The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Monday, 29 May 2017

‘Display At Your Own Risk’: A Tour into ‘Copyright Surrogacy’

'DAYOR' exhibition  - Glasgow 2017
(...and Kats wondering which they prefer, Mona or 'surrogate' Mona)
Over the last year, Display At Your Own Risk’ (DAYOR) has made a buzz in the cultural, museum and legal sectors, touring London, New Orleans, Leicester, Hamburg and Milan. DAYOR is an exhibition of digitized reproductions of well-known public domain works commenting on cultural institutions' management of copyright With the next dates of the tour coming up soon (in Birmingham at Vivid Projects 6-23 September as part of exhibition curated by Antonio Roberts called ‘No Copyright Infringement Intended’), it also offers us the opportunity to discuss the newly-coined concept of ‘copyright surrogacy.' The topic appears to be catching on in the ‘GLAM’ (Gallery, Library, Archive and Museum) sector. 

Another 'GLAM' Cat
(Photo by Ree Drummond /
 The Pioneer Woman)
Display At Your Own Risk: The Exhibition
‘Display at Your Own Risk’ is an exhibition featuring digital surrogates of public domain works produced by cultural institutions, which were printed to work’s original size (read more about the exhibition methodology here). The ‘experimental exhibition’ includes no less than one hundred hand-picked surrogates of public domain works created from 196 BC to the 20th century. Confused? Fear not, ‘Display At Your Own Risk’ comes with an illustrated note of the exhibition’s process and purpose on its website.

The aim of the exhibition, put on by designer-turned-intellectual-property-law-researcher Andrea Wallace and copyright expert Prof. Ronan Deazley, is to explore “the meaning of concepts such as access, transparency and user engagement in an age where digital collections are becoming increasingly relevant” and envisage the “tensions inherent in the ownership and use of cultural heritage, as well as the validity of the authorial claims that institutions assert over these digital surrogates – surrogates that are often viewed as new and independent assets.” (More on the exhibition can be found here and here.)
Surrogates or not: Kats cant touch!
(DAYOR exhibition - Glasgow 2017)


‘Display At Your Own Risk’: The Debate on ‘Copyright/IP surrogacy’
The crux of the debate exposed by ‘Display At Your Own Risk’ is one of ownership, access and re-use. Can or should cultural institutions, collection owners, galleries, etc. claim copyright ownership in the digital copies of out-of-protection works? How does the practice of claiming ownership in digital surrogates impact the way we, as users and potential creators of derivative works, engage with works of art in the public domain? This is especially relevant as one is now more likely to cross paths with the Mona Lisa online than in the Louvre.

The exhibition re-opens a discussion that lawyers working away from the turmoil (and joys) of the GLAM sector might have thought was settled in the UK following the 2015 notice issued by the UKIPO (herefor those who missed the episode, you can catch-up online here.) What DAYOR makes clear is that the issue is still far from seeing any resolution both in the UK and worldwide.
Studying policies (all day long), terms and conditions 
(bring it on) ....but metadata : no can do.
(DAYOR exhibition - Glasgow 2017)

DAYOR illustrates in laymen’s terms what remains common practice in the cultural sector, i.e., the claiming of copyright via institutional policies, in the terms & conditions of institutions’ websites or, sometimes, directly in the metadata of the surrogates themselves. According to Andrea, this practice, which begins with the (welcome) production of digital reproductions of works, is now resulting in the generation of ‘surrogate IP rights’ when the copyright protection originally vested in the work has expired but is yet re-claimed in the digital format through ‘soft law’ (all beautifully illustrated in this infographic).

Good news for the public domain activists amongst us: Andrea and Ronan’s creative ‘poke’ at some of the most eminent of our GLAM institutions has been picked up and is catching on. The MKG Hamburg museum, which had released its digital surrogates to the public domain has since then updated its policy in line with the DAYOR team’s recommendations. The museum’s policy and practices are being now put forward as a model example to follow by none other than the EU Commission itself (here, p. 7, 22). And the OpenGLAM debate is continuing to catch on with the Met’s recent release of 375,000 digital surrogates to the public domain. 

This is a welcome victory for public domain advocates after the recent blow delivered to their campaign by the EFTA Court’s Municipality of Oslo decision last April (see here and here). In this decision, the EFTA Court confirmed that  public domain works could be registered as trade marks, without falling foul of the 'public policy' or 'morality' exclusions provided by the Trade Mark Directive (Article 3(1)(f)). Some may fear that this interpretation will allow the creation of new "copyright mutants"[1], or indeed, encourage cultural institutions to secure unlimited "surrogate IP rights" by using trade mark rights to reclaim out-of-protection works from the public domain. 

This debate reveals that the relationship between the public domain and intellectual property rights remains difficult to disentangle - even in cases involving traditional forms of artistic expressions like visual artworks. It will be interesting to see how national governing bodies and leading cultural institutions choose to adapt their policies going forward. 

[1] Dastar v. Twentieth Century Fox, 539 U.S. 23 (2003) ; European Copyright Society, Trade mark protection of public domain works: A comment on the request for an advisory opinion of the EFTA Court (1 November 2016) 7.

3 comments:

Anonymous said...

I think this issue was disposed of by Kaplan J in Bridgeman Art Library, Ltd v. Corel Corp, 36 F. Supp. 2d 191 (S.D.N.Y. 1999). It is not surprising that the museums have not chosen to litigate the issue - they would lose.

Andy said...

anonymous @09.58.

While Bridgeman may be relatively settled law in the USA (however it is only the decision of a single Federal District), that has little bearing on the jurisprudence of the UK or EU. Against Bridgeman one needs to consider the 2001 UK case of Antiquesportfolio.com v Rodney Fitch & Co in which Neuberger J (as he then was) found that copyright existed in photographs of various antiques and works of art produced for a catalogue, even though, arguably, these photographs paid far less attention to the accurate reproduction of the artworks than was the case in Bridgeman. While this decision came some considerable time before Infopaq and the more recent approach to what constitutes originality, it does indicate that in the UK at least the matter is not yet settled law. The IPO Copyright Notice clearly represents a common-sense point of view but has no more legal weight than does the Opinion of Jonathan Rayner James QC provided to the Museums Copyright Group, which took a contrary view. For what it is worth, I support the IPO's stance, as I wrote on the 1709 Blog a couple of years ago.

John Nagle said...

Bridgeman is effectively settled law in the US. The Bridgeman decision was cited at the appellate level in Meshwerks v. Toyota, which extended it to 3D scans of 3D objects. Both decisions rely on Feist v. Rural Telephone, the U.S. Supreme Court decision that copyright requires originality.

As a practical matter, Wikipedia relies strongly on Bridgeman for their images of public-domain artworks. Nobody has successfully sued the Wikimedia Foundation over this. The UK's National Portrait Gallery threatened to sue the Wikimedia Foundation in 2009, but backed down.

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