Volume XVIII, No. 1 The BRITISH ART Journal The BRITISH Adnhdesign.com/BAJ/editorial181.pdf ·...
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Volume XVIII, No. 1 The BRITISH ART Journal Editor Robin Simon Associate Editor (Reviews) Simon Poë Associate Editor (Books) Martin Hopkinson Consultant Editor (USA) Dr John Wilson [email protected] Northern Europe Correspondent Nic Peeters [email protected] Art Director David N Hodgson Editorial Board Dr Martin Postle Paul Mellon Centre for Studies in British Art, London Professor Allen Staley Columbia University, New York Emeritus Professor William Pressly University of Maryland Professor Emeritus Aileen Ribeiro London Professor Emeritus David Bindman London Graham Beal Detroit Olivier Meslay Dallas Museum of Art Professor Linda Colley Princeton University Dr Christopher Brown Ashmolean Museum, Oxford Professor Michael JK Walsh Nanyang Technological University, Singapore Professsor Paul Binski Professor Emeritus David Watkin University of Cambridge Dr Charles Saumarez Smith Royal Academy of Arts, London Professor Edward Chaney Southampton Institute Professor Emeritus Duncan Macmillan Edinburgh Professor Tim Barringer Yale University Professor Pamela Gerrish Nunn Christchurch, New Zealand Dr Timothy Standring Denver Art Museum Sir Timothy Clifford Dr Simon Thurley The BRITISH ART Journal A licence to print money, a licence to kill scholarship, at the Tate, the British Museum and the National Portrait Gallery Compare two statements, beginning with the National Gallery of Art, Washington: NATIONAL GALLERY OF ART . OPEN ACCESS POLICY FOR IMAGES OF WORKS OF ART PRESUMED IN THE PUBLIC DOMAIN With the launch of NGA Images, the National Gallery of Art implements an open access policy for digital images of works of art that the Gallery believes to be in the public domain. Images of these works are now available free of charge for any use, commercial or non-commercial. Users do not need to contact the Gallery for authorization to use these images. They are available for download at the NGA Images website (images.nga.gov). Now the Tate: One of Tate’s core goals is to promote enjoyment of, and engagement with, art and artists within our collection, to audiences wherever they are in the world. As part of this, we are releasing some of our Archive collection digital content and some items from our main Collection for use for non-commercial and educational purposes under a Creative Commons CC-BY-NC-ND 3.0 (Unported) licence. The aim is to provide a simple, standardised way to grant copyright permission for the use of Tate’s intellectual property (its photography) and artists’ creative work for specific uses only, whilst safeguarding Tate’s own income from its IP in commercial contexts whilst ensuring artists, copyright holders and Tate get credit for their work and are protected by law. And so what, then, is ‘commercial’ use? The Tate begins: ‘Creative Commons defines commercial use as “reproducing a work in any manner that is primarily intended for or directed toward commercial advantage or monetary compensation”.’ No-one could argue that academic work in particular is ‘primarily intended for or directed toward commercial advantage or monetary compensation’ and so, if this understanding was accepted within its licence, the Tate would not be able to seize fees for the vast majority of (academic) publishing about its collections. And so it simply invents its own definition, while still invoking the Creative Commons licence, bringing academic work within ‘commercial use’: Tate further defines commercial use [our italics] … [as] use on or in anything that itself is charged for [!], on or in anything connected with something that is charged for, or on or in anything intended to make a profit or to cover costs [!]… Tate would usually regard the following uses of Tate imagery as commercial activity: use online or in print by commercial organisations, including (for the avoidance of doubt) trading arms of charities; use on an individual’s website in such a way that adds value to their business, or for promotional purposes… use of images by university presses [!] in publications online or in print… unsolicited use of images by news media, including front covers and centre-page spreads. And so any publication, however useful to the Tate in expanding public knowledge and understanding of works in the collection, if it is to avoid the hefty fees that the Tate imposes, must needs be handed out free and never, ever, published by a university press… This attitude is disgraceful. Alas, the British Museum, which under Neil MacGregor and Antony Griffiths had a praiseworthy free use of images in Prints and Drawings, has followed the Tate’s lead and now invokes a Creative Commons licence with the purpose of imposing reproduction fees, as does the National Portrait Gallery. The Tate has given up on attempts to assert copyright in works of art that are actually out of copyright, and instead asserts that it is now, rather, protecting the copyright of its photographs of those works, defining them as its ‘intellectual property’ (IP) in what is meant to be a nifty sidestep. That cannot, however, avoid the fact that, as we have pointed out in these pages, this is unsound in law, in view of the purely mechanical nature of the image-recording operation. Fascinatingly, the NPG seems to have a different understanding of the matter, asserting in a letter in response to an enquiry: ‘The National Portrait Gallery owns the copyright of the majority of the images in its collection. Even if an image is “out of copyright”, as it is still part of the collection of the National Portrait Gallery, then copyright continues to be managed by the Gallery.’ This runs directly contrary to copyright law defined in the NPG’s own ‘Introduction to copyright’: ‘Under the UK Copyright, Designs and Patents Act 1988 (as amended), copyright protects original literary, dramatic, musical and artistic works; films; sound recordings; broadcasts and typographical arrangements… Copyright usually lasts for the creator's lifetime, plus the end of 70 years after their death.’ Precisely. We note that works under copyright must be ‘original’ in UK law. But the photographs of works in all these collections, if they are to the job they are required to do, must needs exclude originality and remain precisely faithful to, yes, the original works – most of which are, of course, out of copyright. The adoption of Creative Commons licences has nothing to do with the law of copyright in the UK. It is simply a device adopted in order to allow these museums to charge for the reproduction of out-of-copyright works of art in their care, which, moreover, belong to the public they are charging for use. There seems, frankly, no good reason for this restrictive practice if these museums are indeed concerned, as the Tate puts it, ‘to promote enjoyment of, and engagement with, art and artists’. Could it be, then, that its purpose is to perpetuate the employment of the gallery staff who collect the money? Any fees collected will be largely cancelled out by costs: salaries, administration, office space, equipment, pensions and so on. Any profits are likely to be minimal and of no real help to the institution. Above all, they are obtained at the greatest possible cultural and educational cost. For a museum that is not a profit; it is a loss. For whose benefit do these museums exist? Do they exist for the benefit of the staff who run them or for that of the public and the world of knowledge they were created to serve? Do they aim to enhance knowledge of their collections? If so, why do they go out of their way to penalize any publication or form of dissemination of images that does that work for them? The use of images of works of art in ‘news media… front covers’ or even on biscuit tins, bathmats or shower curtains, all serve the same purpose, which, to repeat, the Tate defines as ‘to promote enjoyment of, and engagement with, art and artists’. Strange to say, these ‘Creative Commons’ licences originate in the USA where, however, the position, as set out by the NGA above, is clear and simple, and directly contrary to that of these UK museums. No wonder the Tate has to add so many subordinate clauses and pseudo-legal assertions to the provisions of the Creative Commons licence it invokes. It would be a far, far better thing if these pointlessly rapacious museums in the UK adopted a different, transatlantic, model: that of the National Gallery of Art in Washington and of countless other museums throughout the USA. What are they afraid of? And who paid for digitizing their images? It so happens that the Paul Mellon Centre for Studies in British Art handed out its largest ever grant, £500,000, to the British Museum to digitize its British drawings, surely not with the intention that the museum might now charge for their use. The Mellon Centre’s parent institution is the Yale Center for British Art –where images of artworks in the collections are offered free for any purpose. To return to the Tate… If, say, you look up Arthur Melville on the Tate website you will find that his biography, far from being written by a curator, as one might hope, is simply a link to Wikipedia. By what right? Yes, by yet another Creative Commons licence which, luckily for the cynical Tate, states on the Wikipedia site that anyone may ‘share … copy, distribute and transmit the work… for any purpose, even commercially’. Now that sounds like a sensible licence.
Transcript of Volume XVIII, No. 1 The BRITISH ART Journal The BRITISH Adnhdesign.com/BAJ/editorial181.pdf ·...
Volume XVIII, No. 1 The BRITISH ART Journal
EditorRobin Simon
Associate Editor (Reviews)Simon Poë Associate Editor (Books)Martin Hopkinson
Consultant Editor (USA)Dr John [email protected]
Northern EuropeCorrespondent Nic [email protected]
Art DirectorDavid N Hodgson
Editorial Board
Dr Martin PostlePaul Mellon Centre forStudies in British Art, LondonProfessor Allen Staley Columbia University, New YorkEmeritus Professor William Pressly University of MarylandProfessor Emeritus Aileen RibeiroLondonProfessor Emeritus David Bindman LondonGraham BealDetroit Olivier MeslayDallas Museum of ArtProfessor Linda Colley Princeton UniversityDr Christopher Brown Ashmolean Museum, OxfordProfessor Michael JK WalshNanyang Technological University,SingaporeProfesssor Paul BinskiProfessor Emeritus David WatkinUniversity of CambridgeDr Charles Saumarez Smith Royal Academy of Arts, LondonProfessor Edward ChaneySouthampton InstituteProfessor Emeritus DuncanMacmillanEdinburghProfessor Tim BarringerYale UniversityProfessor Pamela Gerrish NunnChristchurch, New ZealandDr Timothy StandringDenver Art MuseumSir Timothy CliffordDr Simon Thurley
The BRITISH ARTJournalA licence to print money, a licence to kill scholarship, at the Tate,
the British Museum and the National Portrait Gallery
Compare two statements, beginning with the National Gallery of Art, Washington:NATIONAL GALLERY OF ART. OPEN ACCESS POLICY FOR IMAGES OF WORKS OF ART PRESUMED IN THE PUBLIC DOMAIN
With the launch of NGA Images, the National Gallery of Art implements an open access policy for digital images of works of art thatthe Gallery believes to be in the public domain. Images of these works are now available free of charge for any use, commercial ornon-commercial. Users do not need to contact the Gallery for authorization to use these images. They are available for download atthe NGA Images website (images.nga.gov).
Now the Tate:One of Tate’s core goals is to promote enjoyment of, and engagement with, art and artists within our collection, to audienceswherever they are in the world. As part of this, we are releasing some of our Archive collection digital content and some items fromour main Collection for use for non-commercial and educational purposes under a Creative Commons CC-BY-NC-ND 3.0(Unported) licence. The aim is to provide a simple, standardised way to grant copyright permission for the use of Tate’s intellectualproperty (its photography) and artists’ creative work for specific uses only, whilst safeguarding Tate’s own income from its IP incommercial contexts whilst ensuring artists, copyright holders and Tate get credit for their work and are protected by law.
And so what, then, is ‘commercial’ use? The Tate begins: ‘Creative Commons defines commercial use as “reproducing a work in anymanner that is primarily intended for or directed toward commercial advantage or monetary compensation”.’ No-one could argue thatacademic work in particular is ‘primarily intended for or directed toward commercial advantage or monetary compensation’ and so, ifthis understanding was accepted within its licence, the Tate would not be able to seize fees for the vast majority of (academic)publishing about its collections. And so it simply invents its own definition, while still invoking the Creative Commons licence, bringingacademic work within ‘commercial use’:
Tate further defines commercial use [our italics] … [as] use on or in anything that itself is charged for [!], on or in anythingconnected with something that is charged for, or on or in anything intended to make a profit or to cover costs [!]… Tate wouldusually regard the following uses of Tate imagery as commercial activity: use online or in print by commercial organisations,including (for the avoidance of doubt) trading arms of charities; use on an individual’s website in such a way that adds value to theirbusiness, or for promotional purposes… use of images by university presses [!] in publications online or in print… unsolicited useof images by news media, including front covers and centre-page spreads.
And so any publication, however useful to the Tate in expanding public knowledge and understanding of works in the collection, if it isto avoid the hefty fees that the Tate imposes, must needs be handed out free and never, ever, published by a university press… This attitude is disgraceful. Alas, the British Museum, which under Neil MacGregor and Antony Griffiths had a praiseworthy free use of images in Prints and Drawings, has followed the Tate’s lead and now invokes a Creative Commons licence with the purpose of imposing reproduction fees, as does the National Portrait Gallery.
The Tate has given up on attempts to assert copyright in works of art that are actually out of copyright, and instead asserts that it isnow, rather, protecting the copyright of its photographs of those works, defining them as its ‘intellectual property’ (IP) in what is meantto be a nifty sidestep. That cannot, however, avoid the fact that, as we have pointed out in these pages, this is unsound in law, in viewof the purely mechanical nature of the image-recording operation. Fascinatingly, the NPG seems to have a different understanding ofthe matter, asserting in a letter in response to an enquiry: ‘The National Portrait Gallery owns the copyright of the majority of theimages in its collection. Even if an image is “out of copyright”, as it is still part of the collection of the National Portrait Gallery, thencopyright continues to be managed by the Gallery.’ This runs directly contrary to copyright law defined in the NPG’s own ‘Introductionto copyright’: ‘Under the UK Copyright, Designs and Patents Act 1988 (as amended), copyright protects original literary, dramatic,musical and artistic works; films; sound recordings; broadcasts and typographical arrangements… Copyright usually lasts for thecreator's lifetime, plus the end of 70 years after their death.’ Precisely. We note that works under copyright must be ‘original’ in UK law.But the photographs of works in all these collections, if they are to the job they are required to do, must needs exclude originality andremain precisely faithful to, yes, the original works – most of which are, of course, out of copyright.
The adoption of Creative Commons licences has nothing to do with the law of copyright in the UK. It is simply a device adopted inorder to allow these museums to charge for the reproduction of out-of-copyright works of art in their care, which, moreover, belong tothe public they are charging for use. There seems, frankly, no good reason for this restrictive practice if these museums are indeedconcerned, as the Tate puts it, ‘to promote enjoyment of, and engagement with, art and artists’. Could it be, then, that its purpose is toperpetuate the employment of the gallery staff who collect the money? Any fees collected will be largely cancelled out by costs: salaries,administration, office space, equipment, pensions and so on. Any profits are likely to be minimal and of no real help to the institution.Above all, they are obtained at the greatest possible cultural and educational cost. For a museum that is not a profit; it is a loss.
For whose benefit do these museums exist? Do they exist for the benefit of the staff who run them or for that of the public and theworld of knowledge they were created to serve? Do they aim to enhance knowledge of their collections? If so, why do they go out oftheir way to penalize any publication or form of dissemination of images that does that work for them? The use of images of works ofart in ‘news media… front covers’ or even on biscuit tins, bathmats or shower curtains, all serve the same purpose, which, to repeat,the Tate defines as ‘to promote enjoyment of, and engagement with, art and artists’.
Strange to say, these ‘Creative Commons’ licences originate in the USA where, however, the position, as set out by the NGA above, isclear and simple, and directly contrary to that of these UK museums. No wonder the Tate has to add so many subordinate clauses andpseudo-legal assertions to the provisions of the Creative Commons licence it invokes. It would be a far, far better thing if thesepointlessly rapacious museums in the UK adopted a different, transatlantic, model: that of the National Gallery of Art in Washingtonand of countless other museums throughout the USA. What are they afraid of? And who paid for digitizing their images? It so happensthat the Paul Mellon Centre for Studies in British Art handed out its largest ever grant, £500,000, to the British Museum to digitize itsBritish drawings, surely not with the intention that the museum might now charge for their use. The Mellon Centre’s parent institutionis the Yale Center for British Art – where images of artworks in the collections are offered free for any purpose. To return to the Tate…If, say, you look up Arthur Melville on the Tate website you will find that his biography, far from being written by a curator, as one mighthope, is simply a link to Wikipedia. By what right? Yes, by yet another Creative Commons licence which, luckily for the cynical Tate,states on the Wikipedia site that anyone may ‘share … copy, distribute and transmit the work… for any purpose, even commercially’.Now that sounds like a sensible licence.
