear, both through evidence and in practice, is that immense resources are required for copyright clearance, supporting staff competence, digitization labour and the wider costs of providing access to digital collections (Cave, Deegan and Heinink 2000; Stobo, Patterson, Erickson and Deazley 2018). These and other studies advocate for actors with copyright competence or greater resources to provide leadership in the sector, as well as for their ability to make relevant and useful suggestions to lawmakers on meaningful reforms (Mathangani and Otike 2018).

What also becomes apparent from the literature is that copyright, itself, has long shaped which collections are selected for reproduction via analog or digital technologies, and why. The tendency to favour low-risk works or works in the public domain naturally informs and filters what comprises the public-facing digital collection, how and at what quality digital surrogates are published and under what reuse conditions (Mwanza and Gichure 2018). The desire to claim new copyrights and commercialise public domain reproductions can also inform digitization priorities (Wallace and Deazley 2016). Evidence reveals how these decisions affect users and reuse, extending to examples of users substituting public domain materials where licensing fees, copyright clearance or high resolution images could not be obtained (Meletti and van Gompel 2021; Aufderheide, Pappalardo, Suzor and Stevens 2018). For these and other reasons, more recent studies advocate for a user-focused public domain that unlocks the potential of digital collections and cultural content for unfettered public reuse (Erickson, Kretschmer and Mendis 2019).

Yet the public domain is also complicated by national or regional frameworks and cross-border concerns. Indeed, what is in the public domain, including what the public domain itself is, can vary from one jurisdiction to another (Dusollier 2010; Angelopoulos 2012). In effect, a public domain status is not a clear (or universal) line that provides legal certainty for any number of reasons, which can implicate copyright law(s) apply in one or more countries. That assessment may pertain to country-specific and pertinent information such as whether a work has been published (Gerhardt 2011 and 2014), the term of copyright protection or types of subject matter ultimately protected (Dusollier 2010; Angelopoulos 2012). Considering that penalties can follow any miscalculation, this increases risk aversion even with respect to the public domain, which can be further exacerbated by the risks perceived in extending access to a digital single market.

Recommendations across studies extend to legal reform, new policy and governance, improving practitioners’ legal literacy, publication on external platforms and other measures that lead to greater public access to digital heritage. Some studies focus on the latter practice-led methods as being more effective to reaching meaningful resolution across the sector (Hudson 2020; Morrison and Secker 2015, 2017). Indeed, resolution through the political system is slow moving and can result in compromises or new idiosyncrasies among legal frameworks (Angelopoulos 2012). What is becoming increasingly clear is the immense value of the public domain and that continued inaccess results in public welfare loss (Heald, Erickson and Kretschmer 2015; Erickson, Heald, Homberg, Kretschmer and Mendis 2015). Moreover, once cultural institutions publish digital heritage to the public domain, they enable other popular platforms to provide access to public domain media, which is important for wider access goals and measuring value in downstream reuse (Erickson, Rodriguez Perez and Rodriguez Perez 2018).

On an international level, there are clear gaps in governance and real action on the reforms necessary to support cultural heritage institutions, collections management and online access to digital heritage. This has been accompanied by an urgent need to renew and expand government funding to the cultural sector and to support new policy measures enabling institutions to fulfil missions in the digital era, particularly following COVID-19, and to invert the systems that replicate the inequalities of open access and the digital divide (Bodo, Antal and Puha 2020). Smaller and medium-sized institutions and geographic areas with limited access to resources and expertise should receive serious attention, given that cultural players with greater resources in concentrated areas of the world are shaping the direction of digital heritage management and what collections are available online. This risks replicating existing inequities when reflecting on where collections are published, by whom and with what accompanying information or narratives (McCarthy and Wallace 2018). Without renewed and expanded financial support, we will continue to see measures that replicate inequities in digital form. This is particularly relevant considering the use of technologies to impose new forms of gatekeeping in an effort to protect any (perceived) commercial viability of public domain collections and/or an individual work. One example is the recent surge in national heritage institutions minting and marketing NFTs of public domain works and forming other exclusive partnerships without also making public domain collections available for public reuse.

On balance, the evidence shows a growing need for research to support policy making and legal reforms that embed considerations of the public domain into rights management and new content creation, rather than focusing solely or primarily on copyright. The public domain is a crucial component of the copyright system. Heritage practitioners, cultural institutions and their public(s) must understand the public domain in order to understand copyright, what can be protected and what risks arise (or not) around reuse. Yet the absence of copyright raises new questions around the ethical publication and reuse of digital heritage, including the role of cultural institutions in shaping access and reuse via new technologies. Otherwise, copyright issues and longstanding inequities will continue to pervade digital heritage and the management of public domain collections at a cost to the public as well as to local, national and international economies and knowledge systems that could be stimulated by reuse among the creative sector, cultural industries and a more plural public.

In addition, new research that follows the implementation and impacts of the CDSM Directive could support reforms of national and international intellectual property regimes that are specific to cultural institutions and collections management needs. The Directive will undoubtedly have a wider impact on non-EU states, given the market concentration and power of the digital single market and increased availability of public domain digital heritage. This is particularly relevant for the UK, which has expressed no plans to implement similar laws. Such research could enable other countries and regions to benefit from the lessons learned, while ensuring their own cultural collections remain relevant to a range of digital audiences.

Lastly, copyright-driven practices have long shaped how public domain collections are viewed, digitized and disseminated online. Accordingly, there is an urgent need to investigate the impact of copyright on directing what collections are reproduced and become part of the public facing digital collection, including what impact that has on education, knowledge generation and societal values around which collections are perceived to hold value (and why). Copyright has long been embedded in the curatorial process of creating heritage reproductions and extending access to public domain collections in profound ways. Future research should look to understand how this has materialized in the digital collection so it might set out ways in which it can be inverted to promote greater cultural diversity around representation, access to and reuse of heritage collections.