The Curious Case Of The Bogus CC License On A 3D Scan Of A 3000-Year-Old Bust Of Nefertiti

from the once-public-domain,-always-public-domain dept

Techdirt has written a number of stories about museums and art galleries claiming copyright on images of public domain works. That's really not on for institutions that are supposedly dedicated to spreading appreciation of the masterpieces they hold. The latest example of this unfortunate habit is a complex and fascinating tale involving the famous bust of Nefertiti, found a century ago, currently displayed in Berlin's Staatliche Museen.

A rather improbable story that people had managed surreptitiously to scan the bust at high resolution piqued the interest of the artist Cosmo Wenman. It seemed likely that the 3D scan files involved had been produced by the museum itself, so Wenman decided to use German freedom of information laws to request them officially. As his long and fascinating post on the 3D Nefertiti saga explains, the German museum was singularly unhelpful:

it acknowledged the existence of the Nefertiti scan and acknowledged that the organization was required by law to give me access to it. But it also declared that directly giving me copies of the scan data would threaten its commercial interests. The Egyptian Museum sells expensive Nefertiti replicas in its gift shop, and it implied that it needs to protect that revenue to finance its ongoing digitization efforts.

In museum-world parlance, this argument against open access is known as "the gift shop defense."

In the end, it turned out that the money generated by using the scans to make replicas was pretty minimal. Reflecting the weakness of "the gift shop defense", the museum sent Wenman a copy of the scans, but with a twist:

To mark their territory, [the German body overseeing museums] had inartfully carved a copyright claim directly into the flat underside of the 3D model. And without explanation, it had included a Creative Commons "CC BY-NC-SA" license.

A good analysis of the situation by Michael Weinberg points out why this is bogus:

Creative Commons licenses are copyright licenses. That means that if you violate the terms of the license, you may be liable for copyright infringement. It also means that if the file being licensed is not protected by copyright, nothing happens if you violate the license. If there is not a copyright protecting the scan a user does not need permission from a 'rightsholder' to use it because that rightsholder does not exist.

The central issue is whether a high-resolution 3D scan of an object unequivocally in the public domain, is also in the public domain. An earlier article by Weinberg explains that in the US it seems clear that producing an accurate scan of a public domain object is also in the public domain. It's slightly less clear-cut in the EU, but even there 3D scans are unlikely to be protected. Moreover, one of the few good things in the generally awful EU Copyright Directive is explicit confirmation that material resulting from reproducing art that is in the public domain is also in the public domain, "unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation". An accurate 3D scan does not fall into that category -- something that EU Member States could and should make clear when they implement the Copyright Directive in their national legislation. Weinberg also raises the issue of "moral rights" -- things like a right of attribution and a right of integrity:

While removing attribution or intentionally modifying the work to remove the fake [CC] license might create problems if the Staatliche Museen was the 'creator of the work' for copyright purposes, that is not the case here. The Staatliche Museen did not create any work that is recognized under US (and soon EU) copyright law. That means that there is nothing for the moral rights to attach to.

A post on the Creative Commons blog points out the use of bogus CC licenses causes collateral damage beyond simply misleading people about what they can and cannot do with material that is in the public domain:

Creative Commons licenses are tools to allow users to better understand what permissions are being granted to the public by the creator of the original work. When a CC license is misapplied, the ability of CC licenses to be a standard signal for communicating copyright permissions is undermined. Mislabelling works creates confusion among re-users of works and limits the rights of the public to benefit from the global commons.

It is doubly reprehensible that supposed guardians of culture should not only be asserting intellectual monopoly rights they don't have over materials in their collections, but that they should be undermining one of the most important tools available for promoting the sharing of culture -- the carefully-calibrated range of Creative Commons licenses.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: 3d scans, cc licenses, copyfraud, copyright, cosmo weman, creative commons, foia, museums, neferiti, public domain
Companies: creative commons, staatliche museen, the egyptian museum


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  • icon
    Anonymous Anonymous Coward (profile), 22 Nov 2019 @ 10:59am

    Here ya go, but don't you dare try to make money off it

    I am not sure how curious this is, now that we have entered the age of everything must be owned. Wrong headed, maybe illegal, controlling might be better descriptions.

    Maybe the museum is bitter about how few of their pricey replications they have sold, though I don't see how behaving in this manner is going to improve that situation.

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  • icon
    Wyrm (profile), 22 Nov 2019 @ 11:35am

    Definition of "public domain"

    This kind of behavior will continue as long as there is no clear definition for and active enforcement of the public domain. Under the current culture of "everything must be owned", public domain is just "leftovers" when property rights expire, hence the negative image of works of art "falling into public domain".

    Copyright law should be rewritten to explicitly mention that the goal of any particular work is to move to public domain after a finite duration, along with redefining "finite duration".

    As a side note, a duration that is extended by 20 years every 20 years is not "finite". At worst, the date of the move to public domain should be fixed at the time of the creation of the work. Retroactively extending the duration of these rights should have been forbidden a long time ago. There is no added incentive to create any given work of art by adding duration to it when it's already created.

    Back to the main point: it's important to clearly define public domain, not as a "default status when rights have expired", but as a clear "collective ownership by the public". This would particularly allow standing to sue for anyone when a work is misappropriated, like in this case when a museum pretends it has the right to assign a CC licence to the 3D model of a public domain item.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 23 Nov 2019 @ 10:46am

      Re: Definition of "public domain"

      I've always wondered why a member of the public wouldn't have standing to sue a company for untrue assertions of ownership of public domain works. Granted, each individual citizen owns a very small share of the public domain, but they do own it.

      The recent story about the "yes we have no bananas" song and Universal Music comes to mind -- UM monetized someone's recording of public domain music, with no recourse for the owner of the recording. That would seem to be a violation of copyright.

      reply to this | link to this | view in chronology ]

  • identicon
    kog999, 22 Nov 2019 @ 12:03pm

    giftshop

    "The Egyptian Museum sells expensive Nefertiti replicas in its gift shop, and it implied that it needs to protect that revenue to finance its ongoing digitization efforts."

    people buy gift shop items to remind them of their trip to the museum as a souvenir. no one is going to the Museum just to get the replica because they can't a replica anywhere else. likewise no one will go to the museum, then stop by the gift shop see a replica that they were going to purchase but decide to search amazon for a knockoff instead. giftshops make money because its attached to the museum and is "official" it doesn't matter if knockoff's exist or not.

    reply to this | link to this | view in chronology ]

  • icon
    Boojum (profile), 22 Nov 2019 @ 12:15pm

    Copyright may well apply under U.S. law

    I'm not familiar with UE law... but I know that in the united states, if I take a picture of a public domain work with my camera, there are definitely elements of my picture that are copyrightable. Specifically, the things that I bring (lighting, film speed, angle, etc) are entitled to copyright, which then applies to prevent the entire digital picture as a whole from being copied without permission.
    I have also done high res scans of objects. After you scan them, there is normally a lot of manual cleanup work that you need to do to the mesh. That work is entitled to protection. Certainly the Copyright notice they carved into the bottom of the mesh is protectable, because that was not on the original.
    There are publishers who deliberately include mispellings and errors in translations of public domain works so that they can protect their translation from someone producing their own translated work that is completely based on the first persons translation work.
    So just because something is in the public domain doesn't mean that a digital copy (photograph, scan, or whatever) is in the public domain. This is particularly true when someone puts effort into altering, cleaning up, and otherwise changing the base copy. At least under current U.S. law.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 22 Nov 2019 @ 5:10pm

      Re: Copyright may well apply under U.S. law

      So just because something is in the public domain doesn't mean that a digital copy (photograph, scan, or whatever) is in the public domain. This is particularly true when someone puts effort into altering, cleaning up, and otherwise changing the base copy. At least under current U.S. law.

      Bridgeman v. Corel says you're wrong.

      https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

      reply to this | link to this | view in chronology ]

      • icon
        Boojum (profile), 22 Nov 2019 @ 9:06pm

        Re: Re: Copyright may well apply under U.S. law

        Cool reference, and I yield the point! Thank you for pointing me towards that case. This means that the only copyrightable element in the mesh is the copyright notice that has been emebedded into the bottom of the base. Luckily, that sort of thing is easily filled in so that it goes away.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Nov 2019 @ 12:24pm

    I'm not sure that in this case the scan is not copyrightable -- the rule is that a replica scan of the original non-copyrighted work cannot be copyrighted.

    But this 3D scan is not an exact replica. It's got an awful copyright decoration etched into the bottom.

    So as long as that exists in the scan data, this is a modified work. For it to be in the public domain, the copyright data has to first be removed to restore the scan to its original replica state.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Nov 2019 @ 3:34pm

      Re:

      Even without the copyright thing carved in the bottom of the model, I'm not sure this falls outside of what is copyrightable.

      If I brought my 3D scanner to a museum and they let me use it to scan something the net result is unique. I could rescan that same thing 1000 times and every scan would be different. That model typically requires further manual refinement as the scans are never perfect. That work can take many hours and the scanner itself is very expensive. If someone were to tell me that the result of all that work is in the public domain simply because the original subject was I think we'd have to let the courts decide.

      Now, if I used that model to then print or otherwise manufacture replicas of the original I don't expect that object would then be copyrightable as it is a replica of a public domain work. But the 3D model I created in order to produce the replica? Yeah, that's mine.

      reply to this | link to this | view in chronology ]

      • icon
        Wyrm (profile), 22 Nov 2019 @ 4:19pm

        You fail to get the point of copyright.
        What you're doing, even with different scans on different settings, is not "your expression". You're still trying to capture something as close to possible to the original. A technical process trying to replicate a non-copyrightable work is not copyrightable in itself, even if it's not the copy is imperfect.
        There have been judgments on this matter already.

        It might be different if you deliberately mess with the settings to create a new item inspired from the original, like an 8-bit color version with a blocky Lego-style structure. But that is clearly not what we're talking about here. This is even less "creative" than taking a photo of a painting (which I think was the subject of one the judgment I mentioned above.)

        reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 22 Nov 2019 @ 4:55pm

          Comparison

          To expand the topic of "copies" that can't be copyrighted even though some creative effort is put into the process of copying.

          If you take a photo of a page from a phone-book, fiddle with the contrast and sharpen it so it scans better into an OCR-program which then spits out the entries from the page as a text-file, the text-file doesn't qualify for copyright even though you may have applied some creativity in the process of tweaking the scan because the result is just a representation in another format of something that can't be copyrighted.

          reply to this | link to this | view in chronology ]

          • icon
            Wyrm (profile), 23 Nov 2019 @ 6:31am

            Re: Comparison

            That is not "applying creativity".
            Trying to find the best settings to make a copy as close to original as possible is not "creativity".

            Also, your analogy fails on another level, as phone books are a collection of non-copyrightable facts. You could at worst copyright the format you use to present your list (font, colors, layout and other embellishments), but you cannot copyright the data itself. (Although there are other ways to "protect" data, it is not the subject of copyright.)

            The closest analogy to the case presented in the article is taking a photo of a painting. You have to make settings, both environmental and technical, to take the photo with optimal lighting, contrast, focus and whatever else makes a good photo. But it has already been judged that those don't count as "creative" choices when the goal is to make a close or exact reproduction.

            reply to this | link to this | view in chronology ]

            • icon
              Wyrm (profile), 23 Nov 2019 @ 6:38am

              Re: Re: Comparison

              reply to this | link to this | view in chronology ]

            • identicon
              Rocky, 23 Nov 2019 @ 11:11am

              Re: Re: Comparison

              You do have experience with taking an existing crap photo and get it too look good then? Because there is some creativity involved in getting a crap photo looking good, but I wouldn't call it transformative. Just as I wouldn't call taking a photo of a painting transformative enough to warrant a copyright on the photo. But you know as well that there are some that say that the very act of "manipulating/changing" something is transformative regardless if it's creative or not.

              Also, my analogy specifically uses a phone book because the entries can't be copyrighted, just as the statue can't be copyrighted. Scanning and converting the entries into a text-file is analogous to scanning the surface of the statue and saving the result as a point-cloud file, ie. neither falls under copyright even though someone actually had to put some work into it.

              From both those files you can reconstitute an exact replica for the attributes that matter in each case, and none of it falls under copyright.

              reply to this | link to this | view in chronology ]

              • icon
                Wyrm (profile), 27 Nov 2019 @ 11:31am

                Re: Re: Re: Comparison

                Congratulations on missing the point. The important point is: are you trying to make something new/original or reproduce something as close to possible to the original...
                How much technical knowledge and "creativity" is required in the process is irrelevant. We do agree in the end, but it's important to underline that this kind of technical "creativity" is not what the courts consider relevant.

                Creativity in that case is about "creating something original", not about "using a process that requires personal judgment". What matters is the end, not the means.

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Nov 2019 @ 6:41pm

          Re:

          I don't think https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp would apply to a scan. A scan isn't a photo. A photo is the final product and it little more than a copy of the original work. A scan is not the final product nor is it merely a copy of the original; It is an intermediate product used to create the final product. That scan isn't purely machine made; A lot of manual tweaking and, yes, creative choices made along the way. Though the scan, when rendered on a computer screen will look remarkably like the original thing that was scanned, it is not that thing.

          3D models are constantly bought and sold on the internet. A carefully crafted scan, adjusted to be a usable model, should be protectable like ay other creative work. However, someone buying that model and then producing copies of the original object would not be creating a protectable work.

          I look forward to a court decision on this.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 24 Nov 2019 @ 2:32am

            Re: Re:

            Now for the glaring hole in any protections of the scan, other people can produce scans of the existing object, or models created from those scans. Trying to protect such easily reproduced works as scans and photographs of existing objects is trying to protect the making of such things, rather than the what was created.

            reply to this | link to this | view in chronology ]

          • icon
            Wyrm (profile), 27 Nov 2019 @ 11:25am

            Re: Re:

            The concept is the same: trying to get a reproduction that is as exact as possible. The digital 3D model is just an intermediate step to that end, much like the film used in analog photography or the file in digital photography. This doesn't change the fact that this attempts to make a reproduction without originality.
            I gave some examples of what might be considered "added originality" - and that has yet to be tried in court - but a direct scan is definitely not.

            reply to this | link to this | view in chronology ]

  • identicon
    Museum, 22 Nov 2019 @ 1:55pm

    Your opening is slightly off. The bust is displayed in the egyptian museum not in all of berlins state museums. (Museen is the plural) That said sa preisn damische.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Nov 2019 @ 8:09pm

    Just wait until Nefertiti's estate gets involved claiming publicity rights.

    reply to this | link to this | view in chronology ]

  • identicon
    AlexisR200, 23 Nov 2019 @ 9:12am

    The scan is a fact accurate representation of an article in the public domain. That a museum commissioned the scan or performed it in house creates no copyright at all. Facts aren't copyrightable. There is nothing creative about a 3D scan.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Nov 2019 @ 6:42pm

      Re:

      I can only assume you have never done any 3D scanning or modeling. Because you're wrong.

      reply to this | link to this | view in chronology ]

      • identicon
        Aussie Anon, 27 Nov 2019 @ 10:48pm

        Re: Re:

        If I do a 3D scan of a Lego piece, the copyright belongs to Lego.
        If I do a 3D scan of my hand, the copyright belongs to me.
        If I do a 3D scan of Da Vinci's helicopter, the work is Public Domain as Da Vinci's works are Public Domain.
        No matter how much work goes in to the scan to get replication you simply cannot put new copyright on a piece of Public Domain work, particularly if it is a "slavish copy" (to use the USA's wording regarding https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp).

        reply to this | link to this | view in chronology ]


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