The Great Digitization Or The Great Betrayal?

from the so-what-exactly-are-libraries-for? dept

One of the great tasks facing humanity today is digitizing the world’s books and liberating the huge stores of knowledge they contain. The technology is there ? scanners are now relatively fast and cheap ? but the legal framework is struggling to keep up. That can be seen in the continuing uncertainty hovering over Google’s massive book scanning project. It can also be observed in some recent digitization projects like Cambridge University’s Digital Library:

Over the course of six centuries Cambridge University Library’s collections have grown from a few dozen volumes into one of the world’s great libraries, with an extraordinary accumulation of books, maps, manuscripts and journals. These cover every conceivable aspect of human endeavour, spanning most of the world’s cultural traditions. While parts of the Library’s manuscript collections have already been published in print, microfilm and digital formats, we are now building a substantial online resource so that our collections can be much more accessible to students, researchers and the wider public.

That’s obviously a highly laudable aim. But the strict terms and conditions are not so praiseworthy:

Subject to statutory allowances, extracts of the Content and University Material from the site may be accessed, downloaded and printed for your personal and non-commercial use and you may draw the attention of others within your organisation to material posted on the site. Unless explicitly licensed or permitted by us, you may not:

use any part of the Content or University Material on the site for direct or indirect commercial purposes or advantage without obtaining a licence to do so from the University or its licensors

modify or alter the paper or digital copies of any Content or University Material printed off or downloaded in any way

sell, resell, license, transfer, transmit, display in any form, perform, hire, lease or loan any Content or University Material in whole or in part printed or downloaded from the site

systematically extract and/or re-utilise substantial parts of the Content or University Material from the site

create and/or publish your own database that features substantial parts of this site.

If you print, copy, download or use any part of the site in breach of these terms of use, your right to use the site will cease immediately and you must at the option of the University return or destroy any copies of the material you have made.

One of the jewels of the Cambridge University Digital Library is a collection of Newton’s scientific papers. So far, a selection of important mathematical works from the 1660s has been digitized. These date are from well before the first modern copyright act, the 1710 Statute of Anne. So it’s an interesting question — what is the copyright situation of these papers and their digitized images?

Assuming that copyright dates from the “fixing” of the work, or from the date of the Statute of Anne, they would clearly have passed into the public domain long ago. One technique that libraries have tried to employ in order to maintain their control is to claim that the act of digitizing creates a new copyright, although this seems dubious. After all, the whole point of digitization is to capture as faithfully as possible the physical appearance of a text: an artistic interpretation of that physical appearance would defeat the object of the exercise. But without that artistic element there seems to be no grounds for claiming copyright.

Moreover, even if there were copyright in the digitized image, it’s hard to see how there is any basis for stopping people from transcribing the text, since that is undoubtedly in the public domain. But that’s precisely what Cambridge University is trying to do in its conditions quoted above.

At least the Cambridge University Digital Library allows “personal and non-commercial use” for free; the British Library’s new British Newspaper Archive doesn’t even permit that:

The index of the newspaper archives featured on the website can be searched for free, from any location. If you are using the website in premises owned or operated by the British Library, you can view the images of the newspapers themselves for free also. If you are using the website anywhere else and want to view the images of the newspaper archive or use some features of the website you will need to buy either a Credit Package or a Subscription. You have to register with us and be signed in to buy credits or a subscription.

Here’s what the British Newspaper Archive encompasses:

The British Library’s newspaper collections are among the finest in the world, containing most of the runs of newspapers published in the UK since 1800.

The scale of the newspaper publishing industry from the early 19th century onwards is enormous, with many cities and towns publishing several newspapers simultaneously, often aimed at distinct audiences depending on social status, geographical location and political affiliation. The first stage of this project focuses on runs published before 1900 and will include titles from cities such as Birmingham, Derby, Manchester, Nottingham, Norwich, Leeds and York, along with local titles from London boroughs.

Clearly, most of that material will be in the public domain. But as a result of this digitization project, the British Library is actually removing physical access to some of its public domain holdings, replacing it with virtual access through images it claims are under copyright:

We have even scanned single pages more than two feet wide! These publications are now not available for public view or access through the Library’s reading rooms; however, they will be available to view on this website.

And to those who say that digitization costs money, and that those costs must be recouped in some way, consider this: holding books in a library, and making them available to the public, costs money too, but that did not prevent the great libraries of the past from providing access to their holdings for free. Those trail-blazing institutions knew that charging people to read would have been a negation of their central role in making knowledge freely available to all. And so it is today: a key part of the modern library ought to be making digital knowledge available to all, without charge, and without limitations.

This current trend to limit access to digitized versions of public domain materials is a real betrayal of the original mission of public libraries like the British Library. These made possible the opening up knowledge to huge numbers of ordinary people who otherwise would never been able to access these materials. Today’s massive digitization projects, which ought to be building on and extending that great tradition, are actually reversing it by seeking to take texts out of the public domain and charge for access to them. That’s not just a shame, it’s a scandal.

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Comments on “The Great Digitization Or The Great Betrayal?”

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Machin Shin says:

Re: Re: Re: Let me see if I have this right

I’m just still trying my best to figure out any kind of argument I could use to support a copyright lasting 50 years after the death of an artist. Holding to the idea that copyright is supposed to encourage new works, there is no argument I can come up with to support the current copyright system.

I can see saying a copyright last 10 years or so at most. After you have milked your work for 10 years it is time for you to get making something new. I can even accept stretching it to say maybe 20 years. That gives you plenty of time to make money of the work. But, Life plus 50 years? how does that motivate me to make new works? That makes me think something more along the lines of I need to make something great one time and then kick back and let the $$ roll in.

Copyright stays in place far too long. It has reached the point now that it is doing the exact opposite of what it was intended to do.

TtfnJohn (profile) says:

Re: Re: Re:2 Let me see if I have this right

But you see, if the copyright exists for the 50 years after you die then you can have some cute angel bring you the cheques and eventually get a better cloud and a better harp!

See, that’s why you want it! The added advantages of flirting with the cute angel entire beside the point of course 🙂

RonKaminsky says:

Re: Re: Re:2 Let me see if I have this right

I’m just still trying my best to figure out any kind of argument I could use to support a copyright lasting 50 years after the death of an artist. Holding to the idea that copyright is supposed to encourage new works, there is no argument I can come up with to support the current copyright system.

It is an incentive to society to murder any artist who actually enforces their copyrights?

To be serious, the (erroneous) economic argument is that it produces a greater incentive for living artists to create works, since the value of these works is increased by having a longer copyright term for them (even if only their heirs will see the extra value). This reasoning is wrong, since the economic reality is that only a very, very small minority of works have value in the long term.

PaulT (profile) says:

Re: Re: Re:2 Let me see if I have this right

“I’m just still trying my best to figure out any kind of argument I could use to support a copyright lasting 50 years after the death of an artist.”

There’s only on real reason – so that companies can profit from the work long after the artist’s death. There’s no artistic or creative reasoning, it’s all about the money, and getting at it with as little effort as possible.

If you care about actual artists, or the art itself, it’s impossible to honestly support such things, IMHO.

pixelpusher220 (profile) says:

Re: Let me see if I have this right

just as a devils advocate, how is that different than having a public domain painting and taking a photograph of it?

I would have copyright on the ‘photograph’ of the painting wouldn’t I? It’s obviously a different thing than claiming copyright on the data contained in the photograph, but it still exists as a separate and distinct thing.

Scanning a physical book into an image is basically taking a picture of it.

Not trolling, truly asking about the finer points of this type of scenario.

Richard (profile) says:

Re: Re: Re:2 Let me see if I have this right

“Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even if accurate reproductions require a great deal of skill, experience and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.”

Note that the Judge also gave his opinion that the result would be the same under UK law.

Marcus Carab (profile) says:

Re: Re: Let me see if I have this right

I would have copyright on the ‘photograph’ of the painting wouldn’t I? It’s obviously a different thing than claiming copyright on the data contained in the photograph, but it still exists as a separate and distinct thing.

Scanning a physical book into an image is basically taking a picture of it.

It’s a good question. The way it works when you create a derivative work is that you gain copyright only over the new copyrightable expression that you have made. The same requirements – creative expression – apply.

So if you take a photo of a PD painting in a scene – maybe you’ve put it in a cool place, gotten the lighting just right, caught it from an interesting angle with some creative framing – then you have copyright over those creative elements. But you do not gain any copyright over the painting itself. It’s actually the same with any photo: you don’t get copyright on the eiffel tower or a model’s tits, you just get it on the depiction that you created as the photographer.

So when you scan a book, or digitally capture a painting, in an archival sense, you aren’t actually adding any new creative elements. There is nothing for you to gain copyright over. Indeed, since the goal of such reproduction is to match the original as faithfully as possible, any new copyrightable element would be a failure of the archival process. Scanning a newspaper does not create a new copyrightable work, nor does it affect the copyright status of the original page.

Marcus Carab (profile) says:

Re: Re: Re:2 Let me see if I have this right

So in theory, the copyright owner of a painting could legally prevent the creation and/or distribution of an archival quality photo of that painting?

Yes. If a painting is under copyright, the copyright holder can exercise their rights over any copies – not just archival ones but also derivative works that don’t meet the threshhold for “transformative”. Personal archival copies might potentially qualify for a fair use defence, but other than that, the copyright holder has a great deal of control (too much in my opinion)

Marcus Carab (profile) says:

Re: Re:

I can see limiting access to extremely fragile items (like the over two-feet-wide page newspapers) or newsprint over a century old, but denying access entirely is something different altogether.

I suspect their “denied” access is indeed limited access – I’m sure a scholar with the right credentials could get in to see whatever he wanted.

But really they can do whatever they want with the original: if they want to lock it in a vault, that’s their choice, because the original is a distinct physical object that they own as property and are free to do with as they choose. It’s their attempts to extend that control to reproductions that is most troubling.

MAJikMARCer (profile) says:

And to those who say that digitization costs money, and that those costs must be recouped in some way, consider this: holding books in a library, and making them available to the public, costs money too, but that did not prevent the great libraries of the past from providing access to their holdings for free

While I agree with this, I suspect this is the reason, at least the public reason. There may be greed behind the scenes too perhaps.

What is troubling is the use of copyright to control these works. These digital items should be used for the further education of all, not just those who pay. Why should someone be restricted due to their method of access or location?

We lost untold amounts of knowledge and history when the Library of Alexandria was destroyed. Some of our largest libraries today are not so different. The distribution of those one of a kind, priceless historical artifacts safely distributed on the Internet is a way to safe guard their loss, which is inevitable.

Anonymous Coward says:

Re: Re:

I worked on a large-scale digitization/archiving project for a major library system.

They fretted endlessly about how the digital materials could be (a) backed up, to preserve them indefinitely (b) indexed and searched. I pointed out that the best and cheapest way to achieve both goals would be publish them all on the Internet, along with the relevant metadata, and let nature take its course. They didn’t get it.

Simultaneously, they were deeply concerned that someone, somewhere, might use the materials without permission or in a way that they hadn’t anticipated. I pointed out that this is a feature, not a bug, and that we should all be delighted if someone did exactly that. I also pointed out that these materials didn’t belong to us nor to our institution; we were merely their caretakers, entrusted with them on behalf of the city/state/country/world to whom they truly belonging. They didn’t get that either.

It turns out to be surprisingly hard to convince (some) people that the very best thing to do with the treasures of the world is to give them to the world. So many of them are so fixated on “ownership” that they just can’t let go. Hopefully, they’ll all die off soon and the generation now growing up will take a more mature approach — that is, they’ll realize that everything from academic papers to great art belongs to everyone, and that anyone attempting to claim them for themselves is a hoarder — to be despised, shunned, and overruled.

el_segfaulto (profile) says:

Re: Re: Re:

On a similar note, we had a professor in grad school who demanded his syllabi back at the end of each semester so nobody could “steal” his carefully chosen mountainous list of papers and books pertaining to the course. It was easily the most pathetic thing I’ve ever seen, made even more so by the fact that this man was a brilliant researcher. To this day he hoards the knowledge that he collects, doling it out bit by bit at various conferences.

Like you, I feel saddened by anybody willing to limit access to what should be public knowledge. It’s petty and childish at its best, and socially dangerous at its worst.

jupiterkansas (profile) says:

Couldn’t anyone walk into those libraries with a scanner and scan those books, then put the scans online for free?

Wouldn’t it be nice to have a foundation that hired people just to do that?

We need an army of people out there whose goal is to digitize the public domain. It’s a sad world when we have to stoop to stealing our culture back from public libraries.

Marcus Carab (profile) says:

Re: Re:

Couldn’t anyone walk into those libraries with a scanner and scan those books, then put the scans online for free?

The library would try to prevent it – which they are free to do, because they own the physical objects. And that’s important: it’s an owner’s right to hide physical property if they choose to.

However, libraries are obviously a bit more complicated: they are funded and tasked with sharing knowledge, so they definitely deserve a lot of the blame here. But it should be noted that a lot of the blame goes to copyright and the “ownership” myth of IP culture: the laws and the common wisdom have normalized and even incentivized the withholding of information. In a case like this it doesn’t even seem like the library is really thinking – they are just going Step 1: Don’t Share Books, Step 2: ????, Step 3: Profit

jupiterkansas (profile) says:

It’s not about what libraries will let you do, but what you can get away with. Libraries have never stopped me from photocopying a book. That would be one way to get it. I also once photographed each page of a book with a digital camera that the library wouldn’t let me check out. If it’s public domain, this is not illegal.

People should start doing this at libraries that don’t make their public domain material available to show how pointless it is to hide it.

Marcus Carab (profile) says:

Re: Re:

From a philosophical standpoint I completely agree that people should help themselves to copies of public domain information whenever they have the opportunity, because I believe it’s wrong to attempt to hide it.

All I’m saying is that people DO have the right to protect THEIR copies if they so choose. Really libraries don’t count because they are publicly funded so they shouldn’t even be considering it – but I’m just pointing out that property ownership rights still count. A private museum can prohibit photography – and that is totally within their rights, even if I think it is both stupid and unethical. Similarly if I own a rare book that nobody has digitized, and I choose to prevent anyone from digitizing it, that’s within my right – and nobody’s allowed to break into my house and scan it just because it’s public domain (any more or less than they are allowed to violate the rules of a facility in order to do so)

But yes, I do agree with your sentiment on a personal level: liberate information at every opportunity.

TtfnJohn (profile) says:

Re: Re: Re:

It gets even more complex if you bring the British Museum into the picture as by setting rights too strictly the Museum fails at its charter that it make all works available for study and research.

I have no idea what the British Library’s charter is so I might look that up later today.

As for newspapers I doubt the BNA is the only organization that has an extensive collection of British newspapers so we’ll have to wait and see what happens when other collections are digitized. If even one of them chooses less restrictive use agreements then the pressure will come onto the BNA and others to loosen up too.

Cambridge is under no such public restriction though I suspect the “it cost a lot of money to do this” argument will rear it’s ugly head at some point. Depending on what they’re digitizing scanning so that the original isn’t damaged is very hard to do. For example an illuminated codex or book made before the arrival of the printing press.

Heather Morrison (user link) says:

Librarians need a hypocratic type oath

This reinforces my belief that librarians need a professional statement of values. To me it is clear that these acts are to libraries and the profession the moral equivalent of what doctors deliberately causing harm would be to the medical profession.

The American Library Association made a good start on this in 2004; access to information is there. Maybe we need to add something like support fair and balanced copyright, something many librarians do fight for.

Chad Nelson says:

Library's looking for new funding models

Libraries, from National institutions like the BL to small public libraries, are under increased pressure to maintain there traditional services, keep meat-space stuff safe and accessible for meat-based interaction, as well as deliver content online. They are also being as asked to reduce budgets, substantially. Those two requirements are mutually exclusive.
So, libraries are looking at alternative ways of developing funding, like selling the high quality prints of digitized collections in gift shops or online to recoup the very real costs of acquiring, preserving, digitizing and delivering those collections. I certainly prefer Cambridge’s model to the BL’s though.

collage-maker says:

Copyright on public domain scans?

I recently found a similar case. A site showing scanned photographs taken from the Library of Congress. It seems many of them are old enough to be in the public domain, yet I get the impression they’re restricting any use of them as if they had copyright on them.

I thought I could use some of them to create collages but they say you can only use a 512pixel size for non-commercial use. Even when they publish 2000x1500pixel images, which anyone could download and use. I was wondering whether using the bigger images for collages would violate anything if they’re supposed to be public domain to begin with. It’s all very confusing to me.

pkgesic (profile) says:

Is that you really mean?

Hi all, I’m a newbie and I pretty much joined the site because of this thread. So hello, nice to meet you all, but I’m a tad confused.

To start with, I think the libraries trying to enforce copyright on perfect reproductions of out of copyright material is doomed to failure. How can they claim creativity? So whatever they are claiming now, it won’t hold against a legal challenge unless the law is changed. IMHO. Of course with the current, ‘oh god the piracy, we have to do something about the piracy, lets criminalise the entire nation’, attitude towards digital content, who knows what will happen?

But some of the other comments relating to copyright confused me. Copyright protects the artist not the corporation. Unless the artist was on a work-for-hire contract, or stupidly signed over all the rights to their original work to a company, the rights remain with the artist and they generate income from them, which allows them to create other works of art.

Corporations may well take advantage of copyright, but that is not the purpose of copyright. This is about individual artists retaining control of their work, it is not about corporate suits enforcing copyright to make more money.

Individual artistic copyright lasts for the lifetime of the artist plus 70 years in the UK. If it is a collaborative piece (like a film) it lasts for the lifetime plus 70 years of a fairly narrow group of people (director, writer, and so on; I think the producer is included, but can’t be bothered to check). 70 year after the last one dies the copyright ends. Something that is created anonymously has a copyright period of (something like) 50 years from first publication.
That sets out my sketchy knowledge of the law, so lets get down to talking about my confusion.

I can see how certain aspects of corporate copyright could upset people, milking it, I think was the term used. But a few people seem to think that weakening copyright somehow helps the artist and sticks it to the man. I don’t understand that at all.

JarHead seems to think that it is all about the money. That if you are dead why do you need to keep receiving royalties. Well, you may not need to receive royalties when you are dead, but what if you die immediately after finishing the work and your family needs the money you were going to earn to pay off debts you accrued when working on the artwork. Maybe they should be allowed to control your copyright for a bit, just for the sake of fairness, in a ‘no man is an island’ sort of way.

Manchin Shin suggested copyright should last 10 years. Yeah, the problem with such a short copyright span is obvious. What if the artwork takes time to build an audience? It could take more than 10 years for an audience to even exist, does that mean that the artist should receive nothing for their labour, that the corporations can simply hoover up all the cash and leave the artist destitute. Would that be fair.
And ten years is a really short time in the creativity world. Really short.
Lets take stories as an example, not just because I’m a writer but because the spin-off from stories are more varied than anything else. You can turn a novel (or short-story) into a film, a play, a computer game, a board game, a set of action figures, spin off other series or even just write some sequels. Just look at what ‘Star Wars’ and ‘Star Trek’ do, to see all the possibilities that a single story can create.
So, why would a big company, which is all about the bottom line, pay the author of a story ANYTHING. Why not just wait 10 years, then the story is out of copyright and you can do what you like. You can make a film, a game, a TV series, then have the novel re-released under your own imprint or even have the novel rewritten to make it more audience-friendly, maybe you created a character that you know is going to make big-time money in merchandise and you want them in the original story. Yeah, sure, do what you like, it’s out of copyright. The author can only weep in the corner or go postal. He or she will certainly have no rights.
The same thing can happen if copyright lasts 20 years or 30 years. Some pieces of art have a very long back-end after a very slow start.

RonKaminsky (hi) seems to think that because this is rare that it should not be covered by the law. A sort of “Sorry, you’re an outlier so you are screwed’ legal system. Very few pieces of art are really important, very few have a lifespan that can really take advantage of life plus 70 years, but a lot of artists are mid-listers. They may have another job, they may live hand to mouth, but the small amount of royalties the do earn helps to keep them afloat. Should that be taken away from them simply because ‘the economic reality is that only a very, very small minority have value in the long term.’ [RonKaminsky]
Dunno that all seems a bit Darwinian to me. “You will create important art or you will starve.”

Anyway, just airing my confusion here. Is that what you all actually meant? I’m not looking for an argument. I like robust debate and I am not trying to flame anybody, or be a troll, or any of those other nasty things the internet makes so easy. I’m just confused. Do you really want to throw the baby out with the bathwater and reduce artists to relying on patronage once again? Is that your actual intent?

Or is all this stuff actually about patents and other forms of intellectual property, which companies buy up for legal warfare in their fight to be top dog? If it is, then just be aware that not all forms of copyright are the same.

Nice to meet you all, I hope I haven’t offended anybody, this is rather a long post but my confusion was deep.

laura (profile) says:

I can’t quite understand the objection here. So Cambridge University make high quality digital images of highly prized material and make it freely available for anyone to see, but ask people not to use it for commercial reasons without permission, and that is bad?

Taking the conditions in turn, people cannot:

-Create & sell a T Shirt from one of the images without permission

-Download an image & alter it using photoshop to create “proof” that Newton wrote something different from what he really did

-Sell one of the images on the site to an unsuspecting buyer

-Re-skin the content and pretend they created it

-Re-skin the entire database and present it as their own

What is so wrong with that?

jupiterkansas (profile) says:

Re: Re:

I think the problem is that they have no copyright authority over the material because it is public domain. All Cambridge does is possess the the original manuscript. They cannot make a copy and then claim copyright on the copy. There is no legal backing for them to say what can and cannot be done with copies of the material because everyone has the right to copy and alter and resell the material, even if someone does something awful with it. In other words, the right to copy does not belong to Cambridge, but to the whole world.

Guy Etchells says:

What seems to be missed here is in Europe and the UK we also have a law which makes Database Right part of Copyright.
This gives protection for 15 years from the date of the last addition to the database.

Database Right acknowledges sweat of the brow and costs.

This allows Cambridge to claim copyright on the database collection of digitised images.

Nick Poole (profile) says:

It's a laudable aim, but...

“Those trail-blazing institutions knew that charging people to read would have been a negation of their central role in making knowledge freely available to all. And so it is today: a key part of the modern library ought to be making digital knowledge available to all, without charge, and without limitations.”

Great article, but as someone who has been involved in this field for more than a decade, there’s a profound and fundamental problem with this whole argument which hinges on the word ‘ought’.

Sure, of course the conversion from analogue to digital should be in the same category as those great public works. It is every bit as vital a piece of infrastructure as building roads and railways, schools and hospitals, and without it no society can grow.

The fact is, though, that we no longer live in an age of great public works. The vast majority of the world’s Governments (and I have worked with a few!) are too myopic, short-term and self-serving to see this for the long-term endeavour that it really is. Our study into the costs of digitisation for the European Commission showed that you could Digitise a bulk of works in public ownership for roughly the same cost (over a decade) as building and maintaining a few hundred kilometers of highway, and yet very few Governments are willing to commit themselves to a programme of more than 5 years, let alone 10.

The problem is not Copyright – or at least the issues with Copyright are the symptom of the real problem, not its cause. The real problem is that the Digitisation of our shared heritage has been beset on the one hand with political and economic short-termism and on the other by a false application of free market principles to something that is inherently not economically viable in its own right.

‘A society grows great when old men plant trees whose shade they’ll never sit in’. As long as we live in a world where funders & politicians can’t see beyond the next electoral cycle, we will continue to fail to convert our cultural heritage into a format which allows our grandchildren to use it.

Michael Edson (profile) says:

Re: #38. It's a laudable aim, but...

Nick – – Help! As part of our ongoing trans-continental candle-lit romantic discussion of this topic, can you clarify which argument and which actor you’re taking an issue with?

Are members of the public (which includes 10-year-olds and Nobel Laureates) wrong to want/expect memory institutions – – in exchange for (some combination of) tax exempt status, public financing, philanthropic support (often aided by tax-exemptions or tax advantages), tremendous real-estate, and lofty mission statements crafted to earn and maintain ongoing public trust (and all those great benefits listed above) – – to give them access to the high-quality public domain resources that they’ve already digitized, without unnecessary restrictions, and in accordance with the intent and letter of the law in their local jurisdictions?

Or are you saying that the public is right to want this, but is asking The Wrong People to pay the bill?

NickPoole1 (profile) says:

Re: Re: #38. It's a laudable aim, but...

Hi Mike,

I’ll try to be succinct, but it’s a big argument! The public has every right to expect that their common cultural heritage will be accessible to them. Access to literacy and knowledge (in which I include cultural literacy and the experience of physical heritage) is a birthright, and one to which every citizen in a free state is entitled.

The digital revolution has happened within a startlingly short space of time, and leaves us with a very specific legacy issue – which is that the primary formats for encoding and transmitting knowledge since the invention of movable type (paper, stone, canvas) has been superseded by an alternate format (bits).

This gives our generation the responsibility for retro-conversion. We can safely assume that the bulk of material created from here on for the next century will be born-digital (which confers the handy benefit that it is inherently format-shiftable, which paper is not). But for now, culture is physical.

Funding the conversion of this material is an issue which operates at a scale that is beyond the institutional. It can really only be achieved either by corporations (Google, Microsoft) or Governments, since only institutions at this scale can leverage the upfront capital required to make it work.

Bringing commercial capital in raises a specific issue – which is the need to turn the cultural artefact into an economic asset (because corporations are designed to generate profit). Some endeavours, however, improve the general lot of mankind, but are not in themselves profit-making (although I would argue that there is a symbiotic relationship between a healthy, educated citizenship and a thriving commercial sector).

Funding things that are for the public good, but not in themselves profitable, is the domain of public-service. Hence , public-service broadcasters can develop educational or exploratory broadcast content that might not perform in a purely commercial market.

Analogies to Digitisation abound – look at the way in which Governments have taken old, diverse railway systems and invested huge capital in turning them into modern standard-gauge transit networks. Once every few generations, it becomes necessary to swap out old infrastructure for new – even if the payoff isn’t realised until two generations down the line.

Because, however, most Western Governments are in thrall to the market principle, many contemporary politicians have lost sight of the privilege of long-term vision and investment, and have instead come to believe that the only path to re-election is to play to the crowd (I actually think this is a mis-understandng and that if you ask the majority of the people whether they will accept short-term taxation offset against long-term investment, they would see the value for the sake of their children).

This intellectual and philosophical position has now come to infect almost every area of public and civic life. Hence nurses must quanitfy health, teachers must quantify curricula and public art must defend itself on the basis of a return on investment (in a charming asdide, a colleague said to me last year ‘why are we judging the value of something 6000 years old by how many people came to see it last year?’).

Fussing about Copyright is tilting at entirely the wrong windmill. People adopt propositional attitudes about whether cultural institutions should or shouldn’t regard their collections as their property, and seek to monetise them as Intellectual Property. Cultural institutions themselves are hugely conflicted because behaving this way goes fundamentally against their instinct to collect, preserve, interpret and share.

In legislative terms, and even as a principle, Copyright is one of the more straightforward bits of most legal frameworks. What people are really arguing about is the economic basis of culture as a public good, and they are choosing copyright as the most coherent focus around which to argue. After many years in the business, I know that a license is nothing more or less than a contract – what really matters is the commonality and shared understanding of intent that goes behind the meaning of the contract.

This is why I take issue with the word ‘ought’. The public think culture ought to be free, culture thinks culture ought to be free (the ‘protectionist’ curator is, I think, a dying breed), most politicians when pressed will say that culture ought to be free. But this generation of politicians is inherently unsuited to the kind of visionary thinking required to make the necessary investment. The public, for their part, are not demanding it (because there isn’t a coherent enough ‘crisis’ to get them off the sofa). The sector, for our part, is spending *far* too much time battling over the endless theological posturing of copyright and has completely failed to articulate a clear and compelling case to Government or the public for why this is urgent.

So, when you ask which actor I mean, I mean that we are all complicit in this situation. Copyright evangelists and ‘open’ lobbyists need to stop being so naive about the fundamental realities of running an organisation and learn to work with cultural institutions within a pragmatic framework. Cultural people need to stop playing the Industrialist. Governments need to see past getting re-elected and put money into the long-term welfare of their populations. Technologists need to stop presenting the latest bit-shunting trick as The Answer and learn to facilitate real need.

Until at least one of these starts to happen, I fear we’re all going to be locked into exactly the same ghastly recursive mud-slinging we’ve been in for the past two decades.

Michael Edson (profile) says:

Re: Re: Re: #38. It's a laudable aim, but...

Nick – – so you’re mad at…everyone? That’s so unlike you!

I don’t want to presume, but I can see where I think you’re coming from – – trying to make Big Progress in the bight (in the nautical sense) between Government, law, technologists, copyright evangelists, The Public (in aggregate), and pooles (no pun) of heritage organizations thinking about all of their collections. From that perspective, Gunning for the Big Wins but having to deal with the Big Headaches of the lowest common denominator of collective strengths, weaknesses, and neuroses, I?d be mad at everyone too!

(Below, shadow-boxing with The World, through you. You’re welcome.)

I’ve been mulling this over and I’m uneasy casting Glyn’s Public Domain WTF into the same parent class as a lobby of inflexible Copyright Evangelists and then dismissing it as being an impediment to progress. Glyn isn’t saying all content should be free, he’s saying that digitized Public Domain materials (like the 17th century mathematical treaties and 19th century newspapers described in his post) should not be enclosed in faux copyright or restrictive terms-of-use statements – – especially when the holding Institutions are publicly funded. I think public institutions could afford to do this?I think they can’t afford not to do it.

Most of the institutions I’ve talked to and studied attempt to restrict access to digital reproductions of public domain works because they think they’re making money off of them. With some groups of content they are (arguably, depending on how they account for cost-to-market), but as you know there’s a lot of evidence that that most heritage organizations lose money running licensing and rights-and-repro offices for their digital collections – – even when they only count a fraction of their true cost-to-market in their balance sheets. (I’m thinking of Simon Tanner’s 2004 Mellon Foundation study and the V&A Images study – – {ref: }). I wonder if we could lose just as much money?but get better civic outcomes?giving the public domain stuff away?in harmony with our missions and with the intended purpose of PD law (in the US at least)? Our digital strategy says we should do exactly that.

I’ve also found that only a few organizations have teams with a solid grasp of digital content issues, public domain and copyright issues, business acumen, and desirable mission-based outcomes – – and can put them in the same room at the same time and allow them to share credit for each others’ success. Without this kind of cross-disciplinary teamwork it’s hard to imagine any other way to create value from digitized public domain content than to treat our online holdings like a rental property and let gatekeepers directly charge for limited access to the inventory.

A final thought: digitizing heritage collections doesn’t have to be an enormous public works project like roads or railways. In that analogy, the big infrastructure has already been built: it’s the Internet. The rest can be (and probably will be) small pieces loosely joined. It’s already happened – – huge aggregate numbers of small batches of useful things put online in an effort spread across individual collections, departmental work groups, volunteers, experts, and citizens. The work has already been done, the content is there, and we’re pissing off what are potentially our super-fans, donors, and most passionate advocates by (what I personally feel is) gaming the system. We’re also throttling re-use, which creates a negative feedback loop that undermines our efforts to convince new funders and long-tail audiences that heritage collections are worth supporting – – are worth fighting for.

[And this article and thread aren’t complete without a link to Yale’s new(ish) public domain policy and associated documents/statements. (Trail head at same link as above: ) Yale does an awesome job of laying out the arguments for unrestricted access to high-quality public domain materials from the perspectives of mission, money, leadership, and the law. Quite well done.]

Chris Unitt (user link) says:

The British Library project is a partnership with a company called brightsolid (who also own Friends Reunited, among other things). They paid for the digitisation (presumably the BL couldn’t afford it) and will be looking to earn back their investment.

brightsolid is taking on the commercial and technical risks of the project, with no direct costs to the British Library. The firm will digitise content from the British Library Newspaper Library, which it will then make available online via a paid-for website as well as integrating it into its family history websites.

They’ve got a 10 year deal. I wonder what they’ve agreed to do with the rights after that.

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