Tuesday, May 04, 2010

Addenda et Corrigenda

The proceedings of the 2009 Lawrence J. Schoenberg Symposium on Manuscript Studies in the Digital Age, at which I was a panelist were recently published at http://repository.upenn.edu/ljsproceedings/. I contributed a short piece arguing for the open licensing of content related to the study of medieval manuscripts.

Peter Hirtle, Senior Policy Advisor at the Cornell University Library, wrote me a message commenting on the piece and raising a point that I had elided (reproduced with permission):

Dear Dr. Cayless:

I read with great interest your article on “Digitized Manuscripts and Open Licensing.” Your arguments in favor of a CC-BY license for medieval scholarship are unusual, important, and convincing.

I was troubled, however, to see your comments on reproductions of medieval manuscripts. For example, you note that if you use a CC-BY license, “an entrepreneur can print t-shirts using your digital photograph of a nice initial from a manuscript page.” Later you add:

"Should reproductions of cultural objects that have never been subject to copyright (and that would no longer be, even if they once had) themselves be subject to copyright? The fact is that they are, and some uses of the copyright on photographs may be laudable, for example a museum or library funding its ongoing maintenance costs by selling digital or physical images of objects in its collection, but the existence of such examples does not provide an answer to the question: as an individual copyright owner, do you wish to exert control how other people use a photograph of something hundreds or thousands or years old?"

There is a fundamental mistaken concept here. While some reproductions of cultural objects are subject to copyright, most aren’t. Ever since the Bridgeman decision, the law in the New York circuit at least (and we believe in most other US courts) is that a “slavish” reproduction does not have enough originality to warrant its own copyright protection. If it is an image of a three-dimensional object, there would be copyright, but if it is just a reproduction of a manuscript page, there would be no copyright. It may take great skill to reproduce well a medieval manuscript, but it does not take originality. To claim that it does encourages what has been labeled as “copyfraud.”

You can read more about Bridgeman on pps. 34-35 in my book on Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, available for sale from Amazon and as a free download from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495365.

Peter Hirtle

Peter is quite right that the copyright situation in the US, at least insofar as faithful digital reproductions of manuscript pages are concerned, is (with high probability) governed by the 1999 Bridgeman vs. Corel decision. So it is arguably best practice for a scholar who has photographed manuscripts to publish them and assert that they are in the public domain.

I skimmed over this in my article because, for one thing, much of the scholarly content of the symposium dealt with European institutions and their online publication (some behind a paywall—sometimes a crazily expensive one) of manuscripts, so US copyright law doesn't necessarily pertain. For another, I had in mind not just manuscripts but inscriptions, to which—to the extent that they are three-dimensional objects—Bridgeman doesn't pertain. Finally, while it is common practice to produce faithful digital reproductions of manuscript texts, it is also common to enhance those images for the sake of readability, at which point they are (may be?) no longer "slavish reproductions" and thus subject to copyright. The problem of course, as so often in copyright, is that there's no case law to back this up. If I crank up the contrast or run a Photoshop (or Gimp) filter on an image, have I altered it sufficiently to make it copyrightable? I don't know for certain, and I'm not sure anyone does. So on balance I'd still argue for doing the simple thing and putting a Creative Commons license (CC-BY is my recommendation) on everything. This is what the Archimedes Palimpsest project does, for example, who are arguably in just this situation with their publication of multispectral imaging of the palimpsest. And they are to be commended for doing so.

Anyway, I'd like to thank Peter, first for reading my article and second for prodding me into usefully complicating something I had oversimplified for the sake of argument.


Roger Pearse said...

Thank you for posting on this! It's good to see these issues discussed.

I saw the "what if someone puts an initial on a tee-shirt" argument!

Is there practical difference between it, tho, and "What if someone makes $2 when we're not looking?!?! Better lock the books up and let no-one but us look at them; and let's screw over anyone who turns up and wants a copy"? You and I would not adopt such a policy -- but some archives do, or so it feels as a user.

For instance, I have some pretty bitter feelings towards the Bodleian in respect of the latter. I wanted to work on the text of the unpublished medieval Arabic Christian historian al-Makin. But they wouldn't sell me a photograph of an ms. except at something like 10 times what it cost to make -- almost $2,00; and they wouldn't supply me with the colour images they intended to take, only with specially degraded monochrome versions. Most such texts have important words rubricated, so monochrome is bad news. But to deliberately and intentionally make monochrome available, while making colour for themselves? I was obliged to give up the project, solely because of these policies. The library did not make money; all that happened was that scholarship was made impossible. Yet the Bodleian is by no means the most obscurantist of institutions in other ways.

This experience could be replicated indefinitely, I fear. There is so much of what looks like naked greed, so much elitism, so much exclusion of those neither wealthy enough to pay huge and arbitrary sums, nor privileged to have free access paid for by the taxpayer. Is this morally right?

Most of these archives are state funded. Can we think of any pressing reason why ordinary people should fund institutions that won't make their treasures available to those same people? I think this question will become ever more urgent as we all get used to having more and more online.

I think the possibility of some unspecified monetary loss can blind people to the real and concrete loss that everyone suffers from having this material inaccessible.

Hugh Cayless said...


Both examples are about control. I don't have a problem with libraries attempting to recover costs for digitization, or even trying to make money off their collections. But behavior like you describe serves only to prevent or retard scholarship. Ultimately, I'm not sure what can be done about it, since it doesn't seem to me to be rational behavior.

Bridgeman, which was based (in the first decision) on UK law, means that close reproductions of 2D objects in the public domain are not copyrightable (in the US). That might make institutions so inclined even more likely to just hang on to any digital reproductions they make, and never share them, because they wouldn't be able to retain control.

I agree that this kind of stance is completely indefensible, especially for public institutions. I would hope that pressure will build to change, as more institutions (like Cornell, as Peter pointed out in a followup email—see http://www.arl.org/bm~doc/rli-266-cornell.pdf) decide the costs of control aren't worth the benefits.