Copying in 3D: digitizing GLAM collections


Katie and Steve speak with Michael Weinberg, the Executive Director of the Engelberg Center of Innovation Law and Policy at NYU Law School, about 3D digitization of gallery, library, archive and museum (“GLAM”) institution collections, the goals and motivations for such projects, and how digitization implicates (or doesn’t) rightsholders.  They also discuss the open access framework in which these digitization projects occur, the difference between 2D and 3D copying, and the legal and ethical frameworks at play.

Resources:

https://glam3d.org/

https://www.law.nyu.edu/centers/engelberg

https://www.law.nyu.edu/centers/engelberg/team/weinberg

https://law.justia.com/cases/federal/district-courts/FSupp2/25/421/2325910/


Episode Transcription

Steve Schindler:  Hi, I’m Steve Schindler.

Katie Wilson-Milne:  I’m Katie Wilson-Milne.

Steve Schindler:  Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.

Hi, Steve.

Steve Schindler:  Hi, Katie.  What do we have going today?

Katie Wilson-Milne:  So we’re back and we’re taking a break from our pandemic and current events themes to talk to Michael Weinberg of the Engelberg Center at NYU about an exciting project he’s working on involving open access 3D presentation of museum and institutional collections.  And we are going to talk to him about both the practical logistical aspects of that, how he got interested in it, why it’s important.  And also the legal mostly copyright issues that come with any type of copying and display of an image of an object.  So I’ll briefly introduce Michael, who’s with us today.

Michael is the Executive Director of the Engelberg Center on Innovation Law and Policy at the NYU School of Law.  Before he joined the center, he was a general counsel of Shapeways, which is a 3D printing marketplace and service company, where he also oversaw strategic partnerships and developed new business initiatives.  Prior to being at Shapeways, Michael held a number of roles at Public Knowledge a nonprofit public interest advocacy organization dedicated to representing consumers in technology policy debates in Washington DC.  And he’s also the President of the Board of the Open Source Hardware Association where he oversees the Open Source Hardware Certification project.  So welcome, Michael.

Michael Weinberg:  Thank you so much for having me.

Katie Wilson-Milne:  And, Michael, can you tell us both a little bit about your background and how you came to this type of law meets tech, meets display-type work and also what the Engelberg Center does at NYU?    

Michael Weinberg:  Yeah, absolutely.  So as you said my background is in a little bit of public interest advocacy organization operations, especially when it comes to copyright and IP issues at Public Knowledge.  And then also a lot of work in the 3D space, 3D printing, 3D imaging; all sorts of third dimension IP stuff.  And so that comes together in the world of open access when you’re thinking about museums and cultural institutions that are making their collections available and then with the 3D element.  So instead of just having 2D images or written descriptions, bringing in a 3D full render of the objects.  And so this project brings together the copyright public interest open access advocacy I’ve done at Public Knowledge, I did it at Shapeways, and then some of the real 3D space that has been part of my career throughout.  The Engelberg Center is a great place to tie all those things together because we really are focused on, like it says on the tin, innovation law and policy.  And so we are a space that brings together the professors at NYU law who are really interested in innovation, which historically was IP focused but really has broadened out to include privacy, to include anti-trust, to include a whole range of issues connected to innovation.  And then also include both the students who are a part of the center and the alumni network that’s part of the center.  And then we have this really robust fellows program where we have people from all over New York — some of them are lawyers, some of them are artists, some of them are museum people — who are working on cutting edge issues in innovation law and policy as part of their fellowship program.  And so the Engelberg Center this place that brings together parts of New York, parts of tech, parts of NYU law into one place where people are really focused on what innovation means for the law.

Katie Wilson-Milne:  And the current project we’re talking about is called the GLAM 3D project and that’s under the auspices of the Engelberg Center, can you tell us what GLAM stands for?

Michael Weinberg:  Yeah, this is one of those acronyms that I think people in the community know really well and everyone else thinks you’re talking about ’70s-era David Bowie stuff.  So GLAM is the galleries, libraries, archives, and museums community.  So think of it as the cultural heritage consortium.  And so when those people—when the GLAMs get together they’re talking a lot about preserving culture and making culture available and studying culture.  And a big part of their collective mission is figuring out how to take all of the artifacts, all the elements that they have within their collective collections and make them available to people.  To scholars, to researchers, to just everyday people who want to experience all of these things in these galleries, in these libraries, in these archives, and these museums.  So you get towhatever you’re doing GLAM stuff you get to useyou get to call everything GLAM something.  So for us it was GLAM 3D.  Because the Glam3d.org website is all about making those collections available digitally in an open access way online in 3D.

Katie Wilson-Milne:  Steve, I would like to do a GLAM project just so we can call it GLAM something.

Steve Schindler:  Well we’re doing one right now, I think.  It’s a GLAM podcast.

Michael Weinberg:  It’s always a good incentive.

Steve Schindler:  But, Michael, I am curious, because it seems like the majority of the constituents of GLAM look like nonprofits to me and except for galleries.  And I am just curious what the balance is in the institutions that you work with between for-profit institutions and nonprofits?

Michael Weinberg:  Yeah, I think your instinct is right, is that they do tend to skew nonprofit.  There’s obviously a huge range of types of nonprofits but there are for-profit museums.  Obviously galleries can go all over the place, but generally speaking the GLAM community is more nonprofit than not.  Although some of them are—while they’re nonprofits, they have quite significant budgets obviously.

Katie Wilson-Milne:  And in putting forth this GLAM 3D project and listeners should go on to the glam3d.org website because it’s extremely detailed and provides a ton of background information and guidance, both to interested persons but certainly to interested organizations that might be wanting to do this work.  But you’re clearly very invested in wanting open access 3D digitization projects to proliferate and I think the presumption in these materials is that’s a really important thing, it’ll be good for the world.  And I wonder if you could speak a little bit to that.  Why is this important?    Why was this important for the center to do?    And what is the purpose of 3D open access overall?    What is the ultimate good or goal in institutions putting together these programs?

Michael Weinberg:  Yeah, I think that a lot of the GLAMs have a special place in our society, because they are the collectors and the stewards of our collective history.  And because of that we give them pride of place.  Often they’re nonprofits and so we give them tax breaks.  We celebrate them as part of our communities.  And part of the reason that we do that isn’t just because we want them to collect this culture and hold on to it, but also a key part of their mission is to make it available to everyone.  If they’re scholars and they want to study it or they’re just everyday people that want to engage with their history.  And so that mission of connecting people to their collective cultural history really matches up well with the open access concepts.  And the open access concepts are really about saying as an institution, as a steward of a shared cultural memory one of our missions as an institution is to make that history available to people.  And not just available behind a piece of glass where they can come and look at it, but available as a living thing, as an object to be interacted with and built upon and integrated into new creativity, new explorations.  And so all of that tends to come back to what a lot of people call the open access framework that’s really designed to create both a practical infrastructure and a legal infrastructure to make sure that people who do want to engage with these collections can do so without worrying about additional barriers, either practical or legal.

Katie Wilson-Milne:  So why 3D instead of 2D?    Certainly some museums are already posting images of their collections, mostly artworks in our experience, but you have a real focus on the three dimensional quality and I’m wondering why that’s different or what that provides that the traditional 2D collections now available online don’t?

Michael Weinberg:  Yeah, a lot of the original conversations around GLAM open access were focused on 2D and it was mostly basically because of technology, but if you think about those conversations that started about 10 years ago you had digital cameras that could take 2D images, the size of websites were such that it was easier to distribute 2D images.  It was easier for a user to work with 2D images.  But what we’ve seen over the last couple of years is the technology to capture 3D, technology to distribute 3D, and the technology to engage with 3D have all gotten cheaper and easier.  And so now where those institutions started and said okay we want 2D pictures of things to put them up on the internet or to make them available.  And now they’re looking at their collection and they’re saying well our collection exists in three dimensions.  And so what we should really be thinking about is a way to more fully digitize works that would really benefit from that kind of 3D digitization and make them available.  You could think about that and you say, well, okay the obvious things when you think about going to a museum is the sculptures are in 3D, so maybe you might digitize things like sculptures that are 3D objects.  But even paintings, if you really get close to those paintings, you can see the brush work and the texture and they’re even those things that we think of as 2D objects have a real dimensionality to them.  And when you begin to experience them in 3D you understand how they really exist in space.  I was at an event a couple of years ago where the Van Gogh Museum had 3D scanned a number of paintings, Van Gogh paintings in their collection and then had created with 3D printing both full color reproduction and full texture reproduction.  And so you could hang the painting in a space and you could tell when you lit it differently how the colors and the shape of the oil paint on the canvas changed.  The other thing that was incredibly disconcerting for someone who grew up with a lifetime of “don’t touch” museums is you could go up to the painting and you could touch it, you could feel it.  You could feel the brushwork because it was a reproduction, but it was an accurate reproduction.  And so it really gave you another sense of what the physicality of the object was like.

Steve Schindler:  And can you talk a little bit, Michael, about the concept of open access, because that’s what this project really is about?   What does that mean and what does that mean in the sort of history and context of intellectual property protection?

Michael Weinberg:  Yeah, open access is really about giving people access to their shared cultural heritage.  And so this is especially interesting in GLAM context because obviously GLAMs have all sorts of artworks that are modern and are actively protected by copyright.  So right that’s kind of one whole category of works from a legal standpoint.  But they also have a huge treasure trove of works that are well into the public domain.  And so the first step of open access is to say to those institutions you have these objects that are not currently protected by copyright.  They are shared by everyone.  What can you do to bring those objects, those works to people and avoid creating additional legal barriers to people’s engagement and use with them?  And so the first easy big step for open access is always thinking, how can we take these public domain works in our collection and make them available to people to explore and remix and build upon well into the future?

Steve Schindler:  So I’m wondering because museums, many museums now charge admission and even though they are stewards of cultural heritage, they are also running an operation and they need revenue and so they charge people to come and see these things.  And I’m just wondering what the balancing is or what you found it to be between making these objects available in a 3D format for free versus a potential revenue stream that sometimes these museums like to see?

Michael Weinberg:  Yeah, this is a constant conversation in open access.  Frankly this is a constant conversation in these institutions more broadly.  And I think if you go back and look at the original internal debates around making 2D digital images of the collections available online there are people who were concerned that putting pictures of works up on museums’ websites would mean that people wouldn’t come to museums anymore.  And I think what we’ve seen overtime is that there’s now an expectation that if you go to our website of a museum there’s going to be some images of what’s in their collection and that’s not really going to undermine people’s interest in going to see the original, going to see the real thing.  Going to see that piece in space, maybe in dialogue with other pieces in the collection.  The other part of this, and this is something that was actually surprising as I started to get much deeper into this work, is there are of course institutions that have a robust or a superficially robust licensing practice where they’re taking these images, they’re doing these digital reproductions and they’re licensing them to third parties to use them.  And one of the things that was surprising to me is there was a study done now about seven or eight years ago that found that the majority of licensing departments in museums actually cost more money per year in the staffing and overhead then they bring in in licensing.  And so when those institutions are saying well, we have these licensing departments and they’re bringing in revenue if we go open access we’ll lose revenue.  I think the first answer is in many situations open access actually opens up new opportunities for revenue.  But even before you get to that you should take another look at those departments and maybe consider whether or not they are a net positive or net negative on your balance sheet.

Katie Wilson-Milne:  So let’s say you’re visiting a museum’s website and you are going through these 3D open access archives or collections, what are you doing with these images?  Are you just looking at them and enjoying them as if you’re a visitor in a museum or are you using those images for as you refer to other opportunities or additional projects?  I’m just trying to get a sense of the need for this sort of open access and what people are doing with it.

Michael Weinberg:  Yeah, I think the answer is yes, all of the above.  On the easiest level you’re there and you’re looking at them and you’re just sort of seeing them, but if you aren’t able to go, like maybe right now you’re unable to go to those institutions, you can see them.  Also the high resolution scans allow you to get much closer to many of these objects than you’d ever be able to get in a museum setting.  So it’s sort of not just looking as if you would look in the space but looking in a completely different way that lets you get really up close to fine details.  But beyond that there are people who were doing additional work.  I mean, you see situations where on a scholarly side people are taking these 3D models and doing very high level analysis, comparison analysis to understand how different works relate to each other, how they change over time, even how they were constructed based on the brushwork or in the context of a sculpture, the marks as the material was removed through chiseling or whatever else was being done.  And then you also get other users.  You have situations where people are building a virtual space for a video game or for an online interactive space and they want to be able to really build it out in a way that is accurate and that is precise, so they use those scans for that kind of work.  The last piece of this—we think of these as digital first and I think that’s probably right, but there are many situations where people are then creating replicas, either exact replicas or remixed replicas.  So you see people who are just making replicas for the sake of making replicas.  You also see a lot of this being used in accessibility programming.  So if there are patrons who are coming who have limited vision or patrons who have other learning-based needs being able to give them either an exact copy that they can feel or an interactive copy that will give them an opportunity to explore is possible because of this digitization.  There’s a piece that is actually— was scheduled to be installed in the Smithsonian that now is being delayed, but it was a replica of an ancient Chinese sculpture.  And in addition to making the replica, they incorporated a bunch of sensor points on the sculptures so you could touch it.  And when you touch certain points there would be audio descriptions of what was there.  And all this is possible because you start with a high quality scan, a 3D version of it and that allows people to use it as a jumping off point for all sorts of new kinds of interaction.

Steve Schindler:  I know we said that we were taking a break from our podcast about pandemics, but it does strike me also that at this particular time when we’re reevaluating our own access to these institutions that the availability of this kind of technology can be pretty groundbreaking.

Michael Weinberg:  Absolutely.  I mean this is a time now where it’s not like any of the online parts of museums are competing with their in-person opportunities.  For us in the United States right now you can’t go to these institutions in a lot of cases and so the only way to access and explore and understand these is to be able to do it virtually online.

And that’s whether you want to do it casually on a Saturday afternoon or if you are a teacher or a professor trying to build an online curriculum for the upcoming semester or for the upcoming fall.  Knowing that you can give your students access to these works in a way that is meaningful and useful becomes really important and your only option for showing them the work directly.  Because you can’t go and just go on a field trip to the museum.

Katie Wilson-Milne:  Alright, Michael, so I think you’ve put forth a very compelling case for why this is a social good and is useful and enhancing for the public.  But we’re lawyers so we want to talk about challenges and impediments, and so let’s take a step back and talk about the legal backdrop for this type of digitization copying and display.  I think in many ways this is going to be very similar to conversations we’ve had about 2D copying, and if it’s not let’s talk about those issues as well.  The open access portion of it I understand to just be a choice that the museum is allowing all of its labor put into this 3D digitization process to be used by anyone for whatever purpose.  And there’s not really much law around that other than a business choice to leave that open assuming that all the objects, 2D or 3D art or cultural heritage, useful or not, are all in the public domain.  So that there’s no underlying IP ownership at play then GLAM institutions can just go off and make free whatever they want to make free.  But are there situations in which copyright, in which the US and most other countries in the world provide authors of artistic works with rights called a copyright, are there issues in this 3D digitization space, which is a form of copying, where those copyright issues do come into play and are concerned?

Michael Weinberg:  Yeah, there are some spaces.  I think that your presumption is correct that when you make a reproduction of a public domain work and your goal is to make as perfect a copy as possible then at least in theory and based in case law in the United States, there’s no additional rights.  And so that’s the kind of starting point.  Now that does not mean that there are plenty of institutions even in the US who will assert a right whether or not they have it.

Katie Wilson-Milne:  I want to talk about this, but let’s talk about the underlying copyright first, just so it’s clear for our listeners.  Because I definitely want to talk about the secondary rights issue.  But in the initial situation are museums worried about rights infringements in their own creation of these 3D images?

Michael Weinberg:  In their digitization process?

Katie Wilson-Milne:  Yeah.

Michael Weinberg:  Yeah, I think generally not.  I mean obviously there’s an initial question as to—a sorting question — as to works that are in or not in the public domain, but if the work’s in the public domain then I think that most institutions can begin from the assumption that it’s free to be digitized and they can do as they see fit.  There are obviously secondary issues potentially but taking the easy example of a Greek sculpture that’s been around for thousands of years there are no meaningful rights attached to that sculpture.  And so the act of digitizing it is not going to create any kind of problems for that institution.

Katie Wilson-Milne:  In the same way that that sculpture could be used in a movie or it could be copied by another artist or could be used in an ad, right?  There’s no limitation now on the use of that object, because it’s in the public domain.  And when we say public domain we mean it’s not covered by copyright, either because it never was or that copyright term has expired.

Michael Weinberg:  Yeah, that’s exactly right.  If it’s in the public domain, it’s available for anyone to do whatever they want, including making a 3D scan of it.

Katie Wilson-Milne:  In my mind there’s two main ways something is in the public domain: one is it was under copyright but the term of copyright has expired, which now in the United States is the life of the author plus 70 years.  Or it was never subject to copyright because it wasn’t “an artistic or creative work.”  It was a natural specimen or a useful object, or something like that which the law in the United States, and of course it’s slightly different in different jurisdictions, would say is never protectable.  Do you see both of those come into play in terms of why the copying isn’t an issue?

Michael Weinberg:  Yeah, absolutely.  There’s even a third category of the work is so old that predated the concept of copyright.  But setting those aside yeah, it’s old enough that the copyright has expired.  Or you have situations where the object is just not eligible for copyright protection at all and so it didn’t pass through a period of protection it was potentially in the public domain from the moment it was created.  And you could think about that and especially those useful objects when there are pieces in collections that are functional objects, they’re historically relevant but they aren’t artistic in a way that’s protected by copyright.

Katie Wilson-Milne:  Are there GLAMs, I’m thinking art museums, that are doing this in the more contemporary space where they are dealing with rights holders because they’re dealing with modern or contemporary works of art?    

Michael Weinberg:  Not at scale and certainly not at scale in 3D.  There are some institutions that are working with artists to digitize works that are protected by copyright in their collection.  Those are almost always in the 2D space.  Very rarely — I can’t think of an example off the top of my head where that’s part of an open access program.  It may be part of a program trying to make the works more available to the public, but not in a way that waives or eliminates any of the underlying rights.

Steve Schindler:  Right, but is there a distinction and I’m curious whether there are programs in for-profit galleries that are using this technology but not in an open access manner?

Michael Weinberg:  Yeah, as you think about high art galleries trying to — especially right now trying to make the works they have in their collections as accessible to their market as possible, they can sometimes be on the cutting edge of what it means to digitize those objects to make them available to collectors essentially as an inducement as part of a sale process.  But I think that right now we don’t see large public examples of that largely because I suspect that those institutions, they’re not driven by the same impulses and motivations.  And for them most of their digitization needs are potentially still being met by 2D images.  You take the pictures you do a tour or something like that and you achieve most of your goals.  That may be changing as we’re in the middle of the pandemic, but it’s not something that I was seeing a lot of generally out in the world.

Katie Wilson-Milne:  Right.  And to be clear if a gallery or a museum was doing 2D or 3D digitization they would have to seek permission from the rights holders as a preliminary step if those works were not in the public domain.  So it’s not that they can’t do this kind of work, it’s just there’s an extra hurdle and it’s a legal administrative hurdle to get all these permissions from the get go.

Michael Weinberg:  Right, exactly.

Katie Wilson-Milne:  And I think in the museum context there’s a bit more of an institutional wherewithal in place to know when rights need to be requested and when they don’t.  But in the for-profit context, in the gallery context or in the non-institutional nonprofit context, we see certainly and I’m sure, Michael, you’ve seen some of this, that there is more confusion and irregularity in the way that those rights are either requested or not requested and the way that custom in the art world overlaps with what the law would technically either require or highly recommend.

Michael Weinberg:  Yeah, I think that’s right.  I think the fact that many of the for-profit institutions are working with works that are protected by copyright adds another layer of complexity initially.  There are more rights involved, there are more people involved.  And then when you layer on top of that the other kinds of things that those institutions are oriented towards can certainly complicate things in a number of ways.

Katie Wilson-Milne:  Moving to the second layer of rights, we see a lot of confusion between the underlying rights, which is the rights that the creator of the underlying artwork or object has, the original object, and then there’s kind of different levels of creation, right?    There’s the copying and who’s doing the copying and do they have rights in the copy as distinct from the underlying object, or is the copy “not a copy?”  Is it a creative rendering in and of itself of the original object, and so is it entitled to a new level of work that the “copy” or what the new creator or appropriator has?    And I think this causes tremendous confusion whether everyone in that chain actually has rights, we’re talking about copyrights here, to their piece on the copying chain is another question.  And I know we’ve talked before Michael about this and it comes up clearly in the law in New York in the 2D copying context.

But I wonder if you can talk a little bit about that here because museums are not only in the clear because they’re dealing with works in the public domain they’re now engaging all these different actors to create these 2D or now 3D images of the objects.  And are there rights issues in creating these digital copies?  And are there rights issues when then the museum goes and puts it on the website and is allowing the public to use their own potential IP?    

Michael Weinberg:  Yeah, I think you’re right to think about this as almost two questions.  The first question is, what is good responsible lawyering when you’re doing something like this?  And to the extent that it is easy to get agreements from everyone involved in the tool chain, you might as well do it.  Because regardless of the ultimate posture and rights that people have it’s much easier if someone comes to you and says, “I think you’re infringing on my rights.”  To go to them and say, “you signed this piece of paper.”  As opposed to saying, “Well, let’s go and litigate it to find out if you really did.”  But to the extent that you don’t have that documentation for whatever reason, then the second order question is, “Okay.  Well, what rights do people really have?”  Right, what do you really have to worry about?  And yeah, in this case to simplify the problems, you’re talking about things that are already in the public domain, so you’re just talking about who’s doing the digitization.  Certainly in the United States, the person who’s doing the digitization or the team that’s doing digitization aren’t viewed as having additional rights, and this is a classic kind of sweat of the brow justification.  It takes a lot of work, a lot of technical skill and expertise to be able to make an accurate reproduction of a physical object in a digital space.  But your goal is to make it as  exact a copy as possible, which the goal therefore is to eliminate any creativity or creative decision that you might have.  And so in the absence of that creativity there’s not a copyright there.  This is something that is historically a bit more complicated and ambiguous in Europe, but is part of the European copyright overhaul that passed last year.  There is an article that always attempts to clarify EU law that creating an exact or an intended to be exact copy of a public domain artwork does not create a new copyrightable work.

Now there’s some ambiguity in the language and then obviously whenever you’re talking about EU law, there’s the translation issue into national law.  But, at least conceptually, it was a recognition by the EU of this idea that you don’t want to create a situation where people who create a digital version of a public domain work suddenly get new rights and complicate our collective ability to make use of those works.

Steve Schindler:  So is there no creativity then in the creation of these digitized works?  It sounds like what you’re saying although not being part of or familiar with the process of how these digitized objects are created, I don’t know.   It does at least intuitively seem to me that there could be creative decisions in the way that the works are put forward and displayed.

Katie Wilson-Milne:  Especially because I think it’s 3D, right?  We get, we’re talking about the law sort of laying this out for 2D objects where a photographer is hired to photograph different paintings for a catalog, right?  And as you said, Michael, and as the courts have said, you can’t really claim to be doing a perfect job of copying and then claim that you’ve put your own creative mark on something.  You can’t have both, so it’s one or the other.  That makes a lot of sense I think intuitively and legally in the 2D context, but I wonder, as Steve said, does that necessarily translate to the 3D context as easily when someone’s necessarily moving around an object and choosing how to move around it?

Michael Weinberg:  I think the way to think about it is the presumption is certainly that there aren’t creative decisions.  And again the person’s moving, if you think about a simple example where the purpose is to make as close to a digital replica as possible, they’re making a bunch of decisions but those are largely technical decisions to try and capture the object as accurately as possible.  And you could certainly characterize that as creativity, but I think that for the same reason that a photographer who’s taking a photograph of a 2D image and is lighting it in a way to make sure that the color is balanced correctly and there’s not glare from the studio lighting, they’re making more technical decisions than creative decisions.  With someone who’s doing 3D digitization, the choices they are making are to capture the object as accurately as possible.  Now there’s certainly situations where people are doing 3D digitization where either they intend to then manipulate the digital object in all sorts of creative ways, and that gets copyright protection.  And there are some examples of people doing digitization in a way that is intentionally creative.  This is basically the equivalent of glitch art.  So one thing about 3D digitization is that it’s bad at highly reflective surfaces.  And so there are people who digitized things like a silver candelabra that the file comes out looking very distorted and bizarre and inaccurate.  And in that case, I think there’s a very strong argument for creative decision making, but that entire exercise is a fundamentally different exercise than making a digital copy for an archival purpose that most of these GLAM institutions are engaged in.

Katie Wilson-Milne:  So the museums let’s say who are doing this type of work, is it the case then that they have really no rights to consider at all?  They’re not worried about violating someone else’s rights.  They’re not worried about having any rights themselves it’s just a rights-free zone of creation and copywriting and publication really.  Is that fair?

Michael Weinberg:  I think for an IP standpoint that’s probably the best place to start.  You can think about secondary rights of publicity type issues for some more modern artists, but I think the real right at play is a right of access.  And this is where a lot of these institutions who are less interested in open access tend to orient themselves.  And they say look whether or not this is protected by copyright you have to agree to these terms to be able to access the files, and through our terms and conditions, we’re going to at least attempt to limit the use or place requirements on the use of these objects.  That’s a much more straightforward way to at least attempt to exert some control over the files.

Katie Wilson-Milne:  Yeah, via contract.  I read the GLAM 3D project as encouraging institutions not to do that.  That they certainly could have a contractual agreement with the viewer whereby to access the file the viewer enters into a contract and promises to limit their usage.  But is the idea of open access that institutions pledge not to do that?

Michael Weinberg:  Yes, exactly.  The idea is the institutions pledge not to do that, and I think that the presumption in the US and the EU and many other jurisdictions is essentially you are in a space without rights.  The recommendation for any institution pursuing open access is to use a Creative Commons CC0 Public Domain Dedication or some equivalent mostly to clear up any ambiguity.  I mentioned some ambiguity in the EU, you could see a law evolving in the future.  And I don’t think the absence of that kind of CC0 Public Domain dedication means that the institution has rights, but the presence of it eliminates any ambiguity that there may be rights or there may be a reinterpretation of rights at some point in the future that would complicate public access to it.

Katie Wilson-Milne:  Can you describe what that dedication is for our listeners?

Michael Weinberg:  Yeah, so that dedication is essentially what you’re doing is you are waiving any rights that you may have and dedicating the file the work to the public domain.  And so you’re saying to the extent that I have any rights I am waving all of those rights, I am dedicating this to the public domain.  Now if you have rights that’s a really important dedication to say I’m waiting my rights, but in situations like this it can be useful even if you don’t have rights just remove any ambiguity or any concern for users.   Because you can imagine as lawyers all sorts of situations where a lawyer for a user isn’t confident to the level of their comfort that there aren’t going to be some sort of random person jumping out asserting some sort of rights.  And so that public domain dedication is a comfort to a user’s lawyer to say, “we aren’t going to rely on our understanding of the law right now that says that we don’t have rights, but we’re going to actively waive any rights that we may have now or even in the future.”

Steve Schindler:  So how much of this is the giving of comfort to lawyers and people like us and how much of it is a political statement in a sense?  That we are supporting open access as a concept, as the right thing to do.

Michael Weinberg:  I think it’s both, but I think it’s definitely reasonable to view open access as a political statement, as a cultural statement to say these are our values.  Our values as an institution are that our role in society is to make these works available to everyone.  And our understanding of what that means is to not just passively do it or be backed into it, but to take these active steps to invite people to make use of the works and to really make it easy for them to do it.  And in that sense it is very much a political statement about accessibility, about the nature of culture and creativity in society.

Katie Wilson-Milne:  Michael, is there a distinction that’s important either politically or legally between the digitized object itself and the metadata?  The argument you laid out is pretty clear that if you’re copying and you’re doing it right, you’re really just making a totally uncreative loyal copy of an original object.  But the metadata would seem to be a bunch of choices that are being made about how to put facts and information together that then the viewer is going to have access to.

Michael Weinberg:  Yeah, I think it’s a good thing to point out is that there is a real legal distinction between the digital object, the file for the object itself, and the metadata.  And I think that you could have all sorts of edge case arguments about why any specific metadata was or was not protectable by copyright or some sort of use was infringing or not infringing.  But I think as a general statement it is likely that most metadata is protectable by copyright.  And so then as an institution you’re making a second choice about, okay so you’ve digitized this object, you’re making it available under an open access program, you’ve collected a bunch of metadata through whatever internal process you have and developed it.  Do you include that meta data as part of your release?  And if so, do you take that follow up active step to do it?  I think it’s really important as part of a fully developed open access program to not just make the file and the object available in space but to give people as much context as possible.  But it is an additional element that you need to consider as you’re building that program.

Steve Schindler:  So as you’re working with these GLAM institutions and working with objects that have cultural significance, are there other sensitivities that you are grappling with?    And I’m thinking particularly how sensitive institutions are and peoples are about who culture belongs to, who objects belong to.  And I would imagine if you’re taking an object that was created by a group of people or a culture that the way you treat that object, even the way you reproduce it has either some legal or policy complications.  And can you address that a little bit?

Michael Weinberg:  Yeah, this is a big part of the conversation, and I think that there are at least two versions of this problem.  The first is the one that you identified, there is these are cultural works that are important and they’re important to different communities in different ways and for different reasons.  And so there are all sorts of potential sensitivities around who’s using these works, how they’re using these works — going back to the metadata question — what kind of data comes with the objects?    One of the projects that we collaborate with at the Engelberg Center is a local context labeling project that’s really designed to give that additional cultural context of all these works.  And so figuring out how to bring all that context together and then put it out in the world is really important, because you know that when you put things out in the world on the internet all sorts of people will engage with them in all sorts of ways.  Some of them will be ways that you celebrate and some of them will be ways that maybe you don’t celebrate as much.  I think one of the things that we talk about a lot in the open access context is it is unlikely that open access is going to be the but-for cause of those kinds of unwelcome uses.  If somebody is interested in making an unwelcome use to your community of some kind of object they probably are not going to be super hung up on the copyright intricacies of what’s going on.  And so it’s unlikely that an open access program will make those kind of uses exist or not exist.  But sometimes what an open access program can do is at least provide the additional context around the object.  But I don’t think that anyone is suggesting that an open access program will then prevent any kind of use that you are not excited about of the work.

Katie Wilson-Milne:  So there are a couple of other attendant either rights scenarios or legal concerns that this discussion is making me think about that aren’t copyright and in the realm of cultural property or moral rights.  And on the one hand there could be cultural property or moral rights concerns even in a space where there’s no copyright concerns in the sense of the property, right, we identify in the United States that need to be addressed.  And then related to that and non-legally, when a museum is digitizing its entire collection for the entire world to see it also opens up a space for not only a lot of criticism of the type that Steve just described, but the discovery by governments people’s individuals of objects that raise problems either legally or morally.  And then it can open up the institution to a lot of criticism that in a non-digitized world it would never have been under, because people across the world can’t be researching the archive of this major museum in New York or London in the way that they can be once the museum decides to open up its entire archive.  And we’re thinking of principally now objects that are of cultural significance so they could be artifacts or things that were looted/purchased or taken from colonized parts of the world during very sensitive periods of time.  And I wonder if that is a concern of institutions who are doing this, sort of thinking through the implications of really making transparent everything in their collections?

Michael Weinberg:  Yes, so there’s a very active debate.  I think if you talk to people doing digitization at institutions, they are very aware of works that they are prioritizing to digitize and works that they aren’t as urgent in terms of digitization because of those sensitivities.  There’s actually a very active debate right now in the EU centered on some of the French institutions that have large collections of African art for just the reasons that you flagged because of that colonial history.  And those institutions as part of a larger French cultural effort to digitize works in their collection, there are people both within the EU and within the origin communities of these works who are saying these museums don’t really have the right to decide if these works should be digitized and made available to everyone.  And if you think about that question narrowly through the lens of a copyright lawyer, you say well look they are in the public domain, anybody can do whatever they want.  But obviously there’s a much larger cultural question around that.  That’s a question that in a lot of ways is bigger than the open access part of it.  The open access part of it is a component of it but it’s a conversation that is going on for many other reasons.  And the open access part of it won’t solve it, but also probably won’t completely hinder it.  This is, and again I mentioned earlier, one of the — this local context in the local context labels effort is an effort that’s really designed to bring that additional context to these works.  And part of the operating theory is that making it easy for good actors to be good.  And the idea that if you’re someone who wants to respect the cultural history of these works, the first thing you need is the information.  And so maybe institutions should do a better job of bringing that information forward.  But that is again outside of the primary scope of open access.  Not that it shouldn’t be a consideration but it’s not a problem that open access will solve.

Katie Wilson-Milne:  You know we’ve talked about museums a lot on this podcast.  A way in which museums are ironically both responding to the demands of the time, but by doing so, by responding appropriately they are actually undermining or threatening their own existence as they’ve always known it.  Or inviting criticism in in a way that it really does change the sense of value that they’re providing.  It’ll be interesting to see how these digitization projects change the conversation about what belongs to who and what objects are problematic.

Michael Weinberg:  Yeah, and I think one of the things that we’re working on at the Engelberg Center a lot is this — there’s this idea in the open access community, I think that especially in the early days you’re a decade ago, that people who were opposed to open access were doing it because they were against openness and against this sort of common shared cultural heritage.

Steve Schindler:  And who were those people, just generally, I’m curious?  What constituencies did they represent?

Michael Weinberg:  I think at the time open access was in its way a revolutionary view and so many of the organizations, many museums, institutions, stewards of culture who saw themselves as being in the brightest light responsible for maintaining that culture, I think in a less charitable light, the controllers of that culture.  People who felt there was a real curatorial presentational role of these institutions who were concerned about this idea that you would just let anyone in and kind of do whatever they want with it, that was not a reasonable approach.  And so I think that again kind of in the formative moments of this community, there was this idea that if you were raising concerns about open access, it was almost being done in bad faith because you just disagreed with the premise.  One of the things that we’re seeing now as open access has become more successful is you get communities who say, “we support open access, we like the ideas of open access, but we have these concerns.  We have these concerns about who gets to decide where these cultural objects came from.”  And one of the challenges in the open access community right now is reorienting its world view to be able to recognize those concerns are being raised from within the tent and from people who are generally inclined to support open access but have concerns, as opposed to being raised from outside the tent of people who reject the underlying premise.

Steve Schindler:  Are there other constituencies now that you find are in opposition to this project?  We had talked a little bit internally about donors, what about is there any resistance by the people who have given objects to museums to making them so widely available in this kind of format?

Michael Weinberg:  I’m sure there are internal discussions at all these institutions, but it is rare that an institution appoints to donor concerns as their primary reservation.  Now part of that may be a self-selection issue where when the institution is drawing up their list of privatization for digitization they just — they avoid things that they know that there are donors who might raise concerns or donors who are still alive.  And I think that one of the things to be aware of in this 3D context is right now many institutions have assembly line processes for doing 2D digitization at scale.  And we’re still not really there yet for 3D digitization.  It’s still a reasonably bespoke process, and so as a result of that, even in institutions with deep resources like the Smithsonian Institution, are doing fairly small numbers of digitizations so they can really focus on works that are the least controversial and the most useful.

Katie Wilson-Milne:  So, Michael, last question: in the GLAM guidelines on the GLAM 3D website you urge institutions to avoid what you call an “easy no,” and I was really struck by that because I think that concept of “easy no” can come up a lot, especially with lawyers, when you can identify numerous problems and then you just tell your clients, “Look there’s so many problems.  Do you want to do this?” And it’s just hard to sort through, instead of figuring out which ones really matter or how they can be fixed.  So what does that mean in the GLAM project context?  What is the “easy no” and why is it important to avoid it?

Michael Weinberg:  Yeah, I think that you’re right to think about it as a lawyer you can analyze a problem and raise all sorts of edge or not so edge concerns.  And so if you’re looking for a reason to kill an initiative you can find them somewhere.  You can say what if somebody takes this and they turn it into some giant Nazi rally piece?  Or what if somebody makes it and gets hurt and we have liability?  I’ve had concerns about counterfeiting.  All sorts of really, I would think of as edge concerns that don’t really take into account any of the benefits of the program.  And so as a lawyer working with these institutions, if you are so inclined you can dig into that bag of tricks and say, “Well, there’s all these horrible things that could possibly go wrong when you put things up on the internet.” I think a more collaborative and ultimately productive approach is to say, “Okay, well what are the goals here?”  And to be responsive to your client and to say, “look there are these possibilities of things that could go wrong, but let’s try and understand the risks and balance them against the benefit.”  And if we’re willing to go forward, because we think the benefits outweigh the risks, then really embrace the benefits and not try and over-lawyer it, not try and put 1,000 disclaimers on it and do other hedging things that will really undermine the ultimate goals of openness.  And not just reach that easy no, to say well here’s 1,000 things that could possibly go wrong.  But instead be a real partner in the process to find a way to make this work in a way that everyone fully understands what they are doing but really are able to achieve the primary goals of the project.

Katie Wilson-Milne:  Good life advice, thank you.  Alright, Michael, well thank you so much for joining us.  This was very interesting.

Steve Schindler:  Yeah, it was really great.

Katie Wilson-Milne:  We’ll post your information and some related resources in our show notes.

Michael Weinberg:  Thank you so much.  And I will say one last thing is this glam3d.org site, we’ve designed it to be an ongoing evolving resource, so if you go to the site and you realize it’s missing something or it could use more information, there are easy ways to contact us so we can keep it up to date and as accurate as possible.

Katie Wilson-Milne:  Excellent.

Steve Schindler:  Okay, great.  And that’s it for today’s podcast.  Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com.  And if you like what you hear, give us a 5-star rating.  We are also featuring the original music of Chris Thompson.  And finally we want to thank our fabulous producer, Jackie Santos, for making us sound so good.

Katie Wilson-Milne:  Until next time, I’m Katie Wilson-Milne.

Steve Schindler:  And I’m Steve Schindler, bringing you the Art Law Podcast, the podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The information provided in this podcast is not intended to be a source of legal advice.  You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose,  and should always seek the legal advice of competent council in the relevant jurisdiction.


Music by Chris Thompson.  Produced by Jackie Santos.