Introduction to Display At Your Own Risk: An experimental exhibition of digital cultural heritage
Andrea Wallace, CREATe, University of Glasgow, and Ronan Deazley, Queen’s University Belfast
Andrea Wallace and Ronan Deazley, Introduction, in Andrea Wallace and Ronan Deazley, eds, Display At Your Own Risk: An experimental exhibition of digital cultural heritage, 2016.
In this digital age, it seems it has become inevitable that a cultural institution must maintain an online collection as part of its core function, pursuant to its public mission – or, at least, this is what the public expects. Behind the scenes, however, taking on this task is overwhelmingly and painstakingly complex. Decisions must be made about funding and resource allocation, which material objects to prioritize for digitization, what type of format and how many digital surrogates should be made, how to catalogue and manage the digital surrogates and their metadata, and what format and quality of surrogate to make available online. Many efforts to digitize collections are tempered (perhaps hampered) by copyright considerations, contracts, or donor restrictions, all of which must be interpreted in accordance with the law of the nation in which the cultural institution sits.
It is no wonder that digitization occurs on a case-by-case basis according to each cultural institution’s unique needs. Yet, the systemic lack of standardization in digitization efforts and online access has become increasingly apparent. This can be seen by examining the variety of digital cultural heritage currently available on the internet, as well as the various forms of access extended to the digital surrogates created by cultural institutions. More and more, cultural institutions are turning to website terms of use to inform online users of conditions regarding access and reuse of digital surrogates –terms of use that are specific to each cultural institution’s needs.
Cultural institutions are subject to the laws of their host nations, which are typically incorporated into (although sometimes disregarded by) the institution’s online terms of use. Where the policy is located, what it is titled, and how it is phrased varies from website to website. What impact do these variables have? Do these terms of use have any legal effect? Are online visitors from other nations bound by these terms and conditions? How might that online visitor know?
In examining these issues, this research-led exhibition seeks to shed some light on an area where transparency is often elusive, whether intentionally or not. And what better way to explore them than becoming actively entrenched in them oneself?
Consequently, this research project proceeds by taking on both the role of cultural institution and user, in full consideration of the role that law has to play in this domain. Display At Your Own Risk is the natural result of this experiment.
THE ROLE OF THE CULTURAL INSTITUTION
For several decades and more, cultural institutions have made reproductions of public domain works in their collection, claimed copyright, and licensed those copies for use and reuse. More recently, the internet has made the practice both more efficient and more complicated. Now, instead of contacting an institution to arrange for a physical copy of a material object’s surrogate, the public can access the institution’s collection online, browse through and request copies of the digital surrogate from any location in the world. Necessarily, this means that in addition to managing physical copies, such as transparencies and slides, cultural institutions must also maintain digital copies of various sizes and formats, keeping stride with changes in technology all the while.
But, at the heart of this process lies the task of determining what should be the appropriate institutional policy. This requires an assessment of which pieces from the digital collection to make available online, the relevant or appropriate conditions for those selections, and how to communicate those conditions to the user. Indeed, making digital surrogates available online is one thing; making users aware of how to reuse them (or not) is another. This is especially true considering the ease with which digital surrogates can be downloaded and disseminated online, which can often frustrate the exploitation of the economic rights granted by copyright in these works (if at all).
Cultural institutions approach control and access in various ways. Moreover, even within an institution, practices can vary depending on the resolution, format, and restrictions from one digital surrogate to the next. Some opt to make digital surrogates of public domain works fully available online and expressly disclaim any copyright. Many institutions advocate that since the material object is in the public domain, so too should be its digital surrogate. Others disclaim a copyright, but turn to contract law to restrict or permit certain uses through online terms and conditions.
Most institutions claim copyright over the digital surrogate, whether outright via a copyright notification or within the digital surrogate’s metadata. Some promote a robust open access policy of giving everything away for any purpose (including commercial use) but then seem to unintentionally – or perhaps unthinkingly – undermine that policy by digitally watermarking their surrogates with copyright notifications. Others are more forthcoming about their copyright claims, but will frequently permit limited reuse of surrogates for personal, educational, and noncommercial purposes.
In many cases, when copyright is claimed, the institution takes additional steps to reinforce the copyright through the language deployed in the institution’s terms and conditions, sometimes expressly prohibiting reuse in any form. In others, the apparent conflict between institutional policies and available legal exceptions can result in genuine confusion as to what, if any, reuse is permitted at all. The release of certain content making use of a Creative Commons licence can add yet another layer of complexity when assessing ownership, attribution, and permitted use.
In short, fully understanding what type of use is permitted and any potential risk involved requires a level of fluency in contract, copyright, and private international law that is foreign to the vast majority of online users.
THE ROLE OF LAW
Despite efforts to enable access, prevailing legal uncertainties inevitably drive a wedge between initial access-driven goals and formal institutional policy as conveyed to (and subsequently interpreted by) the public at large.
There is something inherently counterintuitive about digitizing a work of art that is in the public domain to enable online access to that work, while at the same time claiming copyright in the digital surrogate such that simply viewing the work online may give rise to anxiety about copyright infringement. Do these digital surrogates even qualify for copyright protection? Whether copyright applies will depend on a number of factors such as whether the material object is a painting or a sculpture, what skill and effort went into making the digital surrogate, whether the surrogate exhibits any perceived creativity or originality in itself, the form of technology used, and the jurisdiction in which the cultural institution sits. It is not clear, for example, whether a digital surrogate taken today would satisfy the requirement in European copyright law that the work is ‘the author’s own intellectual creation’.
Famously, in The Bridgeman Art Library Ltd v Corel Corp (1999) a New York court held that a photographic reproduction of a painting in the public domain was not an ‘original’ work and so not protected by copyright, a decision that sent shock waves through the GLAM sector at the time. Nearly 20 years later, however, whatever legal significance the Bridgeman decision may have had, its practical impact on the policy and claims that cultural institutions continue to make in the US (or, indeed, even in the State of New York) appears to be limited. So, how should institutions and users navigate these issues concerning originality, photography, and copyright? Copyright exists to reward creativity and originality, providing creators with an economic incentive to make new works. But when the true value of the digital surrogate lies in the material object it captures, what is the best way forward?
If these digital surrogates are protected by copyright, they are also subject to any copyright exceptions provided for in the country where protection is claimed. However, these exceptions vary from jurisdiction to jurisdiction, and are typically vulnerable to contractual override. Indeed, cultural institutions often choose to bolster their copyright claims through online terms and conditions, although the intended relationship between these terms of use and prevailing exceptions is not always made explicit. On this point, the way in which terms of use are presented to the public is an important consideration.
Usage policies are usually drafted in dense legalese, rather than in plain language that facilitates a more open approach. In addition, few cultural institutions translate terms into more than one language on their websites, presenting language barriers before their global online audiences. Even when choice of language is not an issue, understanding whether terms and conditions are binding is a difficult task for the user. At first glance, most terms of use appear to bind, creating a contract of adhesion between the user and the cultural institution. However, whether these terms of use are intended by the institution to impose contractual relations upon a user visiting the website is not always clear; similarly, whatever the institutional intention, whether a binding contract is actually created is something that can only be determined on a case-by-case and jurisdiction-by-jurisdiction basis. Certainly, not all terms of use would hold up in court, and the challenge for the non-expert user in interpreting the scope, impact, and relevance of an institution’s stated terms and conditions should not be underestimated. And, even when the genuine intention underlying these policies is concerned with making collections more accessible and available, this intent is often saturated in language outlining what a user is prohibited from doing rather than what is permitted.
Ultimately, access-driven policies are a product of systemic tensions and uncertainty in copyright and contact law, and in the interplay between these two bodies of law, and this can result in misconnections between users and cultural institutions. As a consequence, the gap in public understanding of ‘access’ as defined and extended by institutional policies is having an appreciable and measurable effect on the dissemination and reuse of digital cultural heritage made available online.
THE ROLE OF THE USER
How a user might understand control and access is very different from the approach taken by cultural institutions. Indeed, the user’s expectations and experience of access is often at odds with the institution’s intention or aspiration. For example, ambitions to make digital collections available to the public are typically mediated through a matrix of institutional policy statements regarding the prevailing legal framework and educational missions. Often this patchwork of policies can be found in a number of places on each institution’s website, under various titles and subpages, with the relevant information sometimes scattered among as many as eight or nine different webpages.
Just because a digital surrogate can be viewed online does not, of course, imply a user is permitted to right-click and download it. In some cases, cultural institutions may take substantial steps to prevent users from downloading digital surrogates through the use of certain interfaces, like Adobe Flash, which disable the right-click and download function. Others might provide thumbnails online, or maintain no online collections at all, while hosting a separate image library website that offers images for sale and requires registration for access. By contrast, some institutions create their own unique interface that facilitates high-resolution image downloads, along with citation information and metadata for any and all types of use; in these instances, institutions tend to make great effort to inform a user of what is permitted in relation to that specific digital surrogate being viewed online. In general, though, the majority of cultural institutions deploy wide-sweeping policies that tend to conflate all types of online content and disguise permissions regarding access and reuse with intimidating and restrictive language.
Online audiences expect efficiency and ease when it comes to searching and using images. Consequently, the user may turn to third-party websites like Wikipedia or Flickr Commons to find useable and decent quality digital surrogates when the purpose for which it is being used is flexible or fungible. Many of the cultural institutions featured in this exhibition make large contributions to these sites, yet release a different (and often subpar) digital surrogate through their own website. Google enables image searches based on usage permissions, cutting the host institution or third-party website out of the process entirely. With the potential for such instant gratification at a user’s fingertips, few cultural institutions can hope to compete. As a result, which host institution is trusted with the care of underlying material object in the digital surrogate becomes less relevant to the user, an effect compounded by the fact that the cultural institution no longer becomes associated as the ‘go-to’ provider for the digital surrogates in its own collection.
User-oriented metadata represents one way to maintain (or reclaim) relevance. By embedding certain information in the metadata of the digital surrogate, a cultural institution can protect the educational context of the original work, communicate any claim to copyright in its digital surrogate, and ensure the surrogate may be traced back to the institution as the material object’s steward. After all, it is in the cultural institution’s interest for users to associate the host institution with the material object and its digital surrogate, rather than with a third party. Nevertheless, differences in metadata practices reveal most cultural institutions have failed to take advantage of the benefits of metadata – or at least have only begun to do so in recent years. By examining metadata practices among digital surrogates made by the same cultural institution, one can infer such things as changes in the use of certain technologies for digitization, or shifts in the institution’s policies about use and reuse. Indeed, metadata has its own independent relevance to users for academic research in digital cultural heritage and information technologies. When cultural institutions overlook the importance of their metadata, this impacts not only the institution’s profile and presence online but potential future research in these fields also.
THE ROLE OF DISPLAY AT YOUR OWN RISK
One of the principal objectives of this exhibition is to make transparent these points of genuine confusion and consider whether they might have a chilling effect on engagement and use. As previously mentioned, this objective is explored from the perspective of both the user and the cultural institution. By initially approaching the issue from a user’s perspective, the exhibition examines the various forms of access granted by cultural institutions to digital surrogates of public domain works, making use of these digital surrogates according to those permissions or in accordance with exceptions provided by copyright law.
In the United Kingdom, where this project is based, general exceptions permit the use of work for noncommercial research and private study, for criticism or review, quotation, or reporting current events. The scope of each exception is defined differently, and the limits of the exceptions are not always clear. The principal exception we rely on for this project concerns copyright for the purpose of noncommercial research (Copyright, Designs and Patents Act 1988, s.29). It is our opinion that the use of these digital surrogates for the purposes of the exhibition (as well as for this publication) is permitted according to the research exception. Naturally, extensive acknowledgment and attribution is paid to the original artist and the host cultural institution in accordance with the requirements of the exception.
The pieces curated for the exhibition have been taken from the selection of works highlighted by each institution’s website. As most institutions claim copyright over the photographs they take of works in their collection, the institutions themselves have been credited as the author and, in some cases, copyright owner of each piece. Information about how the institution licenses the use of these digital surrogates – including information about pricing where relevant – is also included within the exhibition.
Works held by cultural institutions exist in a unique, singular form, and cultural institutions act as stewards to guarantee their safekeeping. Consequently, access to the material object is restricted both for the purposes of preservation and to ensure it is available for the appreciation of future generations. Yet, digitization enables us to create a surrogate for the material object in a way that ensures its value may be appreciated by a global audience. Moreover, these digital surrogates can be of such high quality that hairline cracks in the paint on a canvas can be appreciated in extraordinary detail. But, not all digital surrogates are equal in this respect; indeed, their nature and quality can vary dramatically. For this reason we created our own material surrogates of each digital surrogate. That is, each digital surrogate made available on the institution’s website was printed to the original dimensions of the underlying material object, creating a new material surrogate for that material object. By printing the digital surrogate to the work’s original dimensions the exhibition reveals the often dramatic impact the prism of digitization can have on the public’s engagement with the material object in an institution’s care.
After the material surrogates were created, they were then digitized, catalogued, and made available online as an open source exhibition. By approaching this process from the cultural institution’s perspective, the exhibition exposes to public view the complexity of the innumerable issues confronted by cultural institutions during digitization and digital asset management.
In doing so, this exhibition puts forth its own policies for use, crafted according to the perceived or possible risk in the use of the underlying cultural institution’s digital surrogate. The open source file is presented in a way that permits users to curate their own exhibitions as desired. Digital surrogates are organized according to categories of risk informed by any copyright claim over the digital surrogate, the copyright law relevant to the institution’s jurisdiction, and the contractual terms and conditions set out the institution’s website (see above, ‘Notes to the User’). When there is little to no risk in making use of the digital surrogate without express permission, the print files are made available, resized to the public domain work’s original dimensions. When risk may be higher, instructions for how to access, resize, and print the digital surrogate are included in place of the print file. Citation information and terms of use are included for each work, as specified by the cultural institution. The exhibition file also contains the research data underpinning this project as an additional resource for users.
The process of digitizing the exhibition – from capture to completion – provided important insights into the same process by which cultural institutions make their collections available online. At each step, issues revealed themselves regarding how to photograph the work, how to create and manage metadata, what formats to make the works available online, how to organize the exhibition file, how to create our own metadata, and how to display online the material surrogates in a way that enabled users to see and appreciate their quality. With each decision we made carefully calibrated choices balancing the approach a cultural institution might take and the expectations for reuse that a user might have.
Throughout the process, the exhibition looked to several cultural institutions’ practices for guidance and inspiration. Digital asset management, download information, and reproduction instructions were inspired by the systems designed by the National Gallery of Art in Washington DC and the Davison Art Center at Wesleyan University. Citation formats and text files were informed by the Yale Center for British Art. The structure, format, and layout of the exhibition catalogue was inspired by publications made freely available online by the Getty Institute. The typeface used for all exhibition materials is Cooper Hewitt, designed by Chester Jenkins and named for the Cooper Hewitt museum. Cooper Hewitt is an open source typeface available for download on the museum’s website and was created as part of the museum’s open-source programme. Even the decision to release the research data was made in response to cultural institutions’ efforts to release their own data and content for researchers. In short, the final form of the exhibition is, in a very real way, a testament to the network of cultural institutions pushing forward the open access initiative every day.
CONCLUSION
It is important to acknowledge that cultural institutions regularly manage risk in their own digitization practices. First, they typically undertake a rigorous risk assessment analysis before determining which works in their collections may be digitized and made available online. Depending on the nature of the content, its copyright status, and the jurisdiction in which the institution sits, the very act of displaying digital surrogates online can incur risk. For example, many jurisdictions have carved out exceptions for heritage institutions for the purposes of preservation activity; but when dealing with digital surrogates of works that are still in copyright only sometimes do exceptions enable making these surrogates available online. Moreover, copyright exceptions do not transcend national borders: they apply on a country-by-country basis. As such, even where an institution can rely upon a national exception to make work available online, this does not necessarily insulate them from an allegation of infringement elsewhere in the world. Second, cultural institutions also perceive risk in releasing their content online, in that the works might become detached from their institutional setting, co-opted by others without permission, used in inappropriate ways, and so on. Claiming copyright over this content offers a strategy for addressing this risk, a mechanism for protecting the integrity of the original work and its informational and institutional context.
In light of this, it is important to recognize and champion the effort and commitment of cultural institutions in making these digital surrogates available online; theirs is a noble undertaking driven by an unswerving commitment to the public interest, and often in spite of the risks inherent in navigating the uncertain demands of national and international copyright law. As such, this exhibition does not put forward any opinion on the state of digital cultural heritage or access practices; rather, it translates the information and content already made available by cultural institutions in a way that hopefully makes the issues addressed by this project more tangible and comprehensible, by applying them in practice and presenting them in a measurable and comparable way.
That the exhibition is titled Display At Your Own Risk is meant to be descriptive, rather than provocative. The title signals to users that risk is (and should be) a consideration in use and display, and it calls attention to respecting institutional policies regardless of whether users agree with them. Accordingly, the project attempts to reduce the gap between a user’s understanding of the public domain and a cultural institution’s approach to making digital surrogates available online. Whether this gap can ever be meaningfully closed will always depend on the matrix of legal and institutional norms and practices discussed above, and – more importantly – on how cultural institutions choose to interpret, translate and explain those norms and practices to their users, both national and international.