Exhibition Methodology
Andrea Wallace

Andrea Wallace, Exhibition Methodology, in Andrea Wallace and Ronan Deazley, eds, Display At Your Own Risk: An experimental exhibition of digital cultural heritage, 2016.

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In curating this exhibition, it was important to approach the task from a user’s perspective, meaning how an online user might go about finding a digital surrogate and deal with the terms of use articulated on an institution’s website. Accordingly, I chose to use only digital surrogates made available by the institution through its own website. This excluded contributions of digital surrogates to online organizations, such as Wikimedia Commons, Europeana, Flickr Commons, and Google Art Project. In theory, when a cultural institution contributes surrogates to organizations like Wikimedia Commons, one would expect the institution also to make that surrogate available on its own website, under the same permissions; but that is not always the case. As such, the decision was made to collect images only from institutional websites in order to facilitate the visualization and comparison of these practices.

SAMPLING

To start, I assembled a list of cultural institutions for investigation. I began by using Art Newspaper’s 2014 data on exhibition attendance,^[1] which Wikipedia had compiled into a convenient list of the 100 ‘most visited art museums in the world’.^[2] Because the aim of the project was to gather as wide a sample of practices as possible, I made additions to the list in areas of underrepresentation. Such areas included: institutions known to have online collections and open policies; institutions from the archive and library sectors; institutions of importance from underrepresented jurisdictions; and institutions in jurisdictions known to include certain copyright exceptions. My initial sample included 130 institutions from 37 countries.

Next, I visited each cultural institution’s website, starting with the homepage and working my way through the site to find the institution’s use policy. I tracked how many steps (that is, clicks of the mouse) it took to locate the relevant policy regarding reuse, what the policy was called, how many languages it was translated into, whether the institution charged for commercial use, whether a copyright was disclaimed, explicit or implied, and so on.

During this phase, institutions were removed from the sample for various reasons. Some make no digital surrogates available online. In several instances, a language barrier prevented meaningful access to the website. Surprisingly, more than 20 websites had no usage policy whatsoever. Not surprisingly, many expressly prohibited almost all types of use other than viewing the image on the website; some of these institutions were included in the final sample as it seemed important to explore whether any connection existed between more restrictive policies and the quality of digital surrogates made available online. Finally, a number of institutions were omitted as their inclusion was essentially redundant for the purposes of the project: though a policy permitted use, and I would have liked to include them all, I had already selected another institution representing that jurisdiction or risk threshold. I was also constrained by budget considerations, which limited the total number of digital surrogates that could be analyzed and reproduced. The final sample included 100 digital surrogates from 52 institutions in 26 countries.

CURATING

Then came the fun part: picking the images. Initially, selection was bounded by two criteria. First, all of the works had to be in the public domain: this meant, for most relevant jurisdictions, the author must have died before 1946. Second, the original works had to be no wider than 44 inches; this was, essentially, a print capacity limitation, since digital images would be printed to the dimensions of the original artwork.

Next, the curatorial process began. I revisited each website, downloading objectively recognizable digital surrogates from the online collections. Where possible, I selected digital surrogates of works advertised by the institution as a particular highlight of its collection. Where institutions did not include a ‘highlights’ section on their website, I focused on selecting works that made important contributions to cultural heritage or had special relevance to the institution’s national culture.

With each selection, I tried to choose a digital surrogate that represented an artist, gender, subject matter, culture, medium, technique – or even size dimension – not already represented. I was especially sensitive to representing various values of modern culture in the selection process. Due to the history of collecting, how works have been valued and esteemed over time, and considering all selected artists had died before 1946, most of the works that qualified for selection were by white male artists of European and Western descent. Despite this, I made careful selections in an attempt to redress this predominance. Where possible, I chose female artists (or, at least in one case, a female artist as the painting’s subject) or iconic themes of certain races and cultures that were overwhelmingly underrepresented among collections.

Issues surrounding copyright and knowledge exchange motivated a few selections, such as surrogates containing scientific content, maps, and similar information sources (although many became unreadable once resized to their original dimensions). Other surrogates were chosen specifically because they are by unknown authors or are objects of cultural property never intended for copyright protection, such as antiquities or embroidery. Indeed, many of the works selected were created before the existence of copyright as we know it today.

Keeping in mind that many users might have limited financial or printing capabilities, digital surrogates for smaller material objects were especially attractive. In some cases, more than one digital surrogate from the same institution was selected to see how each asset might print differently, as well as to examine any differences in digital management. In other cases, when more than one appropriate digital surrogate was available, the choice often came down to my own subjective preferences – something true to the process of curation.

I also chose to exclude digital surrogates made available on any institution’s commercial image website service, although in two cases I made an exception as the main website expressly directed me to the commercial image website to access the surrogate (the British Library and The National Archives).

Typically, an institution’s commercial website hosts one form of digital surrogate while the main website offers another, and often on different terms and conditions. This is well illustrated by Everett Millais’s Ophelia made available by Tate. This exhibition uses the digital surrogate made available on Tate’s main website, which features the painting’s frame (Fig. 1); on the commercial website it does not (Fig. 2).^[3] The ‘unframed’ surrogate, displaying a clear watermark and copyright notification as well as the viewer’s identifying information and date of access, is available only through the commercial website, Tate Images.^[4] As such, the commercial website’s copyright policy^[5] applies to the unframed preview image while the main website’s policy^[6] applies to the digital surrogate used by this exhibition. In addition, once an order is placed through the commercial service, a higher quality image is delivered to the user. This version is subsequently licensed through and controlled by the terms of a separate purchase agreement. Accordingly, Tate makes use of three different policy systems depending on the website, image, and intended use.

It is also important to note that commercial websites are often populated with different digital surrogates. On 30 October, when I downloaded the image used in the exhibition, Tate Images provided a preview image true to modern digitization standards: the work is shot on a black background with color and grayscale cards along the side to assist with color balance and correction for reuse (Fig. 2, previous page). More recently, I returned to the commercial website to discover it had updated Ophelia to a new version with the digitization standard information removed (Fig. 3). It seems safe to assume the digitization standard high-resolution image is delivered to the user following a purchase but, given the commercial previews are watermarked, the rationale for compromising on the quality of the preview image is unclear. Whatever the reason, this ever expanding pool of digital Ophelias arguably dilutes the relevance and integrity of the most faithful reproduction of the material object made available by the institution itself.

Finally, I made a point of concluding all research by end of December 2015. Some cultural institutions’ policies have since changed. For example, the Art Institute of Chicago has revised its terms of use to more prominently feature and incorporate ‘fair use’ purposes within its copyright policy. The surrogates in the exhibition were downloaded before this policy was in place, and so are governed by the contract (if the contract binds) that existed between the Art Institute of Chicago (the provider) and myself (the user) at the time of agreement and download. (Downloads taking place subsequent to the policy change are, of course, tethered to the terms of the revised policy.)

In fact, Tate’s policy regarding the use of the Millais painting has also changed. When I downloaded the image, Ophelia was available to license, as is visible in the bottom left-hand corner of Figure 4. Upon clicking ‘License this image’ the user is directed to Ophelia’s webpage on Tate Images.

Today, the terms are different. ‘License this image’ is visible as it was in October but now the website also reads: ‘Image released under Creative Commons CC-BY-NC-ND (3.0 Unported)’ (Fig. 5). On clicking the hyperlink, the user is directed to the ‘Creative Commons licences and Tate’ policy.^[7] The unframed version of Ophelia is still available to license through Tate Images, but Tate now expressly permits use of the main website’s framed version in accordance with a CC BY-NC-ND licence.

This example illustrates just how quickly institutional policies can change, allowing greater (or more restrictive) access and use of digital collections, and often in ways that are not readily perceptible to the casual user. With this in mind, the decision was made to conduct the curation process within a three-week period in an effort to produce a controlled sample of digital surrogates and respective policies. All digital surrogates featured in the exhibition are bound to the terms of use that existed at the time of download, prior to 1 January 2016. With the nature of digital cultural heritage in a state of constant flux, it seems appropriate that the exhibition itself serves to archive a snapshot of digital surrogates at a particular moment in time.

ANALYZING

ONLINE POLICIES

One insight revealed by the research process is the lack of standardized taxonomies used by cultural institutions to signal where copyright and reuse information is contained on their website. Of the 130 websites reviewed, policies are presented under a variety of names including: Impressum; Copyright; Legal Notice; Rights and Reproduction; Rights of Use; Imprint; Website Policy; Contact; Conditions; FAQ; Disclaimer Copyrights (which ironically included no such disclaim of copyright); Open Access; Copyright and Reproductions; Intellectual Property Rights Policy; Terms of Use; Terms and Conditions; General terms of use for photo material; Request photograph; User Agreement; Image Reproductions and Copyright; Copyright, permissions and photography; Disclaimer; Image Usage Policy; About this site; and Using Images, to name a few.

The most common policy name is simply ‘Copyright’ used by 16 institutions, followed by ‘Terms and Conditions’ and ‘Terms of use’ each used by 8 institutions. Next come ‘Rights and Reproduction(s)’ and ‘Legal notice’ each used by 4 institutions, then ‘Frequently asked questions’ used by 3. Of the remaining policy names, only ‘Terms,’ ‘Disclaimer’ and ‘Legal information’ share a title common to another institution. The remaining policies are each uniquely titled.

The project also considered how a user might recognize and understand whether proprietary interests are being claimed by the institution in the digital surrogate (if at all). In almost every website, the © symbol appears in the footer, but this notification is not always used in reference to specific content within the website. Instead, its primary purpose is to indicate the website itself is protected by copyright. Any restrictions specific to online content are typically contained in policies concerning terms of use, where it is less common for cultural institutions to assert copyright by a clear © notification.

Regardless of what the policy is called, hyperlinks to institutions’ policies are most commonly located in the homepage footer. In less obvious cases, it sometimes takes five or more ‘clicks’ to root out the relevant information. For example, a beautifully drafted open policy, one based on Europeana’s recommendations for public domain works,^[8] can be found on the MKG Hamburg website. The policy makes clear that digital reproductions of public domain works are also in the public domain. But it does much more than this. It offers the public a compelling and clearly written explanation of the value of the public domain and the reasons for protecting it, as well as guidance on how to respect the original work and its educational context when sharing knowledge. One problem with the policy is that it is hidden amongst the text of the institution’s ‘Contact’ page, placed just below the contact information for the MKG’s legal counsel.^[9] Another is that it omits from Europeana’s recommendations the following phrase: ‘This usage guide is based on goodwill. It is not a legal contract. We ask that you respect it.’

Compare this to the way the National Gallery of Denmark (SMK) communicates its policy to the public. On the homepage footer is the hyperlink ‘Read about use of images and text’. Just one click brings the user to a policy that is also based on Europeana’s guidelines, but one that positively invites the user to enjoy and play with the museum’s digital collection: ‘Images in the Public Domain are like tools in a toolbox – you can use them for all manners of purposes. Feel free to let your imagination run wild.’^[10] Moreover, SMK’s terms and conditions expressly inform the user of its non-binding status: ‘The guidelines are based on goodwill. They are not legally binding, but we urge you to please respect them.’ The policy, however, employs stronger language than that used by Europeana, urging, rather than asking, the public to respect the guidelines. It is also divided into two sub-policies, one regarding ‘Use of Images and Text’ and the other for ‘Free Download of Artworks.’ On clicking the hyperlink in the homepage footer, the user is directed to the ‘Use of Images and Text’ policy; yet, the information highlighted by this paragraph can only be found in the ‘Free Download of Artworks’ policy.

Some policies are not only tucked away in hidden corners of an institution’s website, but are also framed in very counterintuitive ways. For instance, one would think, when visiting the Art Institute of Chicago’s website, that the relevant policy could be found by clicking ‘Terms’ in the footer,^[11] which takes the user to the ‘Copyright’ page,^[12] but this provides no more than the following:

© 2016 The Art Institute of Chicago, 111 South Michigan Avenue, Chicago, Illinois, 60603-6404
Terms and Conditions | All text and images on this site are protected by U.S. and international copyright laws. Unauthorized use is prohibited.

The actual policy regarding use and reuse of digital surrogates is accessible only by clicking on the ‘Terms and Conditions’ hyperlink and scrolling halfway down the page.^[13]

An even more confusing situation exists on the National Library of Wales website.^[14] The Library expressly disclaims copyright in digital reproductions of public domain works, stating that ‘[a]ccess to reproductions shall be subject to the same rights as would apply to the work in its original format.’ Located in the website footer is a link to the Library’s ‘Copyright’ page, which informs the public of the Library’s own copyright obligations, its use of Creative Commons licences, and who to contact for high resolution images.^[15] However, the copyright disclaimer is not housed on the ‘Copyright’ page but within the Library’s ‘Intellectual Property Rights Policy’, under the heading ‘4.5 Digital collections’.^[16] And even if the policy is located, when browsing through the collections online the user is confronted with copyright notifications like ‘© LlGC / NLW 2010’ beneath each digital surrogate, including the one selected for this exhibition.^[17] In other words, while the Library disclaims copyright in the surrogates it creates, the user is nevertheless routinely presented with information and statements that appear to undermine the institution’s formal policy.

Some terms and conditions are not located on the institution’s website at all, such as the National Gallery of Ireland’s copyright policy. To find that policy, a user must visit ‘About Us’ and then ‘Reports, Policies & Procurement’^[18] to identify the relevant link to ‘Website Terms of Use’. But even then, the terms are not included on the general website: clicking the link activates a direct download of the relevant terms and conditions to the user’s computer. The National Museum of Art, Architecture and Design in Oslo, and the Rijksmuseum in Amsterdam, also follow this practice instead of hosting their policies online for all to read.

The Rijksmuseum’s system, however, is the most tricky of the three. To download an image of a public domain work directly from the Rijksmuseum website, a user must first create a Rijksstudio account. No general terms of use are presented to the user during the registration process. Once registered, medium-resolution images can be downloaded directly through the Rijksstudio. For high-resolution images, like the one selected for this exhibition, the user must submit a Photoservice request.^[19] The image is then delivered via email and includes a hyperlink to ‘Terms of Use’. This webpage is also accessible via the ‘Organization’^[20] webpage, on which a hyperlink to ‘Terms’ can be found under the ‘About’ heading. On the ‘Terms’ page, under the subheading ‘Terms and conditions website,’^[21] is a hyperlink to ‘Terms and conditions governing use of the websites’. Clicking this hyperlink activates the direct download of terms governing all Rijksmuseum websites. (Phew.)

That a user can access and browse through a website without necessarily encountering a formal online policy raises the obvious question of whether these policies are enforceable. Often, general terms of use will claim to bind the user outright: that is, by merely by accessing the website the user is deemed to have consented to the terms. Whether such terms will bind the user is a matter of debate, and much will depend on the relevant law of the jurisdiction concerned. But what about when the copyright terms in question are not technically on the website? Do they apply at all? Or, even where terms are set out on the website, an institution might provide more specific instructions and guidance in a supplementary document via a direct download system, the details of which may depart from the terms as expressed on the website itself. Both the British Library and The National Archives evidence this practice. From the user’s perspective, which set of terms are the appropriate terms to follow?

This exploration of differences in taxonomies, the choice of language or © notification, and where relevant policies are located, suggests that cultural institutions aren’t exactly making it easy for the typical online user – a member of the general public who might be based anywhere in the world – to find, understand, and respect institutional policies regarding use and reuse. If the point is to claim copyright in online content (or protect the copyright of third parties in online content), shouldn’t these policies be more obvious? Even for institutions with more open policies, or who disclaim copyright in digital surrogates entirely, the impulse consistently seems to be to hide the carrot.

MATERIAL SURROGATES

Examining the printed material surrogates was fascinating. Some of the digital surrogates print to such a high quality they could be used for serious academic study, especially when considering how access to the material object is restricted. Many included information impossible to appreciate when visiting the material object in situ, as most high-quality reproductions are made with the material object removed from its frame and under much better lighting than provided in a gallery. In these cases, cracks in the pigment and brush strokes around the edge of the panel are depicted in such detail that the artist’s technique can be examined in a way that permits rigorous research.

Interacting with the material surrogates was a key aspect of this project and the exhibition. On the looming walls of the Louvre’s massive galleries, the Mona Lisa looks quite small, inciting surprise from on-lookers that such a modest painting can enjoy such enormous reputation and attention. At best, visitors can get within six feet or so of the iconic portrait and are lucky to snap a photo without catching someone else’s camera, phone, or tablet in the frame (Fig. 6). Yet, viewing the material surrogate of the Mona Lisa incited similar surprise, this time at how big the painting seemed in the context of a more personal space. Indeed, the photographer and I spent a good deal of time making sure our material surrogate had been printed to the correct dimensions of the original object (in the end, we turned to Google images: a photo of the painting being admired by John F. Kennedy provided the necessary size context and reassurance, see Fig. 7). The roles cultural institutions play in the preservation and appreciation of cultural heritage is inestimable, as is visiting the original object in the galleries, hung among its carefully curated companions. Still, reproducing the material surrogate to scale allowed a form of personal interaction with the work in a way that could never be achieved with the material object within a museum setting. These interactions with the prints failed to satiate any interest I had in viewing the original; in fact, they intensified my desire exponentially, and especially in relation to those material surrogates of exceptional quality.

Photographing these high-quality material surrogates was equally interesting. In viewing the exhibition photograph of the material surrogate, it becomes hard to tell that the underlying object is merely a print, rather than the original work itself. By contrast, when the digital surrogate took the form of a low resolution or thumbnail image, once printed to original dimensions of the material object, the images created were often so pixelated that they become intriguing objects in their own right. But, in these cases, moral rights issues also come to the fore, both in regards to the cultural institution as the author of the digital surrogate and the original artist of the underlying work. Is the resizing of the digital surrogate so transformative that it violates the moral right of integrity enjoyed by the cultural institution (if any moral right exists)? Alternatively, does the material surrogate or even the cultural institution’s low quality digital surrogate violate the artist’s moral right to the integrity of the material object (again, if any moral right exists)?

METADATA

Metadata: where do I begin?

First, let’s get technical. Different metadata can be created at different stages of digital asset creation and management. During the digitization of the work, digital cameras embed technical metadata called ‘Exif’ data into the image files (this is short for exchangeable image file format). Some Exif data is automatically generated by the camera whereas some can be preset, or overridden, by the camera operator. Once a work is digitized, additional metadata can be attached during image manipulation. Adobe Systems Inc., provides popular image editing and management software like Photoshop and Bridge, and uses an ISO data standard (originally created by Adobe) called ‘XMP’ (short for extensible metadata platform). Adobe’s XMP labelling technology allows you to track changes and embed metadata during content creation and the editing process. Adobe platforms also enable manual metadata management. Finally, ‘IPTC’ metadata (short for the schema created by the International Press and Telecommunications Council) includes Core and Extension metadata and provides fields that allow users to add descriptive data such as location, dates, names, and other identifiers. According to the IPTC, the IPTC Photo Metadata standard ‘is the most widely used standard because of its universal acceptance among photographers, distributors, news organizations, archivists, and developers.’^[22] Among the cultural institutions featured in the exhibition, I found this not to be the case.

For the purposes of this project, our Data Specialist^[23] developed a program to extract each of these datasets from the digital surrogates. Of the 100 digital surrogates analyzed, 37 digital surrogates contain no metadata at all. Of the remaining 63 that did, the most commonly used metadata is Exif, with such data embedded in 52 digital surrogates; 49 surrogates contain information in the XMP fields, but only 41 contain IPTC metadata. Some of the information is repetitive, as 35 of the 63 digital surrogates make use of all three types of metadata. Yet, much of that information is basic or minimal. Surprisingly, 65 of the 100 digital surrogates contain no rights information in the metadata. This means only 35 digital surrogates contain information communicating whether any restrictions (or not) apply to its use. Even then, many rights statements in the metadata are not consistent with what the cultural institution appears to permit via its website terms.

At times, I felt that reviewing the metadata threatened to unravel work that had already been carried out on the project, or my understanding of the relationship between institution and digital surrogate. That is, I found myself growing desperate over how to reconcile an institution’s already confusing online policy with the information contained in the metadata. For example, the digital surrogate of Audubon’s Birds of America made available by the British Library is marked as public domain on its webpage, which states ‘Usage Terms: Public Domain’ and includes a link to the Creative Commons Public Domain Mark 1.0.^[24] Not so in the metadata. There a user will find ‘© The British Library Board’ in all three forms of metadata (Exif.Image.Copyright, Xmp.dc.rights, and Iptc.Application2.Copyright). Could this be a mistake? How would a user know?

During our own digitization process, we used two different photography methods to capture the material surrogates. For the smaller works, the photographer physically held the camera so he could get up close and personal with the prints. For the larger works, the camera was mounted to and suspended from a device connected to a computer. The difference between these two techniques is apparent in the metadata. The photographer was able to manually set the metadata on the camera, which he had specified to not include copyright information in the photograph. Once connected to the computer, however, the digitization software overrode the camera settings. This generated one batch of images containing no copyright statement in the original metadata and another batch attributing copyright to the University of Glasgow. We were able to fix this when creating and managing our own metadata for the photography, but it illustrates how easily and unintentionally these issues can be complicated by technology, as well as how easy it can be for mistakes to go unnoticed. (And to be clear: we do not consider that the photographs taken for the purposes of this exhibition are protected by copyright.)

The British Library isn’t the only cultural institution with information embedded in the digital surrogate that appears to conflict with its online policy. The Los Angeles County Museum of Art (LACMA) and the Walters Art Museum both maintain policies that public domain artworks generate public domain digital surrogates.^[25] On LACMA’s website, high resolution digital surrogates are made available online and marked as ‘Public Domain’. However, included in the metadata of two of the three digital surrogates featured in the exhibition is the following text: ‘RESTRICTED: Contact the Rights and Reproductions Department at The Los Angeles County Museum of Art.’ This information is contained in both the lines for ‘Xmp.dc.rights’ and ‘Iptc.Application2.Copyright’. The third digital surrogate contains the same XMP and IPTC data in addition to the ‘Exif.Image.Copyright’ line. Similarly, in the Walters digital surrogate, the ‘Xmp.dc.rightsHolder’ line reads: ‘Walters Art Museum (Baltimore/Maryland/USA)’. Nowhere does the metadata inform the user that the surrogates are in the public domain or that permission for reuse is not required.

Another surprising meta-discovery was neatly revealed by the digital surrogates released by the Rijksmuseum. The Rijksmuseum has led the way within its sector in digitizing its collection in high resolution and making it available online for any purpose, including commercial use. Indeed, the Rijksstudio runs an annual competition awarding the best reuses of its digital surrogates with substantial cash awards. This is why I was surprised to find a copyright statement in their metadata, and not only in the digital surrogates selected for this exhibition. Whether a jpeg or tiff, every image examined from the Rijksmueum’s online collection contained a copyright statement in the metadata and indicated as such in Photoshop. In the metadata of the 2010 digital surrogate featured in this exhibition, the ‘Xmp.dc.rights’ line reads: ‘Rijksmuseum Amsterdam PO BOX 74888 1070 DN Amsterdam the Netherlands +31 206747000’. One might read this as information about the institution and nothing more, rather than evidencing a claim to copyright; yet the ‘Iptc.Application2’ line suggests otherwise: ‘Copyright Rijksmuseum Amsterdam PO BOX 74888 1070 DN Amsterdam the Netherlands +31 206747000’. In addition, upon opening every Rijksmuseum digital surrogate in Photoshop, the © symbol is clearly displayed in the image editing frame.

The mere presence of the copyright notification is confounding. Turning to the Rijksmuseum’s online terms and conditions there is nothing to indicate that the museum deems digital surrogates of public domain works also to be in the public domain.^[26] Next, I turned my attention to the individual webpages for each digital surrogate. At the very bottom of every page is a discreet green button for ‘+ Object data’ (Fig. 8).

Clicking on that button reveals a wealth of information regarding the object’s identification within the institution, the original creator and his techniques, as well as acquisition and rights for the work (Fig. 9).

The line for ‘Acquisition and rights’ reads:

Credit line        Dupper Wzn Bequest, Dordrecht
Acquisition      1870
Copyright         Public domain

In this instance, we can see that Abraham Mignon’s painting was acquired in 1870 through the Dupper Wzn Bequest. The ‘object’ to which this information relates is the material object, Mignon’s Still Life with Flowers and a Watch (Fig. 10). In many respects, that is what one would expect. But, when clicking the ‘Public domain’ hyperlink, the user is taken to the museum’s Creative Commons CCO Public Domain Dedication page, which reads:

The person who associated a work with this deed has dedicated the work to the public domain by waiving all of his or her rights to the work worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
You can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission.^[27]

For many, it will be obvious that Mignon didn’t ‘dedicate’ this work to the public domain in the sense referred to on the museum’s website; for one thing, the work was painted at a time when copyright, as we know it, did not exist. This statement can only apply to the digital surrogate. What is problematic, however, is that information about the material object and the digital surrogate is being conflated in a way that may cause confusion for the user. Moreover, nowhere does the Rijksmuseum clearly and prominently state its policy on the status and reuse of digital surrogates on its own website. While the museum has in many ways set a global standard for open digital heritage, it appears to broadcast and champion that standard everywhere except on ‘www.rijksmuseum.nl.’ Is this simply about an institutional disconnect or gap between policy and information management practices, or something more?

Copyright information is not the only metadata pertinent to this research, nor are these practices indicative of the metadata in the rest of the sample. SMK’s metadata for one of its surrogates is short and sweet including information about the original author, the title of the work and date of creation, who made the digital surrogate, a link to the rights statement, information about the host institution, and a ‘Public Domain (CCO)’ mark. Missing from the metadata is the date the digital surrogate was made. In fact, several institutions include no such date within their metadata. When the institution disclaims copyright in the digital surrogate, embedding the date of creation might seem unnecessary. After all, no assessment must be made of whether the copyright has expired and the digital surrogate has passed into the public domain (that is, assuming the digital surrogates are still being used seventy or more years from now). Yet, recording the date of creation is important for other reasons; for example, it may be useful in future studies on the development of digital cultural heritage and information technologies.

Indeed, technology influences metadata. Depending on the interface used by the institution, the digital surrogate’s download may be facilitated in different ways: it might be uploaded to the website with the metadata attached; it could be hosted through a digital asset management system that embeds the most current metadata upon download or, alternatively, wipes such metadata and provides none at all; the surrogate may be stored on and delivered by a cloud service, such as DropBox; or it might be provided via email on request. Each of the decisions about how to create, store, manage, and make available digital surrogates online can impact the format, type, and quality of metadata attached, or not attached.

To be fair, managing metadata is tedious and updating it can be difficult. Perhaps that is why certain institutions choose to refer users to their online terms and conditions in place of embedding static rights statements within their metadata, as does The J. Paul Getty Museum and the Yale Center for British Art. Should the terms of use change, such information can be managed and updated on the website, applying to each future use of digital surrogates already released online.

As access demands to digital cultural heritage become increasingly global, institutional metadata policies must similarly adapt. Responding to the needs of an international audience might require metadata translation, depending on the language in which the metadata was originally drafted. Overwhelmingly, the most common language in metadata is English, which could be due to the influence of the organizations responsible for creating the technology, schema, and management software. Still, some digital surrogates contained bits of text in the language of the host institution, such as in Dutch or Norwegian.

Many digital surrogates contain metadata that is both rich and intriguing. For example, in the metadata for the 2008 digital surrogate, the Yale Center for British Art has included information about the process by which the digital surrogate was made: a digital scan of a transparency, which itself was made in 1997. Some information embedded by institutions could pass for abstract poetry:

people by name,mad hatter,period by decade or era,victorian
era,party,tea,discipline,humanities,classics,literature,art
genres,fiction,food,drink,celebration,entertainment event,organism,animal,
animal categories,mammal,people,child,female,girl,style and period,
Date by century of work or scene,19th century,social gathering,adventure,
rodent,children’s literature,dormouse,alice,
alice in wonderland,children’s drawings, teas,foods,drinks,
celebrating,celebrations,parties,animals,children,kid,kids,females,
personalities,famous people,named people,infant,
infants,beverage,beverages,rodents,victorian,organisms,
childrens literature,childrens stories,children’s stories,children’s books,
children’s story,childrens books,childrens book,children’s pictures,childrens pictures,childrens picture,childrens drawing, people by name,
mad hatter,period by decade or era,victorian era,party,tea,
discipline,humanities,classics,literature,art genres,fiction,food,drink,
celebration,entertainment event,organism,
animal,animal categories,mammal,people,child,female,girl,style and period,Date by century of work or scene,19th century,
social gathering,adventure,rodent,children’s literature,
dormouse,alice,alice in wonderland,children’s drawings,
teas,foods,drinks,celebrating,celebrations,
parties,animals,children,kid,kids,females,personalities,famous people,
named people,infant,infants,beverage,
beverages,rodents,victorian,organisms,childrens literature,childrens stories,children’s stories,children’s books,children’s story,childrens books,childrens book,children’s pictures,childrens pictures,childrens picture,
childrens drawing, people by name,mad hatter,period by decade or era,victorian era,party,tea,discipline,humanities,classics,literature,art genres,fiction,food,drink,event,celebration,
entertainment event,organism,animal,animal categories,mammal,people,child,female,girl,style and period,Date by century of work or scene,19th century,social gathering,adventure,rodent,children’s literature,dormouse,alice,alice in wonderland,children’s drawings,Anniversary,
Anniversary 2015,
teas,foods,drinks,celebrating,celebrations,parties,animals,children,kid,kids,females,personalities,famous people,named
people,infant,infants,beverage,beverages,rodents,victorian,organisms,childrens literature,childrens stories,children’s stories,events,children’s books,children’s story,childrens books,childrens book,children’s pictures,childrens pictures,childrens picture,childrens drawing^[28]

Among other examples are pages and pages of groups of numbers, empty color profiles, technical jargon, byte counts, and extensive editing histories, the value of which may elude this researcher, yet be perfectly clear to a researcher set to a different task.

Why is this all important? Because a user might download a digital surrogate and post it on a website, incorporate it into some new cultural good, or resize it to the dimensions of the original work and include it in the file of an open source exhibition. Once that digital surrogate is divorced from the context of its webpage and the relevant use policy, that context might be lost forever – unless you find a way to preserve it and attach it to the digital surrogate. Metadata provides that mechanism. It allows the next user to learn where the original material work is held, who made it, and whether any restrictions apply to the reuse of the surrogate. If the metadata indicates the digital surrogate is restricted, that user might refrain from engaging in unauthorized reuse.

On the other hand, if the digital surrogate fails to include reference to copyright, although the cultural institution claims copyright through its website terms, unauthorized reuse might expose a subsequent user to liability for infringement, regardless of their intent, knowledge or understanding of the law. Consider, for example, rights information in the metadata for the works in this exhibition. Of the 100 works that make up the exhibition, institutions expressly asserted or claimed copyright in relation to 72 digital surrogates of those works. However, of these, 53 included no rights information whatsoever in the metadata. Indeed, as previously noted, 37 of the 100 digital surrogates lack any metadata at all. Once made available online, these works risk becoming de facto orphans. The prevalence and management of both analogue and digital orphan works is already a widely recognized challenge for the sector, yet many institutions appear to be unwittingly exacerbating this phenomenon by releasing digital surrogates to the internet stripped of their metadata.

MAKING AVAILABLE

It is unsurprising that copyright issues impacted not only how the research and print exhibition took shape, but also the final form of the open source exhibition (see Figs 14-17). Copyright law posed several obstacles for making available online key components of the open source exhibition.

First, we made the decision to not claim copyright in our exhibition photography. This decision was discussed and agreed with both the photographer and the University of Glasgow. However, this is simply an assertion of ‘no copyright’: copyright arises at the point of creation and our statement about the copyright status of these photographs does not determine whether any such rights actually exist. Similarly, our decision to not claim copyright is not intended to suggest that all exhibition photography of this kind can be assumed to be in the public domain. As we set out above, that will depend on a range of different factors, including the relevant law of the jurisdiction where protection is claimed.

Second, we had to carefully consider how we chose to make use of the exhibition photography for the open source materials, as well as the exhibition publication. Instead of using thumbnail images of the digital surrogates, we used only thumbnails of our own exhibition photography. In fact, none of the original digital surrogates are used in any of the publication or research materials (although they are, of course, ‘embedded’ within the exhibition photography).

Third, the online display of our own exhibition photography raised infringement concerns, especially relating to digital surrogates we designated as medium and high risk. However, making photographs of the material surrogates available to examine and explore is key to the user’s curation process and the aspirations of the online exhibition. To manage these two competing concerns, we took cues from cultural institutions that disable the right-click and download function by making our images of their digital surrogates available in the same manner. This enables users to browse through the works and zoom in to examine the material surrogates in detail, but prevents the user from downloading the exhibition photograph itself.

Similarly, concerns about exposure to liability for copyright infringement influenced the structure of the open source exhibition file and its contents. A conscious decision was made to provide print files for resized digital surrogates in only the open and low risk categories (Figs 18-20). As such, instructions for how to locate, access, download and resize the institution’s digital surrogate from its own website are provided in the medium and high risk folders in place of the print files.

Finally, regarding the curation of the print exhibition, we made the decision to display the works chronologically according to the year in which the artist died or, where such a date was unknown, the year of the work’s creation. Generally, it is the year in which the artist died that triggers the countdown to the expiration of copyright in the original work.

CONCLUSION

The relationship between intellectual property law and digital cultural heritage may seem confusing, indeed confounding at times; but it is not without hope. Great efforts are being taken within the cultural heritage sector to enhance our shared understanding of these issues and to educate institutions on how best to navigate these complex waters. A good example is Rights and Reproductions: The Handbook for Cultural Institutions, co-published in 2015 by the Indianapolis Museum of Art and the American Alliance of Museums. It is, arguably, the first comprehensive resource to focus on rights and reproductions guidelines, established standards, and emerging best practices for heritage institutions.^[29] Similarly, the recent launch of the RightsStatements.org project, a joint initiative of Europeana and the Digital Public Library of America, provides cultural institutions with simple terms for rights statements that summarize the copyright status of works in their collections.^[30]

These developments will certainly impact future content released online, but what about content that is already out there?

As new technologies provide opportunities to make other types of digital surrogates, offering new forms of engagement, do these new surrogates have a stronger claim to copyright protection? And if so, what are the implications? Display At Your Own Risk does not attempt to answer these questions; it simply sheds light on the current status of digital cultural heritage. But, these questions will need to be seriously considered in the very near future. Technology is developing at a seemingly exponential pace; and copyright law is struggling to catch up. Ultimately, it is users who get caught in the gap, and it is the future of our shared cultural heritage and the creation of new cultural goods that suffers.

^[1]          The Art Newspaper, ‘Visitor Figures 2014: Exhibition & museum attendance survey’, available at:   http://www.museus.gov.br/wp-content/uploads/2015/04/TheArtNewspaper_Ranking2014.pdf (accessed: 7-October-2015).

^[2]          Wikipedia, ‘List of most visited art museums in the world’, available at: https://en.wikipedia.org/wiki/List_of_most_visited_art_museums_in_the_world (accessed: 7 October 2015).

^[3]          Tate, ‘Ophelia’, available at: http://www.tate.org.uk/art/artworks/millais-ophelia-n01506 (accessed: 30 October 2015).

^[4]          Tate Images, ‘Preview: Ophelia’, available at: http://www.tate-images.com/results.asp?image=N01506 (accessed: 30 October 2015).

^[5]          Tate Images, ‘Copyright policy’, available at: https://www.tate-images.com/CopyrightPolicy.asp (accessed: 10 October 2015).

^[6]          Tate, ‘Copyright, permissions and photography’, available at: http://www.tate.org.uk/about/who-we-are/policies-and-procedures/website-terms-use/copyright-and-permissions (accessed: 10 October 2015).

^[7]          Tate, ‘Creative Commons licences and Tate’, http://www.tate.org.uk/about/who-we-are/policies-and-procedures/website-terms-use/copyright-and-permissions/creative-commons (accessed: 10 April 2016).

^[8]          Europeana, ‘Public Domain Usage Guidelines’, available at: http://www.europeana.eu/portal/rights/public-domain.html (accessed: 18 October 2015).

^[9]          MKG Hamburg, ‘Contact’, available at: http://www.mkg-hamburg.de/en/contact.html (accessed: 18 October 2015).

^[10]         SMK, ‘Use of images and text: Free download of artworks’, available at: http://www.smk.dk/en/use-of-images-and-text/free-download-of-artworks/ (accessed: 12 October 2015).

^[11]         Art Institute of Chicago, available at: http://www.artic.edu/ (accessed: 30 October 2015).

^[12]         Art Institute of Chicago, ‘Copyright’, available at: http://www.artic.edu/copyright (accessed: 30 October 2015).

^[13]         Art Institute of Chicago, ‘Terms and Conditions’, available at: http://www.artic.edu/node/1727 (accessed: 30 October 2015).

^[14]         The National Library of Wales, available at:  https://www.llgc.org.uk/index.php?id=1 (accessed: 12 October 2015).

^[15]         The National Library of Wales, ‘Copyright’, available at: https://www.llgc.org.uk/about-nlw/copyright/ (accessed: 20 October 2015).

^[16]         The National Library of Wales, ‘Intellectual Property Rights Policy’, available at: https://www.llgc.org.uk/about-nlw/copyright/intellectual-property-rights-policy/ (accessed: 20 October 2015).

^[17]         The National Library of Wales, ‘The Battles of Alexander the Great’, available at: https://www.llgc.org.uk/digitalmirror/pei/PEI00002/27/tudalen.html?lng=en (accessed: 16 October 2015).

^[18]         National Gallery of Ireland, ‘Reports, Policies & Procurement’, http://www.nationalgallery.ie/en/aboutus/Reports_and_Policies.aspx (accessed: 8 October 2015).

^[19]         Rijksmuseum, Amsterdam, ‘Photoservice’, available at: https://www.rijksmuseum.nl/en/photoservice (accessed: 22 October 2015).

^[20]         Rijksmuseum, Amsterdam, ‘Organization’, https://www.rijksmuseum.nl/en/organisation/ (accessed: 22 October 2015).

^[21]         Rijksmuseum, Amsterdam, ‘Terms and conditions Rijksmuseum’, available at: https://www.rijksmuseum.nl/en/organisation/terms-and-conditions (accessed: 22 October 2015).

^[22]         IPTC Photo Metadata, available at: https://iptc.org/standards/photo-metadata/ (accessed: 12 April 2016).

^[23]         I can take no credit for any of the programming. For that I must thank Jesus Rodriquez Perez, the Data Specialist in our research group, CREATe, at the University of Glasgow.

^[24]         British Library, ‘Audubon’s Birds of America’, available at: http://www.bl.uk/collection-items/the-birds-of-america (accessed: 28 October 2015).

^[25]         Los Angeles County Museum of Art, ‘Terms and Conditions’, available at: http://www.lacma.org/about/contact-us/terms-use (accessed: 14 October 2015); Walters Art Museum, ‘Rights and Reproductions’, available at: https://www.thewalters.org/rights-reproductions.aspx (accessed: 14 October 2015).

^[26]         The relevant portion of the policy reads: ‘7. Non-public domain images and texts on this website are protected by copyright, with the Rijksmuseum being the copyright owner of the photographic material and where applicable of the images themselves.’ To access this policy, visit ‘Terms and conditions Rijksmuseum’, available at: https://www.rijksmuseum.nl/en/organisation/terms-and-conditions (accessed: 18 October 2015), and click on ‘Terms and conditions governing the use of the websites’ (accessed: 18 October 2015) to download the policy.

^[27]         CC0 1.0 Universal (CC0 1.0) Public Domain Dedication, available at: http://creativecommons.org/publicdomain/zero/1.0/deed.en (accessed: 25 October 2015).

^[28]         Xmp.dc.subject ‘poetry’ by the British Library; see the metadata for digital surrogate #68.

^[29]         Registrars Committee of the American Alliance of Museums, ‘Recent Publications’, available at: http://www.rcaam.org/about/news/rights-reproductions-the-handbook-for-cultural-institutions/ (accessed: 22 April 2016).

^[30]         Rights Statements, available at: http://rightsstatements.org/en/ (accessed: 22 April 2016).