you might have heard that the Wikimedia Foundation and the National Portrait Gallery are having a bit of a row these days. At the core of the dispute lies the fact that in march an English wikipedia administrator by the name of Derrick Coetzee uploaded more than 3000 high resolution images of paintings held by the National Portrait Gallery to the Wikimedia Commons.

The images uploaded by were not simply taken from the NPG’s website and re-uploaded to the wikimedia commons, as the NPG does (and did) not provide high resolution images files on it’s website. While the NPG website only offers relatively low resolution images (see this page for a typical image provided by the NPG and this page for the high resolution version uploaded by Coetzee), Coetzee managed to use the website’s zomify feature (now disabled) in order to obtain the high resolution files and subsequently uploaded them to the Wikimedia Commons.

While the NPG does not dispute that the original paintings are in the public domain, it argues that Coetzee’s action violates a numer legal regimes that give the National Portrait Gallery the exclusive right to determine how these reproductions are distributed. According to an email send by the NPG’s law firm to Coetzee his actions constitute an Infringement of the NPG’s copyright in those images as well as an infringement of the NPG’s database right (in the database populated by these works). In addition the NPG argues that Coetzee’s actions constitute an unlawful circumvention of technical protection measures (even though zomify clearly states that zomify is not an image security system) and breach of contract. While all of these are serious allegations (the last one is a bit silly if you ask me) the current debate very much centers on the question if the National Portrait Gallery should have a copyright regarding these images. In a post on boingboing.net Cory Doctorow lays out why this is such a fundamental question:

In Britain, copyright law apparently gives a new copyright to someone who produces an image full of public domain material, effectively creating perpetual copyright for a museum that owns the original image, since they can decide who gets to copy it and then set terms on those copies that prevent them being treated as public domain.

Regardless of the fact that this is obviously problematic the general consensus seems to be that under British copyright law the NPG does indeed hold a copyright in the photographic reproductions (because the making of the reproductions of these paintings required a significant expenditure of labour) while under US law (the wikimedia foundation is based in the US) it does not.

So on one side we have the NPG claiming that it’s copyrights have been violated and that Coetzee/Wikimedia should therefore remove the high res-images from the Wikimedia Commons and on the other side we have Coetzee (backed by the Wikimedia Foundation, many wikipedians and Creative Commons) claiming that these images belong to the public domain and do not need to be removed. The wikimedia foundation’s Erik Möller has outlined this position in on the Wikimedia Foundation’s blog:

The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums. In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:

“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.” [source]

Some in the international GLAM [pk: Galleries, Libraries, Archives and Museums] community have taken the opposite approach, and even gone so far to suggest that GLAM institutions should employ digitial watermarking and other Digital Restrictions Management (DRM) technologies to protect their alleged rights over public domain objects, and to enforce those rights aggressively.

The Wikimedia Foundation sympathizes with cultural institutions’ desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions’ educational mission. It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopedia serves any public interest whatsoever.

I completely agree with the position taken by the Wikimedia Foundation here. It should not be possible to monopolize public domain works by obtaining copyrights in simple (or even complicated) reproductions of these works. Once the copyrights in the original works have expired those who formerly held the copyright or those who happen to own the physical works should not have any exclusive right to determine what third parties can do with reproductions of these works. As far as i am concerned this is one of the fundamental principles of the public domain which cannot be pushed aside by museums in search of online business models¹.

However i have the feeling that this principle is not the only thing that should be considered in the current dispute. It is likely that in this particular case the National Portrait did not knowingly publish the high resolution photos of these portraits:

Assuming a certain level of technological ignorance on behalf of the NPG it is fairly safe to assume that they thought they where only making available 500 * 400 pixel images and allowed users of the website to see 500 * 400 px sections of the paintings in high resolution. Before Coetzee proved them otherwise the NPG probably never realized that this meant that the entire high-res files needed to be on a web-server somewhere².

Does the public domain status of the original paintings requires the NPG to make available the high-res photos? As far as i can see not. The public domain status of these paintings means that nobody has the right to control their reproduction and publication of reproductions anymore, but it does not mean that all reproductions of these pictures must be freely distributed. Just as i can take a photo of a public domain work and keep it for myself the NPG can decide to take these pictures and then keep them for whatever they please to do with them³: There simply is no right of access to public domains works or their reproductions.

If you consider this it is a little bit easier to understand the position of the NPG. They never knowingly published the high-res versions of these images and all of a sudden they appear on Wikipedia and there does not seem to be a way to control their distribution anymore. At this point it is very much a theoretical question if the NPG has a right in these images or not because the images are out on the net and there is absolutely no way for anyone to regain control over them ever again (regardless of how the legal dispute will end).

However it is important to note that before these images got out onto the net the NPG did not try to control their distribution by asserting copyright but simply by not making them available, knowing (one assumes) that once they were available their copyright claims would be without much effect no matter how much these are backed by British law.

Given all of this i do think that it will be counterproductive to use this particular case in order to defend the principle that there should be no right of exclusive control over the distribution of reproductions of public domain works (as the blog post by Erik Möller implies). Instead this dispute is really about access control to these files.

If one is really interested in working on getting as many good quality reproductions of public domain works online then it is necessary to work with cultural heritage institutions by convincing them that making available these files without restrictions is in the best of their interest (as a number of Wikipedia volunteers argue in this excellent open letter).

Working with cultural heritage institutions means that contributing to repositories of freely licensed and public domain works such as the Wikimedia Commens should always be based on conscious and voluntary decisions by those in a position to make material available⁴. There is a growing number of examples of such behavior and it is probably only a question of time (and hard work on behalf of wikipedians) before more cultural heritage institutions recognize that making available their collections rather than keeping them locked away in search of marginal income from licensing⁵ is more likely to strengthen their position in the digital environment.

It might very well be contra-productive to insist that the images obtained by Coetzee are not ‘protected’ by copyright as this is likely to make cultural heritage institutions feel even more threatened by public domain advocates. Instead this energy should be focussed on convincing cultural heritage institutions that it is in their best interest to to make their collections available as open as possible.

1. I am currently working on a Public Domain manifesto that outlines this and other principles. This partially explains why i think that this is such an important dispute.
2. Which once again demonstrates that DRM cannot work, that there is no real difference between downloading and streaming and that if you really want to keep something for your self the most stupid thing you can do is to store it on a device connected to web, no matter how much ’security’ may be involved.
3. I do however think that the NPG has the moral (and statutory) obligation to make these images available as they are a public institution funded with public money, but that is an entirely different line of argumentation.
4. Again, publicly funded institutions have the moral (and should have the statutory) obligation to make public domain works available, but that is an different line of argumentation.
5. According to a freedom of information act request the NPG only received a total of £11,291 in royalties for online rights in all of 2008, which is probably less than what they will spend on lawyers this year.

Last Wednesday I attended the launch of ‘Adieu auteursrecht, vaarwel culturele conglomeraten‘ the new book by Joost Smiers. In this book he argues that (a) copyright is harmful, because it has led to large conglomerates dominating the production of culture and that (b) the world would be better off without copyright because it would be better of without these conglomerates and therefore (c) copyright needs to be abolished and the conglomerates must be broken apart. According to Smiers and his co-author Marike Schijndel this will lead to a level playing field for artists and other cultural producers and result in both a more diverse culture and better abilities for artists and cultural producers to live off their work.

Now I have not read his book yet, but I have listened to Smiers for a number of times, and he always looses me at the point where he assumes that the absence of copyright and conglomerates will quasi automatically lead to a more just distribution of attention and wealth among artists and cultural producers.

Regardless of his rather haphazard line of argumentation the public at the Balie seemed to like his ideas a lot (not really surprising since just about everybody can agree on the fact that the current copyright system is not working very well in ensuring that artists can live of their work, and the public that frequents these kind of events sure loves to see the blame laid on American cultural conglomerates) and there was no real discussion about the validity of his analysis or the nature of the ‘new business models’ that Smiers and Schijndel predict to emerge once we have gotten rid of copyright and the conglomerates (the last one being a bit of a shame).

During the non-debate (you were assumed to argue form a the perspective of a society without copyright and conglomerates) a number of people came up with arguments against copyright that were based on a variation of the argument that copyright restricts dialogue and is therefore a constraint on artists practices.

This argument is very much in line with a recent paper1 by the Canadian copyright scholar Abraham Drassinower. In ‘Authorship as Public Address: On the Specificity of Copyright vis-à-vis Patent and Trade-Mark‘ Drassinower makes the argument that “copyright is not about copying, pure and simple” [p.205] but rather about the right of an author to be associated with his work. Or to put it in Drassinowers own, more legalistic language:

Thus, copyright is less an exclusive right of reproduction than an exclusive right of public presentation. [p.221]

Drassinower arrives at this conclusion by examining the differences between copyright law, patent protection and trademarks. From these differences he tries to distill which particular kind of wrongdoing copyright law sanctions and tries to prevent. According to Drassinower this is not the simple unauthorized use of the a copyrighted work by persons other than the author or his agents, but a very specific form of use:

Put in terms of copyright doctrine, we need to understand (1) that originality is not about the absence of use, (2) that fair dealing is not about the absence of originality, and (3) that therefore originality and fair dealing are not opposing impulses or exceptions to each other, but rather radically continuous and integral aspects of copyright law as a whole. The fundamental problem is that of grasping the nature of the continuity. […] Thus, copyright is less about a prohibition on copying per se than about a distinction between permissible and impermissible copying—that is, between saying things in one’s own words and merely repeating the words of another. Authorship is less about the absence of copying than about the cultivation and exercise of modes of imitation that amount to more than mere repetition. Copyright law can no more prohibit copying per se, than it can prohibit authorship. [p.208-9]

According to Drassinower the fact that copyright law regulates cultural production which he (and many of the participants in the discussion following the book launch in the Balie) sees as a form of speech (or dialogue) means that copyright law can’t exclude others from using protected works as part of their own engagement in this dialogue: “… Persons are entitled to use the works of others provided such use is consistent with the equal authorship of those others” [p.213]. According to this conceptualization of copyright law no harm to the original author is done as long as I do not present someone else’s work as my own work, but rather use it in a way where it is instrumental to my own undertakings.

This gets more interesting once Drassinower expands this argument and applies it to other types of activities regulated by copyright law. In the 2nd part of his paper he applies his concept to copying in the digital context and comes to the conclusion that the mere making of digital should not trigger copyright law, since it rarely happens in order to communicate the copied works as a work:

The distinction between the reproduction of a work in the physical sense and its reproduction as a work in the normatively relevant sense is also at play in the ongoing encounter between copyright law and digital technology. It is generally accepted, for example, that Internet browsing— which requires the making of temporary copies—is legal on the grounds that by posting the work online, the poster is granting an implied license to others to reproduce that work in order to view it. […] Whereas the implied license and public interest approaches more or less successfully cloak the rupture between copyright law and digital technology, the authorship as public address approach interprets the legal significance of technology from the viewpoint of a renewed understanding of the law - that is, of the nature of the right and wrong at issue. Because it dislocates the centrality of reproduction as the organizing principle of copyright law, the authorship as public address approach can find that the reproductions involved in browsing and caching do not amount to uses of the work as such. Instead, since browsing and caching2 are neither implied licensing nor public interest exceptions, they constitute user rights precisely because they amount to non-authorial use. [p.227]

While Drassinower’s paper is somewhat complicated and lengthy3 I do think that his approach is well suited to bring copyright law back into line with reality: In a time where copying is one of the most basic cultural technologies it is more and more absurd (and inefficient) that copyright law even attempts to regulate the mere making of copies. The beauty of Drassinowers argument is that he does not depart from this observation but rather arrives at the conclusion that copyright law cannot be about the regulation of copies by looking at the balance between user and author rights. By framing the subject matter of copyright as ‘dialogue’ between author/users and user/authors he saves copyright law from falling prey to the explosion of everyday copying.

1. Drassinower, Abraham, Authorship as Public Address: On the Specificity of Copyright vis-à-vis Patent and Trade-Mark. Michigan State Law Review, No. 1, 2008. Available at SSRN
2. Of course the same argument can be made for private copying [a.k.a. unauthorized downloading] which Drassinower considers to be a user right as well.
3. On the other hand he references Jorge Luis Borge’s 1956 shot story ‘Pierre Menard, Author of the Quixote‘ which, as far as i am concerned, is the most insightful essay on copyright ever.

Loes Peeperkorn from the Scen foundation kicked off the conference ‘Nu voor Later’ at the Reinwardt Academy.  She welcomed everybody and spoke about the conference’s goal; to increase attention for IT heritage or ‘new heritage’ in the Netherlands.  The Scen foundation, co-organizer of the conference, is a collaboration between collectors, cultural heritage institutions and companies.

One of the speakers Doron Swade inspired us with a vivid presentation about preserving IT heritage. He is an engineer, historian and curated many exhibitions at several museums amongst others the Science Museum, London and the Computer History Museum. He explained dilemma’s that occur while restoring/preserving historic computing machines. One of them is authenticity; what is more important a machine that works using non-original parts or a non-working but authentic machine? Would we be misleading future generations if we used non-original parts? Is it all about hardware or software (the idea behind the machine)? There are no definite solutions for these dilemmas. It’s an ongoing process and a curator’s job to search for the balance between authenticity and the (educational) value of working machines.

A second dilemma he described is the importance of human resources. The engineers and technicians who built and worked with the machines are those best qualified to restore them. We need these ‘committed lunatics’ said Swade, since restoring those machines is a highly skilled job. Without these volunteers museums could not afford the restoration of the machines. Unfortunately these people do not live forever, so sustainability is an important issue here. The big question is, can we train a new generation to work with these machines?  Responding to a question from the audience about how to deal with the absence of spare machine parts,  Swade states that this is not likely to happen; there are boxes of spare parts. He mentioned again human resources, they form a bigger risk; they could run out. We have to train new people. With this remark Doron Swade ended his presentation; all in all a fascinating introduction in IT heritage.

Author: Lieke Heijmans

Early last year the Dutch government (the ministry for Economic Affairs, the Justice Department and the ministry for Education Culture and Science to be precise) commissioned a research report on the socio economical aspects of (peer 2 peer) file sharing. Last week the research consortium formed by TNO, SEO & IvIR published the final version of the report titled ‘Ups and Downs - the economic and cultural impact of file sharing for music, film and games’. This 141 page report looks into the economic and cultural consequences of file-sharing for the music, movie and games industries. The central conclusion of the report is that:

The research shows that the economic impact of file sharing on the Dutch economy is strongly positive when viewed from both short term and long term perspectives. As a result of file sharing consumers get access to a wide range of cultural products. This has a positive impact on the economy […] According to estimates the positive economic effects for consumers amount to 200 million euro per year. On the other side the maximum decrease in revenues for producers and publishers of sound recordings is 100 million euro per year. [page 3 of the report, translation mine, an official english translation of the entire report is forthcoming]

It is refreshing to see a government sponsored report that recognizes that while one part of the entertainment industry (music) suffers some losses, these don’t necessarily outweigh other - positive - effects of file-sharing: According to the researchers, file-sharing gives access to a wide range of cultural goods and is often used to sample works that are bought later. Most file-sharers would have never bought all the content they downloaded, and having access to such a large media library has positive effects on the social well and economic position of downloaders and the society as a whole.

One of the most interesting observations in the report is that while revenues related to the sale of music are steadily declining, the overall amount of money spend by consumers on media for entertainment (ie music, videos and games) is relatively steady. It appears that money that is not spend on music is instead spend on video games. This can be seen as an indication that the real cause of the decline of revenues in the music industry is not primarily caused by file-sharing consumers, but by intra-industry competition: people simply spend their entertainment euros differently.

Instead of music CDs consumers buy Guitar Hero or Rock Band (plus extension) packs these days. This is one more reason why the recording industries’ push for stricter IP enforcement will probably not do them much good: It gives consumers little reason to not spend money on games and go back to spending it on music CDs. From the consuer perspective a €50 game is much better value for money than a CD that contains one or two really good tracks.

After the presentation of the report on Saturday in Groningen a Buma/Stemra representative called the report ’scary’ [’greizelig’ in Dutch]. One can only hope that his fear will transform itself into the insight that the industry will need to change if it wants to ensure it’s survival. But if the past is any indication the most likely reaction to this fear will be a counter study that comes to the conclusion that downloading is extremely bad for the economy and that we need much stricter IP-enformcement. In the meanwhile one third of the Dutch citizens will continue to download and go to concerts and buy CDs and buy DVD and go to the movies and fail at becoming Guitar Heros…

In July 2008 the European Commission published a Green Paper on Copyright in the Knowledge Economy. According to the Commission,

The purpose of the Green Paper is to foster a debate on how knowledge for research, science and education can best be disseminated in the online environment. The Green Paper aims to set out a number of issues connected with the role of copyright in the “knowledge economy” and intends to launch a consultation on these issues.

The Green Paper consists of two parts, the first one dealing with general issues regarding to the role of exceptions and limitations to exclusive rights and the extend to which these have been harmonized across the member states of the EU. The second part deals with specific issues related to the exceptions and limitations in the fields of education, libraries and archives, access for the disabled and ‘user generated content’. Throughout the Green Paper the Commission has formulated 25 questions related to these issues and has invited stakeholders provide the commission with comments and reactions by the 30th of November 2008.

Yesterday, Knowledgeland has submitted a document with comments on the Green Paper [download the PDF here]. These comments deal with the questions relating to issues that are relevant to our own activities [primarily the projects Images for the Future and Creative Commons Nederland]. Parts of these comments have been formulated based on the - more extensive - reply by the Dutch Cultural Heritage Institutions and the comments from working group 3 of the COMMUNIA network and La Quadrature du Net.

The presidential campaigns are in their final stage, elections are coming up.  Time to already have a cautious look what might happen after November 4th. For instance, what will happen with science and technology policy under the next administration? The people of Sciencedebate 2008 provide us that view. They asked Obama and Mccain about their plans for science and technology. The most remarkable proposal: Senator Obama wants to establish the nation’s first Chief Technology Officer. Here is an assessment of some of the candidates’ answers.

First, Sciencedebate needs to be praised for making both candidates explain their future policies for science and technology.  They now have to take a stand on the subject. I have not seen many European leaders being put in that position. They too often get away with obligatory oneliners as ‘science and technology is very important for innovation’ without being asked how they will realize that.  Which gives them opportunity not to follow up words with actions. With their answers to Sciencedebate 2008, that will be more difficult for both Senator Obama and McCain.

Having said that, the first thing that comes to mind when reading their answers is how traditional both candidates are. Many proposals resemble much of the debate in Europe at the start of the Lisbon Agenda in 2000. Continue reading ‘Who will be CTO of America?’

Professor Bernt Hugenholtz the director of the Institute for Information Law (IVIR) at the University in Amsterdam (and Legal project Lead for Creative Commons Netherlands) has written an open letter to the president of the European Commission, Manuel Barroso in which he is expressing his irritation with the European Commissions policy making process in the field of Intellectual property law. This letter has been triggered by the recent proposal by Commissioner Mc Creevy for a 45 year extension of the current 50 year period of copyright on musical recordings.

Hugenholtz is the principal author of two studies commissioned by Mc Creevey’s Internal Market directorate (’Recasting of Copyright & Related Rights for the Knowledge Economy‘ (2006) and ‘the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society‘ (2007) that both deal with the question of the economic and legal impact of an extension of copyright terms on musical recordings. Hugenholtz and his team of experts concluded, among other things, that a copyright term extension would be a bad idea resulting in increasing costs for consumers, competitors, and society as a whole while at the same time only benefitting a small class of highly successful artists and their record labels.

In his open letter Hugenholtz recognizes that academic experts won’t see their words translated directly into policy but that there is a reasonable expectations that the European Commission who commissioned scientific studies on this issue would at least reference the outcomes of these studies:

We are, of course, well aware that several conclusions of the IViR studies do not agree with the policy choices underlying the Commission’s proposals. And we are certainly not so nave as to expect that the recommendations of an academic institution such as ours, however well researched and conceived they may be, will find their way into the Commission’s policies in undiluted form. What we would expect however is that our work, which was expressly commissioned by the policy unit in charge of these proposals, be given the appropriate consideration by the Commission and be duly referenced in its policy documents, in particular wherever the Commission’s policy choices depart from our studies’ main recommendations.

As you are certainly aware, one of the aims of the `Better Regulation’ policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission’s recent Intellectual Property package does not live up to this ambition. Indeed, the Commission’s obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders. This is troublesome not only in the light of the current crisis of faith as regards the European lawmaking institutions, but also - and particularly so - in view of European citizens’ increasingly critical attitudes towards intellectual property law.

While these are strong words it is questionable if the Commission, having angered large parts of the scientific community in the process of adopting the term extension proposal, will listen to them. However there is some hope that this letter and other expressions of discomfort with this way of policy making will get the attention of the European Parliament which will need to approve the proposal before it can become effective.

Last week Politiek Online had its first get-together in a series of diner conversations, theme for the evening: E-participation (soup with gremola, duck, cucumber salad, a glass of wine and other home made pleasantries).

Why is it that we trust in Wikipedia, but shrug at the outcomes of discussions with citizens?
At least three diner guests immediately started summarizing The Wisdom of Crowds by James Surowiecki: crowds are good at number guessing: pies in a pot, how much does the pig at the fair weigh, where is my lost submarine? That sort of thing: where educated, independent guesses are all thrown on a big heap and then divided by the number of people that made a suggestion. The outcome, surprisingly, is better than any of the single solutions offered. You can apparently try this at the office by holding your own elections for parliament. Empirical proof in a government organisation has it that the wisdom of crowds is more knowledgeable than the colleague who’s a real insider.

So, if crowds are great, why the suspicion when it comes to debate with citizens? And how can a government get in touch with it’s citizens in a world of web 2.0 abundance?
First of all, Wikipedia is not just about the crowd. Sure: almost anyone can write an entry or change one. But there’s a whole flock of experts ready to discuss the rightness of an entry. Wikipedia is not just crowd based, it’s also a strict expert system. We trust Wikipedia for certain knowledge: e.g. most info on rocket science is probably correct, because this is niche knowledge that concerns experts. On the other hand: info on Tibet is probably unreliable. Because so many people have different views, which are often based on opinion.

As is the case in discussions with citizens: we don’t know who they are and suspect that most of them act on an NIMBY instinct (not in my back yard). Anyone who’s ever been to one of those neighbourhood evenings knows there are always a few types that need to get something of their chest. That has been frustrating them for a long time. And is not constructive for the debate.

So what makes a constructive way for governments to get involved in discussions with citizens?
Well, bring in the web 2.0 cavalry, but don’t forget to be analogue when needed. One of the ways that worked for diner guests present, was online communities. E.g. a web based community on horse caretaking for a project for the ministry of Agriculture. Or what about the recent initiative of two moms who collected signatures to promote an earlier night live? The initiative was rejected by parliament because the signatures were digital, and not ink on paper. Also many neighbourhoods have their own hyves.

Most guests found it intruding if ‘the government’, e.g. Klaas who works at the Ministry of Education, would participate in such a community. But if Klaas knew about he hyve and politely emailed to ask some of its members to come by to talk, that would be five by five. Then they could have very web 0.0 conversations about a topic that concerns both parties. Government would get insight in what drives citizens, citizens feel heared by government. Great solutions not guaranteed, but compelling.

Felix Stalder has posted an interesting review of the recent Economies of the Commons Conference (organized by Knowledgeland in collaboration with the Balie, Images for the Future, p2p fusion and Creative Commons Netherlands) to the nettime mailing list.

His review highlights the increasingly difficult position that large archive projects (like Images for the Future) find themselves in. While these projects are expected (and commit themselves) to play by the complex and out of time rules of copyright legislation, they have to compete with successful content providers, like youtube.com or the pirate bay that operate from grey zones that enable them to ignore (many of) the restrictions imposed upon the archives by copyright legislation.

This results in the seemingly paradoxical situation that the most popular parts of the collections maintained by these archives (and as such probably also the parts with the biggest potential to generate revenue) are more or less readily available from the grey zones while they are not available form the bona-fide archives because of the difficulties involved with clearing their rights. In the long run such a situation will undoubtably undermine the ability of official archive projects to function.

It is therefore important to examine if we are willing to accept the constraints imposed by copyright law on these ‘grand projects’ of our times or if we should seriously reconsider some of the restrictions imposed by copyright law on the images of the future. Otherwise we risk that in the future the images of our past will either be owned by google inc or be available form a torrent site near you…

Copyright dungeons and grey zones (reposted from the nettime mailing list in its entirety with permission by the author)

I recently spent two days in Amsterdam at the “Economies of the Commons” conference put together by Eric Kluitenberg and others (including myself in a minor editorial role) at DeBalie. The aim of the conference was to look at long-term strategies to produce and maintain cultural resources in and for the commons. The presentations and discussions were all taped and are made accessible online. I recommend to check it out, it was a good conference, though I’m probably biased.

What struck me the most was that one could clearly distinguish two camps, even though everyone agreed that making things available under the least strictive terms possible is a good idea.

On the one side were those who work within the conventional constraints of copyright (i.e. authors/rights holders control their works). This group was, by and large, made up of representatives of large European audio-visual archives and of various multi-national EU funded projects. They sit on very large holdings (100′000s of hours of material) and command massive budget (100s of million euros) to digitize and make them available to the public. Taken together, these projects appear to reach the scale of, say, the Google books project.

The other group was comprised of projects working outside these constraints, either because they work with public domain material (Prelinger archive), ignore copyright altogether (ubu.com, ‘steal this film, II’), or work with open source models using copyright to protect user access rather than author control (blender.org).

For the first group, the main problem is that as public institutions they perceive themselves as having to adhere to the most restrictive definitions of what is legal. Working under governments that are all professing the protection of copyrights to be essential to the European ‘knowledge economy’, they seem to have fully internalized that mission. So now, they are faced with mission impossible: making material widely available AND satisfy each and every rights-holder upfront.

So, a good deal of each of their presentations was devoted to what they could not do and how digitizing the material does not make it more accessible. In the case of the Swedish archive, you still need to come to their building in downtown Stockholm to watch the tapes (ups, these are files now). Before making the material available online, they need to get permission, which is close to impossible, either because it’s hard to track down so many rights holders (and heirs of rights holders), or, in case of commercial producers, they do not see any value in free public access and so refuse to grant permission.

The most poignant moment came when Edwin van Huis (Netherlands Institute for Sound and Vision) recounted a discussion with a broadcaster about whether the institute could put online some TV segment that was already on Youtube. The answer was: No! When he asked the broadcaster how he felt about his content being on Youtube the answer was: ‘You can’t do anything against Google’. Thus, as Paul Keller remarked, there is a perverse situation that the official repositories of culture are going to be stuck with stuff that either they cannot make accessible, or nobody cares about. All the rest will be better accessible via Youtube or piratebay.

In short, it became abundantly clear that, no matter how much money you have, the attempt to solve all the legal issues first and only then start to release the material is doomed to failure. Digitization plus strict adherence to the law will not create digital archives but copyright dungeons.

Most of the successful, innovative projects, it turns out, are operating in zones of varying degrees of grey. In the American example, Youtube, the grey zone is protected by corporate might (Google). In the European example, piratebay, the grey zone is sustained by mass civil disobedience.

I suspect that the grey zones will not stay grey for ever. Sooner or later, the basic framework in which they will operate be will be defined. Google will have settled all the law suits against Youtube and p2p providers will becomes mainstream (keep an eye on mininova….). However, it seems equally save to predict that the new framework will look considerably different from what it is now, reshaped by the sheer force social reality. But by then, the official cultural repositories will have wasted a huge amount of money by building systems of restriction and a generation of culturally-interested citizens will have learned to look elsewhere to find the material they care about.

This is already the case. As many nettimers know, ubu.com is, by far, the best archive on the audio-visual heritage of the Western avant-garde art, far better than, say, what the Moma or any other major institution offers. And this on a operating budget, as Kenneth Goldsmith explained, of $50/month. Ubuweb runs on volunteer work and its own growing reputation. This is already the de-facto official archive of the avant-garde and receiving material from foundations. The point is not that you can do everything for free, but getting rid of the crippling overhead of copyright creates tremendous freedom and energies to create resources that people actually like and use.

Knowledgeland, Sound & Vision, The Balie and other organizations host the conference ‘Economies of the Commons’ at debate-center The Balie in Amsterdam on Friday 11th and Saturday 12th of April . Leading experts and specialists from audiovisual archives (BBC, INA), libraries, frontrunners in open access and the music industry (Last.fm and Fabchannel), cultural producers, p2p- and open content specialists will explore the boundaries and the future of archives, libraries and open content. The program consists of public keynote lectures, interdisciplinary workshops and film screenings.

If you couldn’t make, don’t worry, the program is streamed live and preserved at The Balie Live. Reports of the sessions can be found afterwards at the research.imagesforthefuture.org. More background about the conference can be found at the conference’s website: www.ecommons.eu