The public domain and the boundary it shares with the private domain of copyright has been subject to scholarly debate for decades. In 2013-2015, CREATe conducted a major research project – Valuing the Public Domain – which identified two broad conceptualisations of the public domain implicit in the literature. A narrow one describes the public domain as a negative space consisting of works and information that cannot be protected by copyright or whose copyright protection has expired. A broader ‘behavioural’ conceptualisation also includes the uses of protected works that do not require permission, such as those permitted by copyright exceptions. However, while theoretically there are various sophisticated ways of defining and investigating the public domain, in practice the boundary between what does or does not require permission is often blurred. A series of events which took place on 20th and 21st November 2023 under the recently awarded AHRC Research Infrastructure grant have produced important contributions from both academics and practitioners to this long-standing debate. For those who could not attend, digital proceedings are now available:
- Richard Misek’s CREATe Working Paper 2024/1 – Getty Images: Copyright Hawk or Corporate Appropriator?; and
- A new resource page consisting of videos and transcripts of the event ‘Can I really use this? Copyright exceptions for filmmakers’
The series kicked off on 20th November at 2.30pm with a roundtable co-organised by CREATe and the National Library of Scotland on Copyright, Cultural Heritage and the Audiovisual Sectors. Martin Kretschmer, Amy Thomas and Bartolomeo Meletti had the opportunity to discuss ideas and future projects under the new AHRC Infrastructure Award with different stakeholders, including the Scottish Documentary Institute, the Digital Preservation Coalition, Europeana, and Education Evolved. The group – including colleagues from the Centre for Cultural Policy Research, the Glasgow University Media Group and IT Services – explored opportunities for collaboration under two main themes: i) the next steps for CREATe’s codes of best practices on creative reuse; and ii) the (many) challenges of video games preservation.
At 5.30pm, Richard Misek (Filmmaker and Professor of Screen Media at the University of Bergen), one of the roundtable’s participants, gave the third and last CREATe Public Lecture in the autumn 2023 series – Getty Images: Copyright Hawk or Corporate Appropriator.
We invited Richard after watching his film A History of The World According to Getty Images.
The film speaks to one of the main obstacles to the reuse of public domain materials, namely commercial archives like Getty Images claiming ownership over and restricting access to unprotected and out-of-copyright works. The documentary filmmakers who co-developed the ReCreating Europe code of best practices raised the same problem, to which they referred as the ‘paperwork industry’. They are often forced to ‘clear’ out-of-copyright materials, for example by buying a Getty Images licence instead of getting the same work from a free source. They need a licence because funders, broadcasters and distributors often require a piece of paper certifying that the out-of-copyright work can be used. An overview of the issues identified by documentary filmmakers and curators of immersive experiences in relation to copyright and the lawful reuse of audiovisual materials can be found in this report. Richard’s work not only identifies and investigates some of these issues, but also offers a practical and revolutionary solution. Revolutionary how? You will have to watch the film to find out.
Using the film as a foundation, the lecture explored how, although in popular discourse rights holders and users are traditionally pitched against each other, the tension between protecting one’s own and reusing other people’s intellectual property is often embodied in the same entity. Specifically, the talk investigated how this tension plays out in the activities of one company: Getty Images. Among other things, Richard explained the processes that allowed Getty to reach market dominance (takeovers; litigation; platformisation), their practices of appropriation, their attitude towards risk, and the pending court case between Getty Images and Stability AI. An edited transcript of the lecture is available as CREATe Working Paper 2024/01.
Click on image to download.
The following day, the discussion moved to Christchurch, where we held the event ‘Can I really use this? Copyright exceptions for filmmakers’, in collaboration with CIPPM (Bournemouth University). The focus switched from the narrow to the broader behavioural definition of the public domain, namely to copyright exceptions. Co-chaired by Bartolomeo Meletti and Claudy Op den Kamp, the event brought together a panel of leading scholars and practitioners in the fields of filmmaking and copyright law to discuss how copyright exceptions apply to film education and filmmaking. The event kicked off with the screening of two short films by Bournemouth BA (Hons) Film students Beth Lyst and Will Holloway, who presented their work and described their understanding of the exceptions on which they relied to produce the films. The screening was followed by a panel composed of Tanya Aplin (Professor of Intellectual Property Law at King’s College London), Elizabeth Gibson (Senior Counsel, BBC Legal), Charlie Shackleton (Filmmaker), and Inge Sorensen (Senior Lecturer in Media Policy (Theatre, Film & Television Studies) at the University of Glasgow). The panel discussed the scope of application of exceptions that are relevant for film educators and filmmakers, and whether they may or may not apply to the students’ short films. The films, the students’ presentations and the responses by the panellists are available in this new resource page: https://www.create.ac.uk/can-i-really-use-this-copyright-exceptions-for-filmmakers/
After a short break, the same panel discussed the Codes of Best Practices on Copyright and Creative Reuse we co-created with the ReCreating Europe consortium (documentary filmmakers and curators of immersive experiences) and with Learning on Screen (film educators). The code for documentary filmmakers and that for film educators were briefly presented by their co-authors Stef van Gompel and Chris Morrison. The panel praised the enabling effect of the codes: starting from the principles and practices of reuse that the community considers fair, the codes provide short, clear and practical guidelines that describe the thought process one needs to follow to make informed decisions on copyright issues. Panellists highlighted the importance of endorsement of the codes by relevant sectors and communities, and how these codes can help copyright users make lawful use of existing content beyond the limitations of restrictive industry-led codes of practice such as the Sports News Access Code of Practice. The panel also raised important questions and challenges, such as how to measure the actual impact of these initiatives, whether the codes are about what the law is, what it should be, or both, and their potential significance in a court.
The event ended with the screening of The Afterlight, a masterpiece of creative reuse by Charlie Shackleton. It consists of fragments of hundreds of films from around the world with one thing in common: each of the actors appearing in the film is no longer alive. Introducing the film, Charlie noted how ‘these tiny little documents of action, however slight they might be, felt invested with this great weight of someone’s being having once been captured on film and therefore living on the present day every time it’s screened.’ At the same time, Charlie added, for every moment that is captured on film, there are millions that are not captured, or that were captured but then lost. To share in that feeling of fragility, The Afterlight exists as a single 35mm film print. It further erodes every time it screens, until it will eventually disappear.
The public domain has always been a central theme of CREATe’s work. The series of events held on 20-21 November 2023 is the latest of several major conferences, seminars and workshops on the public domain organised by CREATe over the years. These include Research Perspectives on the Public Domain (11 October 2013, University of Glasgow), Valuing the Public Domain – A Workshop for UK Creative Firms (5 December 2014, Digital Catapult, London), and Copyright and Creative Reuse (8 December 2017, British Film Institute, London). The public domain underpinned several of the seven interrelated research themes which structured the initial research programme of the CREATe consortium (2012-2018). During this period, in addition to the Valuing the Public Domain project mentioned above, CREATe has produced a series of open access, research-based resources providing guidance on the public domain, including the Copyright Bites and The Game is On! (for a history of these animated series, with links to other educational resources on the public domain, see this blog). Between 2018-2023, together with Creative Industries and Competition & Markets, the Public Domain was one of our three main research themes. Following the AHRC Infrastructure Award, the public domain still cuts across most of our new seven research themes, including Access to Knowledge, Legal History and Cultural Memory, Dealing with Creators, and The Law of Innovation.