2. Breaking down the law
“The question is simple: in a digital age, should images in our public collections be restricted so that museums can earn money for them, or should that be shared as widely as possible as a means of expanding knowledge, stimulating our creative industries and engaging new and more diverse audiences?”
2.1. Introducing the laws
Copyright law impacts an immense number of materials in UK collections, limiting whether and how GLAMs can make materials available online. Most UK GLAMs are incredibly risk averse when managing in-copyright collections and view misinterpreting or ‘breaking’ the law as a risk in itself. Although in-copyright collections are outside the report’s scope, it is important to note these overcautious and deeply situated practices also shape interpretations of laws relevant to public domain collections and the obligations of public bodies. Whether copyright arises during the reproduction of public domain works is an unresolved question of law that impedes access to the public domain and public sector information. Yet, even if rights arise, no law requires GLAMs to claim or enforce them. Interviews revealed a policy to do so brings its own set of consequences related to, and informed by, aspects of funding, costs, enforcement, visibility, reputation and the public mission. As one interviewee put it, “The road between commercialisation and ‘free’ is really difficult to walk morally, politically and legally due to the grey areas around whether rights in reproduction media can be claimed.”
Accordingly, this portion of the research asked: What is the law in the UK? And what conditions have caused this grey area to emerge, expand, stagnate and even roll back progress on open access to UK heritage collections? For this, five areas of law require brief explanation.
Copyright. Copyright law is designed to automatically protect a work upon its creation. This means a creator is not required to register or seek formal approval to enjoy copyright protection. But not everything a creator makes receives protection. A work must be sufficiently ‘original’ to attract copyright, which means a minimum level of creative input must be expended during the work’s making. If so, the copyright generally lasts for the creator’s lifetime and another 70 years after their death.[1] Once copyright expires, the work belongs to the public domain and anyone can use it for any purpose, and forever; the work cannot be ‘re-protected’ by a new copyright. This means no copyright is infringed, for example, when a GLAM makes a digital surrogate of a public domain work. The real question is whether that digital surrogate is sufficiently original in its own right to attract protection. Copyright can also protect data and datasets where the data itself is creative (e.g., a staff member’s opinion) rather than descriptive (e.g., tombstone data about an object), or where the selection or arrangement of the data in a dataset involves creative input. If not, sui generis rights can protect the contents of a database where there is a substantial investment in obtaining, verifying or presenting the data (but no creative input).[2]
- ↑ This is true of most copyright terms. However, GLAMs deal with other works sometimes subject to different, or longer, terms. It can be difficult to know when the work falls in or out of copyright, and mistakes are easy to make.
- ↑ ‘Sui generis’ translates to “of its own kind”. These neighbouring rights are distinct from copyright and arise in materials, like databases, to protect the investment in compiling and making the database.
