Dear all

As a number of people have noted already, it is indeed disappointing that the British Museum has released these images under a non commercial licence, given the obvious restrictions to people actually accessing and using them. Whilst staff at Wikimedia UK have many partnerships within the cultural sector, including larger institutions, the BM is not currently one of them. However I will get in touch with them and point out the issues with the licence they’ve chosen. If anyone has any contacts at the Museum they would be able to share with me that would be very helpful - and of course, you are also welcome to lobby them as individuals. 

I’m not sure that I quite agree with the characterisation of Wikimedia UK as “advocating for a position at variance with that of the wider movement when it comes to claiming non commercial copyright on out of copyright material”. Indeed, in a talk I gave at a Westminster Media Forum policy event on the EU copyright directive last year, I said:

“Access to and re-use of centuries old paintings, part of our cultural heritage, is being increasingly restricted by an array of laws and in-house rules within cultural institutions aiming to maintain control of their digital copies. This causes many classical works, for instance, to be unavailable to the public online, despite them being part of the public domain.  

Part of the social balance under copyright and related rights is that at some point the exclusive economic rights expire and the works become part of our shared cultural heritage. This makes up a large portion of the public domain and ensures wide access to our culture and the freedom to create and innovate. Unfortunately, in the past decades we have seen increasing attempts to restrict our cultural heritage by claiming copyright on public domain works, or by establishing new rights on exact digital copies of old works. These practices complicate and sometimes prevent the digitisation of and digital access to our culture. 

The [EU copyright] Directive therefore provides for a safeguard of public domain works. We must make sure no new rights are applied to digital copies of artworks whose copyright has expired. This includes both no copyright term extension for such rules and no related rights. The current situation in the UK on this is quite inconclusive, with works that would be considered to be public domain under US law potentially subject to copyright under UK law. Indeed the courts in the UK traditionally applied a very low test for photographic originality, based on the "skill and labour" required to capture the image. In the IPO’s updated copyright advice notice in 2015, it acknowledges that there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. However it also states that according to the Court of Justice of the European Union, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. This higher standard should be unequivocally applied to UK cultural heritage institutions, who might be inadvertently engaging in copyfraud.”

Previously, at a ministerial roundtable on the directive, I raised this very point with the Minister (at the time), who seemed completely unaware of the practice of copyrighting digital reproductions of public domain works, and remarked that this was certainly “outside of the spirit” of existing law and proposed legislation. Both of those policy interventions point to our general approach towards non-commercial licenses and to issues around copyfraud. 

However it’s true that we do, as a chapter, work with a broad range of institutions, some of whom claim non commercial copyright on out of copyright material. We challenge this where we see it, albeit usually through meetings and discussions, rather than in public fora. Indeed, much of our work with the cultural sector involves this kind of internal advocacy, and we can see the impact of this in the institutions who go on to change their policy and practice and release a substantial amount of content onto open licences. We also continue to talk to grantmaking organisations to encourage them to move away from non commercial licences for themselves and their grantees - although again, we primarily do this in collaboration/discussion rather than on a public forum. It’s probably fair to say we take a carrot, rather than a stick, approach on this - but I think that’s a question of tactics, rather than of policy.

Having said all of that, I don’t want to shut down debate and would be very happy for there to be questions and discussions on this at our next AGM (which is indeed going to be online, for reasons that are clearly outside of our control). As a staff team we have recently started planning this event, which is going to be on Saturday 18th July, and have already started thinking about how we ensure the Q&A part of the day is as productive and inclusive as possible, particularly given the unusual set up.

To come back more specifically to the BM issue, I will follow this up next week. I think it will be relatively easy for me to find someone to talk to there but as I say, if anyone does have an existing contact/relationship at the museum I would be very pleased to hear from you.

All best wishes

Lucy