21.02.2017

Willing to share?

By Ellen Euler, Anne Klammt and Oliver Rack

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The question of the willingness to share digitally and to make digital participation possible assumes that the cultural heritage institutions (museums, collections and archives) have an option and questions where this willingness is possibly limited. What exactly is hindering cultural heritage institutions from sharing – a lack of legal regulations, insufficient funding or their own self-perception? Whether and how cultural heritage is to be made available digitally, how this works in practice in the cultural heritage institutions and how politics could react to this will be subsequently shown following an event of the same name.[1]
 

Why our cultural heritage must be available digitally

In the meantime we obtain our knowledge first and foremost from the internet. We not only search and find information here on digital offerings, but our access to the analogue world takes place meanwhile via search engines. Here we find the book titles on the topic in which we are interested. Here we decide on which electricity provider. With a wizard we can try out hairstyles and consider where we can best combine culture and nature on holiday. And therefore it can definitely be said that “that which cannot be found on the internet does not exist in our perception.” However, this defect is not usually noticeable, since the algorithms find an answer to almost every question for us. But how good this is depends on what we can offer in the way of data.
 
With reference to cultural heritage the lack of availability means, therefore, that knowledge about our distinct cultural identity, which has an influence throughout all times, is lost to us – for the most part largely unconsciously and unnoticeably. If we do not make our cultural knowledge accessible digitally, then this will be as though we would close the doors of our cultural heritage institutions (libraries, museums, archives, etc.) in digital space. In doing so, however, we not “only” lose knowledge, but also sources of inspiration and the foundations for innovations and new creations. Even paintings from the 18th century as well as early sound and film recordings, scientific specimens, archaeological artefacts and many other things are still of great interest today. Thus they should not only be freely accessible physically as an object, but also digitally in virtual space and can be used freely in a networking sense.
 
The different forms of a renaissance would be unthinkable without the availability of cultural storage places, which exist in particular in the form of libraries, museums and archives. Digitisation makes the accumulated holdings visible again and so they can become effective in new and current contexts. New things build on old – this can be seen in fashion, music and art with techniques like tributes, remixes and re-sampling. But we are also successful in science today, for example by estimating the economic consequences of climate change from old account books.
 
In principle, all cultural heritage institutions are aware of the problems described and they are in agreement on free accessibility and have, therefore, recently optimistically summarised a report on the discussion “Willing to share?” in Mainz:“ [There] is hardly a museum which does not provide access for the viewer,”[2] or at least wishes to do so. There is, however, disagreement as to whether and how the use of digital images of public domain works should also be made available over and above access.

How our cultural heritage must be digitally accessible: Cultural Heritage Institution 4.0?

Digital collections and digitorials such as, e.g., the remarkable high-quality offerings of the Städel Museum make participation possible. And yet they remain tied to the conception of a world in pre-digital times. The culture of digitality in which we live today is based on the principle of sharing and amending, as the media theorist Felix Stalder pointed out in 2016.[3] Undoubtedly this has a political dimension and means, among other things, that the role of the museums and archives as custodians and imparters of knowledge no longer fits. By merely imparting knowledge, the cultural heritage institutions continue to retain the prerogative of interpretation of cultural heritage in many ways and do not allow users to participate on an equal footing.[4] The digital users, with their different skills and expertise, do not become allies and partners, but remain consumers.
 
For consumers to become active prosumers, cultural heritage must be made freely available digitally. This refers to digital images (digital photos, 3D models, soundtracks etc.) of cultural treasures and these themselves, but also to textual and technical (indexing and meta-) information about these.

Prosuming: remix und sharing culture

When cultural heritage can be reproduced digitally as often as necessary and free of wear and tear without a loss of quality, and can be amended as well as edited, prosumers can actively deal with this, enrich it, (re-) contextualise it and create new knowledge and new works.
 
This is exactly what is happening in the digital remix culture. Gifups, memes and samples are created here using existing works, whereby the special feature of this is that the works remain clearly recognisable.

(Foto: Ellen Euler, Werk: Jēkabs Kazaks “Ladies at the Seaside”, 1920)
(Photo: Ellen Euler, Painting: Jēkabs Kazak's “Ladies at the Seaside”, 1920)
 
Works also remain clearly recognisable in the sharing culture with which, with the aid of digital media, we are connected and exchange content with a wider public at all times via social media (like Twitter, Pinterest, Facebook, Instagram etc.). In the sharing culture, images have become a part of everyday communication and are increasingly the second most commonly-used medium of “instant communication” besides language[5]).

Open data interfaces, open science, digital humanities or simply: facilitators instead of treasure guardians

In addition to the digital images of works, information about the objects must also be able to be used so that networking is possible. It is this that makes a navigable digital sea of knowledge (see graphic) out of data islands and makes contextualisation possible. With no other medium can contexts be produced so well as with digital and networked media. However, this presupposes that the metadata is structured and linked as information just as much as further information about the context and free availability of open data interfaces.

"Meer des Wissens" (Grafik: mainzed.org)
"Ocean of Knowledge" (Image: mainzed.org)
This information, so-called metadata, is a descriptive data layer in which knowledge about the object’s context is included. That is, that which makes the digital picture of a stone in Museum X into the gravestone of an important female poet, whose diaries are in Archive Z, in which references to her friendship with female physicist B can be found. With new methods and analysis tools, completely innovative questions in the digitally-supported humanities and cultural sciences (also often referred to as digital humanities) can be asked.

This no longer only applies to texts. With image recognition tools, combined with standardized norm and geodata, extended questions can also be asked on other content. In this way visualisation techniques can make connections visible in such a form so that in turn new insights can be gained (see, for example: http://infovis.fh-potsdam.de/ddb/).

Screenshot Deutsche Digitale Bibliothek visualisiert
Screenshot Deutsche Digitale Bibliothek visualised
What emerges here when these data from the cultural heritage institutions are made accessible is nothing less than big cultural data. The links no longer emerge from the work of individual scientists but with the aid of algorithms, which can be “commissioned” by quite different groups. These can still be protagonists from the cultural sciences but also, for example, local authorities wishing to work out an offer for cultural tourism or a private service for compiling genealogies.
 
In this way cultural heritage institutions lose control of the cultural narrative. But they still provide contexts into which they put all their knowledge into the metadata of the individual objects and make it possible for others to tell stories, produce new connections and create added value.
 
When data is made freely available in standardised form via open interfaces, then it is especially the digital economy which can make use of this and create value-added applications. For here the cultural heritage institutions themselves have neither a mandate nor the necessary capacity and expertise. This is, for example, also true for new points of access to our cultural heritage, via optimised search possibilities – such as searching for moods, colours and weather.[6] Cultural hackathons like Coding da Vinci provide a first impression of what potential open cultural data have, which are made freely available in standardised form via interfaces.
 
It is only when objects and data are freely available to the general public via open interfaces that cultural heritage institutions will become enablers, so-called “facilitators”. But this was always the task of cultural heritage institutions. Cultural heritage is stored by them so that it is available now and in the future. They have the task of making knowledge and artefacts available so that these can be respectively contemporarily valued and not be buried deep in the ground like treasure which remains hidden to us.

The legal framework conditions

Law, and especially copyright law, is of vital importance for the organisation of digital and digitised cultural heritage. The reason for this lies in the nature of copyright law as an exclusive right. On this basis each of the respective rights holders [7] – originators, publishers, recording companies, film producers and database providers – is free to decide whether and who may store, copy and make their works accessible digitally. As a result market-related economic interests come to the fore. On the other hand the general interest in digital preservation, accessibility to and usage of cultural heritage not yet in the public domain[8] can only be taken into consideration by way of legal exemption clauses - in Germany (and in Europe) therefore only in a very limited way, which distorts the picture of cultural diversity.[9] The Director of the Martha Herford Museum of Contemporary Art, Roland Nachtigäller, recently described this vividly and summed up that rights holders are depriving themselves of an important basis by enthusiastically collecting additional fees.[10]
 
Summing up it can be said that cultural heritage institutions need greater freedom to act, so that they can digitise our cultural knowledge and heritage as comprehensively as possible and make it available digitally, as well as also handing down across the generations genuine digital cultural heritage, which has emerged in the light of new media and cultural techniques.[11]
 
At least that which is already in the public domain, and hence no longer protected by copyright, can be digitised and made available without having to clarify and obtain rights in a time-consuming manner. This should therefore take place as comprehensively as possible.
 

For, to use Roland Nachtigäller’s image of art in the public domain, the museums will otherwise deprive themselves of an important basis. If they make nothing available, then neither they nor our cultural treasures will exist in digital space (see introduction). If they make poor quality available, then this will be fruitless. For prosumers do not want just any sort of access to cultural heritage, but they will always prefer the freest offering of the highest quality. They will not search long for this, in order to undertake applications and obtain knowledge, but they will search there where they are anyway: at Wikimedia, Pinterest, GitHub. Museums which engage in partnerships and make free and high quality access possible set golden standards. For instance, the Metropolitan Museum of Art (MET) most recently released 200.000 works digitally into general public freedom. The MET Director for Digital Works summed up: “To make the Museum as accessible as possible, we need to ensure that the collection exists in those online locations where people already go for doses of creativity, knowledge, and ideas.”[12]

What is making access to digitised public domain cultural heritage all about? What legal features have to be taken into consideration? 

Rights can emerge on digitisation of public domain cultural heritage!

Although cultural heritage institutions are free to digitise public domain cultural heritage and to make this accessible it is, however, possible that they themselves will become rights holders through digitisation, namely then when the images of public domain works are for their own part protected.
 
One option could be the protection of digital reproduction photography as a photograph from Section 72, Paragraph 1 UrhG (German Copyright Law) or even as a photographic work from Section 2, Paragraph 1 UrhG. Whereas developing a photographic work requires personal artistic and creative effort, the protection of a photograph only calls for a personal intellectual effort.


Bereit zu teilen Grafik Englisch

The line describes the so-called “threshold of originality” from which the entitlement to copyright arises.

Whether new rights on the reproduction emerge from the digitisation of public domain cultural heritage is a challenging question and is not judged uniformly in case law (Yes: LG Berlin LG Berlin 19.05.2015, 16 O 175/15 and 31.05.2016, 15 O 428/15; LG Stuttgart 27.09.2016, 17 O 690/15 No: AG Nuremberg 28.10.2015, 32 C 4607/15; LG Munich 27.07.2015, 7 O 20941/14).[13]
 
According to their Director Professor Dr. Alfried Wieczoreck, the Reiss-Engelhorn Museums in Mannheim wish to have this question decided at the highest judicial level. To this end the museum has not only brought an action against an agency based in New York for the commercial use of a reproduction photograph of a public domain portrait of Richard Wagner (painted by Cäsar Wllich in 1862), taken by a museum’s photographer, but also against a photographer who had uploaded this on Wikimedia Commons and who had additionally made his own reproduction photographs in the museum despite a ban on photography and likewise uploaded these on Wikimedia, as well as against Wikimedia Deutschland for making these digital reproduction photographs available.
 
The museum’s objective is to secure for itself the authority to decide whether and how digital copies made by itself may be used by the general public and, in addition, to ensure that third parties may not make their own unauthorised reproduction photographs of “public domain” paintings, since this could undermine the museum’s authority to decide. The District Court in Stuttgart, to which the museum appealed in their action against the photographer, decided that first of all photographic rights emerge from the digitisation of paintings though digital reproduction photography, on which basis the decision-making power rests with the museum. Secondly, the museum may decide on its own house rules and tangible property as to whether and under which conditions photographs may be taken.[14]
 
Before this, District Courts in Berlin, to which the museum had appealed in an action against a picture agency and Wikimedia Deutschland, had already decided that digital reproduction photographs of paintings are protected by copyright as photographs. Wikimedia Deutschland is challenging the decision against them, because it cannot be denied that the affirmation that protection of photographs emerges by digital reproduction photography in connection with ownership of the tangible object and the decision-making power concerning under which conditions access may be granted (via the house rules) can lead to an “artificial” extension of the term of the copyright.[15]
 
At the end of the day it is about whether a painting can actually be treated as a 3D work and photographing the painting can be judged to be a “personal intellectual effort” just because operating a camera requires technical skill. If the courts argue that if snapshots are protected, this protection must apply all the more to elaborate digital reproduction photographs, then they do not take into consideration that, as a rule, snapshots show a situation and three dimensions. The decision on whether the situation shown was worth being photographed does actually constitute a “personal intellectual effort”, even if nothing else was done than pulling out a mobile phone and taking a picture.
 
On the other hand adjusting and operating a camera on taking a high-quality digital reproduction photograph means effort and constitutes without question a technical skill, since certainly the painting as such should be photographed as originally as possible, that is from the front, if not necessarily with structure but still however as space, and there can be real doubts as to whether there is a “personal intellectual effort” here. Likewise, a forger who applies all of his artistic skill in making a copy which cannot be distinguished from the original does not receive any protection for this artistic effort. Not even a copyright exists. As with the photographic reproduction of the painting, a copy is made here which, so it could be argued, the closer it is to the original, the less it deserves protection. A pure reprograph, whether created as a photograph or by hand, is and remains a copy and as such it does not deserve protection!

But for the time being the following applies: “Ultimately the museum retains the decision-making power regarding the evaluation of the results of its photographic works as to whether and how these work results can be utilised,” which is the conclusion of the law firm representing the museum.[16]

In the opinion of the author it is revealed at this point that on the question of whether and how cultural heritage institutions should share their stored public domain cultural heritage, it is not a question of a legal issue, but it is nothing less than how cultural heritage institutions understand and design the digital transformation.


Source: Oliver Rack

Collecting, storing, researching, imparting knowledge – and making profits?

On the one hand when museums require rights holders of contemporary art to make utilisations available, but on the other hand then when rights emerge from the digitisation of public domain works treat these rights restrictively and, moreover, do not allow images of the public domain works in the exhibition, this is contradictory and a difficult balancing act.
 
If we wish to generate innovations and information in Germany and Europe ourselves, and not only establish the conditions for these to emerge elsewhere where there are better terms and conditions of use due to territorial copyright, then it must be in our interests that the content and related information are not just freely available digitally in high quality in standardized formats via interfaces in other judicial areas, but also in our country!

Free access should be the rule, reserving rights the exception.

This is the basic prerequisite to exploit in full the potential described which digital and networked media offer for cultural updating. Therefore, museums and archives should consider how they can succeed within their digital strategies in making their own research more visible and, in doing so, meet the requirements of open data (freely accessible data) and open access (free access to research results).
 
But if museums assert rights to digital copies, then this hinders these works from being included into digital cultural updating in the forms described. Regardless of whether rights to a digital image emerge by digitisation or not, the museums should ensure that public domain works also remain digitally free (at the moment the Reiss-Engelhorn Museums have a different view as was apparent in the discussion “Willing to share?” of the mainzed - Mainzer Zentrums für Geistes- und Kulturwissenschaften (Mainz Centre for Humanities and Cultural Sciences), see dpa report[17]).
 
Without doubt it is annoying when third parties use public investments for their own revenues without providing a return on investment. These problems are exposed under the headings “Privatisation of profits, socialisation of losses” and “Jumping on the digital bandwagon”. But first of all it is questionable whether the overall economic benefit was taken into account from this point of view and, secondly, whether third parties should be prevented from making profits through commercial use at all costs. This is all the more so since when, in the best case, they can only break even when revenues and costs for invoicing, assertion of rights, administration, personnel, infrastructure are compared, hence the costs for generating revenues are as high as these themselves. A study on remuneration, such as that which the BMI (German Federal Ministry of the Interior) has compiled in respect of making administrative data available against payment of a fee, could provide clarity here as to whether commercial marketing is worthwhile. This was not the case for administrative data, since that time, therefore, they are made available free of charge.[18]
 
The re-monopolisation of public domain works in digital space only makes sense, if at all, there where profits can be made through this. When marketing infrastructures refinance themselves in the best case, it is politically questionable, when this “value added” within the institution is at the expense of the free availability of public domain cultural assets. To be more precise, is it really part of a museum’s tasks to ensure that commercial users and digital free riders may not make profits at all from digital offerings which have emerged from public funds? Not really! And this can hardly be guaranteed with global offerings and territorial copyright.

Recommendations at European level: Sharing is caring

The European Commission has a clear perception of digitisation and online access to cultural materials and their digital storage and recommends not only access to cultural achievements to its member states, but also improving their potential for re-use.[19]

This recommendation is repeated in the concluding report on the recommendations and particularly commends free offerings, such as those of the Rijksmuseum in Amsterdam or of the Kunst- und Gewerbemuseum (Museum of Arts and Crafts) in Hamburg.[20] 

Public Sector Information Directive and Informationsweiterverwendungsgesetz

The recommendations of the European Commission repeatedly refer to the so-called Public Sector Information (PSI) Directive (Directive 2013/37/EU)[21], which allows for more comprehensive possibilities to re-use public cultural material, and assumes that documents created by public bodies in the member states will constitute a comprehensive, diverse and valuable pool of resources which can benefit the knowledge economy (see Recital 1 of the Directive).
 
“It is especially [...] libraries, museums and archives which hold a significant amount of valuable public sector information resources, in particular since digitisation projects have multiplied the amount of digital public domain material. These cultural heritage collections and related metadata are a potential base for digital content products and services and have a huge potential for innovative re-use in sectors such as learning and tourism.” (Recital 15 of the Directive)
 
The PSI Directive was implemented in the Informationsweiterverwendungsgesetz (IWG) (Federal Act on the Re-use of Public Sector Information) in Germany[22], which has included cultural heritage institutions since 2016. Nevertheless it does not provide sufficient clarity with regard to the question whether and how cultural heritage institutions have to share digital reprographs of public domain works. First of all, the IWG does not create a right of access. This must be derived from other laws. Secondly, the cultural heritage institutions are only compelled to permit re-use in relation to public domain content. If, however, rights emerge from the digital reprographs of public domain works, they can, on the other hand, decide whether and under what conditions they will permit re-use.[23] For the IWG does not regulate (and can also not undertake this proprietary arrangement) that physical public domain works are still free after digitisation. And it omits to regulate that then when rights emerge from a digital 1:1 image of a public domain work, the digital work is to be made available to be re-used freely.

The rules of play must be determined by politicians

At this point the politicians are needed! The cultural heritage institutions cannot be left alone to determine the overall picture. The digital strategies of museums, archives and collections must (be able to) refer to rules of play which correspond to the democratic will. This means they require clear guidelines set by policy-makers.
 
These should, where they have the power to do so, command the institutions to leave public domain material, also in digital form, in the public domain. Otherwise “Open GLAM” (acronym for galleries, libraries, archives, museums), that is, openness for cultural heritage institutions will remain only lip service in the digital area. The Federation and the regional states could perhaps, in their role as those responsible for certain institutions, make use of their general right to give instructions or make the allocation of digitisation resources dependent on the condition of as much freedom of availability as possible. In this way the Deutsche Forschungsgesellschaft (DFG) (German Research Foundation) makes funding dependent on digitisation results being freely-licenced and that public domain remains in the public domain. Instructions are helpful here. Kathrin Kessen described this impressively in the Mainz discussion and referred to the DFG’s digitisation rules of practice.[24]
 
Time is of the essence for formulating guidelines and rules of play, since open data is no longer a future dream in the reality of the global internet. Germany and Europe are lagging behind.[25]

GovData and the Deutsche Digitale Bibliothek

Just as GovData provides central access to re-usable data and objects from the administrations of the Federation, regional states and local authorities, the Deutsche Digitale Bibliothek (DDB) (German Digital Library) makes this possible with reference to the cultural heritage institutions of the Federation, regional states and local authorities, and links the digital holdings of the German cultural and scientific institutions in standardised formats across all sectors. Cultural heritage institutions which cooperate with the DDB comply with political demands at European level and legislative intentions, including in particular the guidelines in the IWG, in an exemplary manner.

Conclusion

We are heading in the right direction, but there are still some steps to be taken along the way, particularly by the museums. Not only just a few, but leading institutions in the USA and Europe have led the way. [26] A study from last year, which shows the influence of “open access” on these galleries, libraries, museums and archives, concluded that fears about opening and free permission to re-use are largely unfounded and that the opportunities by far outweigh the risks. Not only the financial losses through discontinuing trading in image rights are minimal, but the administrative workload is considerably reduced and thereby capacity for the actual tasks (research, imparting knowledge) is created. Public awareness of cultural heritage institutions which have committed themselves to the concepts of “open access” and “open data” has increased significantly. This increases the market value of the institutions and makes new and open business models possible with the brand.[27]
 
Cultural heritage institutions and, in particular, the museums have to change if they wish to remain true to themselves. They must have the best-possible support from policy-makers: through clear guidelines and, of course, with resources and personnel capacities!
 
Dr. jur. Ellen Euler, LL. M.
Deputy Manager of Finances, Law and Communication
Head of Law and Public Affairs
Deutsche Digitale Bibliothek; Stiftung Preußischer Kulturbesitz
(German Digital Library; Prussian Cultural Heritage Foundation)
e.euler [at] hv.spk-berlin.de
 
Dr. phil. Anne Klammt
Manager
Mainzer Zentrum für Digitalität in den Geistes- und Kulturwissenschaften (mainzed)
(Mainz Centre for Digitality in the Humanities and Cultural Sciences)
info [at] mainzed.org
 
Oliver Rack
Founder and Initiator
IOX Institut, Open Data Rhein-Neckar
info [at] oliverrack.eu
 


[1] The Mainzer Zentrum für Digitalität in den Geistes- und Kulturwissenschaften, mainzed, an open network to pool digital expertise in the different institutions at the science location Mainz, issued an invitation to a discussion with the provocative title “Bereit zu teilen?” (Willing to share?) at the end of January. Based on four leading questions, eight experts ( http://web.rgzm.de/fileadmin/Gruppen/Vortr%C3%A4ge/mainzed_PM_mainzedZWEI17.pdf) examined whether and how far cultural heritage institutions can, and wish to, share their holdings in digital space.
[3] Felix Stalder, Kultur der Digitalität. (Culture of Digitality) edition suhrkamp 2679 (Berlin 2016).
[4] also Roland Nachtigäller, Gebt endlich die Bilder frei! (Release the images at long last!), on the Marta Herford Blog: http://marta-blog.de/gebt-endlich-die-bilder-frei-teil-2/
[5]  Wolfgang Ullrich, Bildwendungen: http://www.pop-zeitschrift.de/2016/11/29/social-media-novembervon-wolfgang-ullrich29-11-2016/ (last update 21.02.2017).
[7] An dieser Stelle wird aufgrund der möglichst engen Abbildung der juristischen Texte allein die männliche Form genutzt, dabei aber alle weiteren Geschlechteridentitäten mitgesprochen.
[8] The concept “public domain” is summarised: https://de.wikipedia.org/wiki/Gemeinfreiheit.
[10] Robert Nachtigäller, Gebt endlich die Bildrechte frei - Part 1. Marta Blog, 08.02.2017 ( http://marta-blog.de/gebt-endlich-die-bilder-frei-teil-1/).
[11] On the question of how the legal framework conditions must be constituted so that the cultural heritage institutions can adequately fulfil their tasks in the digital and networked 21st century, see also: Euler http://intr2dok.vifa-recht.de/receive/mir_mods_00000660.
[13] Ellen Euler, Wie gemeinfrei sind gemeinfreie Werke: http://s522348684.online.de/wp-content/uploads/2017/02/Recht-am-Bild-der-eigenen-Sache.pdf (last update: 21.02.2017). Answering “what copyright restrictions apply?” requires understanding whether the original object is a protected copyrighted Work, whether the photograph of the object created a new Work with a separate set of rights, and whether the digital reproduction of that photograph created yet another Work with separate rights. “slavish” reproductions, i.e. photographs may add a new creative expression and are separately copyrightable.
[16] Carl Christian Müller, Zur urheberrechtlichen Schutzfähigkeit von Reproduktions-Fotografien. Gestaltungsspielräume für Museen bei der Auswertung ihrer fotografischen Arbeitsergebnisse.(On the copyright protectability of reproduction photographs. Design leeway for museums on evaluating their photographic work results.)Kulturbetrieb 3, 2015, 1 f. ( goo.gl/SkgD0K).
[17] see note 3.
[25] See note 8.
[27] Effie Kapsalis, The Impact of Open Access on Galleries, Libraries, Museums & Archives. Smithsonian Emerging Leaders Programme, April 2016 : https://siarchives.si.edu/sites/default/files/pdfs/2016_03_10_OpenCollections_Public.pdf (letzter Aufruf: 21.02.2017).