Monday, November 21, 2005

Public Domain Art in an Age of Easier Mechanical Reproducibility

From the article Public Domain Art in an Age of Easier Mechanical Reproducibility, published by Kenneth Hamma, Exec. Dir. for Digital Policy, J. Paul Getty Trust, in D-Lib Magazine.

Art museums and many other collecting institutions in this country hold a trove of public-domain works of art. These are works whose age precludes continued protection under copyright law. The works are the result of and evidence for human creativity over thousands of years, an activity museums celebrate by their very existence. For reasons that seem too frequently unexamined, many museums erect barriers that contribute to keeping quality images of public domain works out of the hands of the general public, of educators, and of the general milieu of creativity. In restricting access, art museums effectively take a stand against the creativity they otherwise celebrate. This conflict arises as a result of the widely accepted practice of asserting rights in the images that the museums make of the public domain works of art in their collections.

Indeed, it is not at all clear that the institutional claims of copyright to such works would survive a legal challenge. The judgment in a 1999 case, BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., brought in a U.S. District Court for the Southern District of New York, held that the marketing of photographic copies of two-dimensional public domain master artworks, without adding anything original, cannot constitute copyright infringement when the underlying work is in the public domain. By and large, museums have been holding their noses and hoping this ruling will neither be broadly noticed nor challenged [4]. The fact that the ruling applies only to two-dimensional works of art likely provides little relief to those museums with a traditional but persistent pecking order that goes something like: paintings, drawings, everything else.
This is, I should note, an opinion piece, as D-Lib Magazine makes clear. I'm particularly interested in the issue, however, because medieval manuscripts are treated as art objects and, therefore, supposedly not in the public domain. In fact, it's standard practice to obtain written permission to publish a transcription of a manuscript even when the transcription was made from a microfilm copy of the manuscript.

via Archivalia

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At 8:32 AM, Blogger kg said...

I do not appreciate your conclusion that medieval mss. are NOT in the Public Domain (PD). They are indeed and de facto barriers cannot remove them from the PD. Claims of the owner institutions are bare COPYFRAUD.

At 12:26 PM, Blogger John said...


Thanks for reading. If you reread my comments, paying particular attention to my use of the words "are treated as" and "supposedly, I think you’ll find that I do not state that medieval manuscripts are not in the public domain. I write: “I'm particularly interested in the issue, however, because medieval manuscripts are treated as art objects and, therefore, supposedly not in the public domain.”

As I understand it (i.e., as I have been trained), unique art objects have been legally treated as outside the public domain and medieval manuscripts have been legally treated as unique art objects. (I’m referring here to the manuscripts themselves, not to published editions or published facsimiles of manuscripts which are, as published books, subject to copyright law. This becomes an issue when one wants to publish a transcription or edition of a manuscript for which there is no printed facsimile or when one wants to work from the original, or when one wants to make and print images of a manuscript.) Personally, I make no such claim that medieval manuscripts are covered by copyright law or that they are not in the public domain. I agree that they should be in the public domain, and that claims by owner institutions that they aren't is a violation of the spirit of copyright law.

However, if the legal interpretation of the law were as black and white as you suggest, then Kenneth Hamma would not have written his opinion piece and I would not have posted on this issue. Both the issue and Hamma’s piece are of interest to me because I think the practice of copyright law as it pertains to medieval manuscripts violates the theory of copyright law, and Hamma’s article suggests that recent legal interpretations demonstrate the “copyfraud” of owner institutions. I welcome this and I can’t wait for the successful legal challenge that legally places medieval manuscripts into the public domain in practice as well as in theory.

But, as a practicing medievalist who has worked with manuscripts and who intends to do so again, I can not ignore the fact that, historically, the courts have ruled in favor of owner institutions. Regardless of the legal theory, legal practice treats medieval manuscripts as outside public domain, and as a practicing medievalist, I live within in a system that supports the claims of owner institutions. Publishers do not publish editions of unedited manuscripts or images of manuscripts without written permission from the owner institution, and owner institutions don't grant access to materials to those who don't follow their rules. If I want to work with manuscripts, I have to play by their rules until the courts rule otherwise. Is it fair and just and right? No. But it has been the way things are.

So, while I believe medieval manuscripts should be in the public domain, what I think and what the spirit of copyright law seems to suggest have little practical meaning as long as the courts rule in favor of owner institutions. And, again, that's why I'm interested in Hamma's piece: it suggests that legal opinion may be changing, that all we need is one case challenging the claims of owner institutions, and unique works of art, including medieval manuscripts, will finally be part of the public domain in practice as well as in theory.

I hope the distinctions I’m making here between theory and practice, between what I believe to be right and what the courts have historically ruled and what established tradition dictate, are clear. Your belief and my belief that medieval manuscripts (again, not published version of medieval manuscripts but the manuscripts themselves) are in the public domain means very little as long as the courts rule otherwise.

At 12:25 PM, Blogger kg said...

Thanks for the clarification.

It would be a great help for me to know some ot the court decisions you are alluding.

PD is never referring to the physical objects but to the intellectual content. The parchment and the paper is subject of ownership rules according to national laws and access regulations.


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