The Met Goes Public Domain With CC0, But It Shouldn't Have To
from the unfortunate-necessities dept
The ongoing digitization of the vast wealth of material sitting in museums and archives around the world is one of the greatest projects of the digital age — a full realization of the internet's ability to spread knowledge and culture to all. Or it would be, if it weren't for copyfraud: for every museum genuinely embracing open content and the public domain, there's another claiming copyright on public domain images and being backed up by terrible court rulings.
And so it's fantastic to see The Metropolitan Museum of Art joining the former camp with a new Open Access policy that is putting images of 375,000 works online with a CC0 public domain declaration. The Met actually partnered with Creative Commons, Wikimedia, Pinterest and others to help make this happen, and has even announced its first Wikimedian-in-residence who will head up the project to get these images into Wikimedia Commons and onto Wikipedia.
This is all great, but here's the annoying thing: it should be totally unnecessary. These are digitizations of public domain works, and there's no reasonable basis for granting them any copyright protection that would need to be divested with a CC0 mark in the first place. They are not creative transformative works, and in fact they are the opposite: attempts to capture the original as faithfully and accurately as possible, with no detectable changes in the transfer from one medium to another. It might take a lot of work, but sweat of the brow does not establish copyright, and allowing such images to be re-copyrighted (in some cases hundreds or even thousands of years after their original creation) would be pointless and disastrous.
Instead of the CC0 mark, the Met should be able to use a lesser-known Creative Commons tool: the Public Domain Mark, which indicates that something you are sharing is already in the public domain (whereas CC0 declares that you have rights in it, but are relinquishing them and releasing it to the public domain). And while the Met probably could have done so (and likely discussed this with CC since they were partners in this project), it's understandable why they decided not to: the statutory public domain is so damn weak and vulnerable that it can't be trusted, and a CC0 license is actually a much stronger way of ensuring nobody tries to exert control over these works in the future.
As Creative Commons points out on their information page for the Public Domain Mark, they don't recommend it for works where there is any doubt, in any jurisdiction, that they are in the public domain — a category that is virtually empty when all factors are considered. Though efforts to establish copyright on digitizations of PD works have mostly failed in the US, they have gained ground in Germany and the UK among other places. And attacks on the public domain are creative and frequent in the US too. Though it's somewhat hard to envision how another party could swoop in to attempt to take copyright control of the Met's digitizations, there would also be the possibility of the museum changing its stance in the future — and any such uncertainty creates a chilling effect where everyone who wants to make use of the images has to think twice. The CC0 mark is the strongest available statement that something is in the public domain.
Sadly, even CC0 is not completely waterproof, and it's a problem in the first place that the only way to release something into the public domain in most jurisdictions is via a third party's special licensing tools, not an official legal mechanism under copyright law. That's how you end up with a museum needing to partner with international copyright experts just to be able to make it absolutely clear that they don't own any rights to an unknown copyist's 100-year-old painting of a 4000-year-old Egyptian relief, which frankly should have been obvious. Kudos to the Met for doing everything it possibly could in a world that sometimes seems determined to snuff out as much of the public domain as it can.