This document discusses open access policies for cultural heritage institutions (GLAMs) globally based on a survey conducted by the authors. Some key findings include: - Over 600 GLAMs from around the world were surveyed on their open access policies and practices. Most made some data openly available but few made all eligible data open. - Legal precedent around copyright in reproductions of public domain works varies internationally but photographic reproductions are generally not considered original works subject to copyright in most jurisdictions. - Recent court cases in Germany established that photographic reproductions of works are "other photographs" protected for 50 years, creating gaps in open access policies. - Efforts are needed to standardize open access policies across Europe and address gaps

1. THE LADIES WALDEGRAVE, SIR JOSHUA REYNOLDS (1780)
NATIONAL GALLERIES OF SCOTLAND, © NATIONAL GALLERIES OF SCOTLAND?
OPEN ACCESS TO
ART IMAGES
Andrea Wallace, University of Exeter
Simon Tanner, King’s College London

2. 1. THE GLOBAL STATE OF (GLAM)
OPEN ACCESS
2. WHY?! THE GLOBAL STATE OF
LEGAL PRECEDENT
3. SO, WHERE ARE WE NOW?
4. GAPS IN THE NEW LEGAL
FRAMEWORKS
5. WHAT CAN WE DO ABOUT IT?

3. GLOBAL STATE
OF OPEN ACCESS
AMARA: DAWNL ON THE TIGRIS, DONALD MAXWELL (FIRST WORLD WAR)
IMPERIAL WAR MUSEUM, © IWM (ART.AWM ART 1853)

4. http://bit.ly/OpenGLAMsurvey

5. Why we started the survey
● Information gap
○ Lack of up-to-date information on this topic
○ No ‘shared place’ to see/add relevant data
○ Perceived European & North American bias in the field;
we are motivated to discover the global picture
● To develop a resource for
○ people who want to find & use open content or data
○ GLAMs exploring open access data & policy
Open GLAM around the world: developing a global survey of open access policy and practice in the GLAM sector
Andrea Wallace and Douglas McCarthy, CC BY

6. Definition of open access
‘Open means anyone can freely access, use, modify, and
share for any purpose.’ (The Open Definition)
Open GLAM around the world: developing a global survey of open access policy and practice in the GLAM sector
Andrea Wallace and Douglas McCarthy, CC BY

7. Conformant licences & rights statements
● Public Domain Mark
● CC0
● CC BY
● CC BY-SA
● No Known Copyright
and equivalents
Open GLAM around the world: developing a global survey of open access policy and practice in the GLAM sector
Andrea Wallace and Douglas McCarthy, CC BY

8. Scope
● The survey covers data that GLAMs make available on their
websites and/or external platforms such as Github,
Europeana, German Digital Library or Wikimedia Commons
● The survey only covers digital surrogates of objects in the
public domain, where any term of copyright for the material
object has expired or never existed in the first place
● Only open access data is eligible (no NC or ND licences)
Open GLAM around the world: developing a global survey of open access policy and practice in the GLAM sector
Andrea Wallace and Douglas McCarthy, CC BY

10. Global GLAMs Compared to UK GLAMs
Rest of world UK: some eligibledata UK: all eligible data
• 10 CC BY-SA
• 20 CC BY
• 7 No known copyright restrictions
• 1 CC0
• 2 Public Domain
• 1 CC BY-SA
• Brighton Art Museum
• 1 CC BY
• Welcome Collection
• 2 Public Domain
• York Museums Trust
• National Library of Wales
605 43
Some
eligible
data
4
39
All
417 Some eligible data
187 All eligible data
647
Total

11. But the ticket income! Global Museums & Galleries only:
Free entry < €5 €5 to < €10 €10 to < €15 €15 to < €20 €20 +
39
11
17
14
11
4 All eligible data:
39 FREE
11 less than €5
17 from €5 to less than €10
14 from €10 to less than €15
11 from €15 to less than €20
4 from €20 +
Rijksmuseum

14. 0 PD / CC0
275 CC BY
136 CC BY-SA
460 CC BY-ND
2,304 CC BY-NC
3,539 CC BY-NC-SA
18,312 CC BY-NC-ND
220,298 IMAGES
25,027 CC LICENSED
411 OPEN CC
460 OPEN BUT ND

17. S U R R O G AT E S : I N - C O PY R I G H T v P U B L I C D O M A I N
© David Hockney
License this image
© Tate, CC BY-NC-ND
License this image

22. The Fall of Man, Cornelis Cornelisz. van Haarlem, Rijksmuseum, Amsterdam, No risk / © Rijksmuseum, Amsterdam
WHY?! THE
STATE OF LEGAL
PRECEDENT

23. ORIGINALITY IN REPRODUCTIONS
United Kingdom United States European Union Germany
Threshold “skill, labour, and
judgment”
“modicum of
creativity”
“author’s own intellectual
creation”
“personal intellectual
creation”
Relevant law Copyright Designs
and Patent Act
US Constitution
and Copyright Act
Article 6 of the Copyright
Directive
German Copyright Act
Most
relevant
case
Graves’ Case,
1869
( + Temple Island)
Bridgeman Art
Library v Corel I
(1998) and II
(1999)
Eva Maria Painer v Standard
VerlagsGmbH (2011)
Reiss Engelhorn
Museum v Wikimedia
(2018)
How do we
measure it?
no difference in
substance
between UK and
EU thresholds AKA
“free and creative
choices” =
personal stamp
(Painer)
Framing of subject
matter, lighting,
background,
position of
camera, moment
of capture, etc.,
but NO “slavish
reproduction”
“free and creative choices”
during the preparation
(back-ground, pose, and
lighting), capture (framing,
angle, atmosphere), printing
(techniques or computer
editing)”
= personal stamp
“free and creative
choices” = personal
stamp (Painer)
YES,photographic
reproductionsofartworks
areoriginal
NO,photographic
reproductionsofartworks
arenotoriginal
YES,portraitphotographs
areoriginal
NO,photographicreproductions
ofartworksarenotoriginal,but
canbeprotectedas“other
photographs”

24. OTHER PHOTOGRAPHS Austria 50 years
Denmark 50 years
Finland 50 years
Germany 50 years
Iceland 50 years
Italy 20 years
Norway 15 years
Spain 25 years
Sweden 50 years
“Significant skill and labour […] cannot justify [copyright] protection
if they do not express any originality” (Football Dataco, 2012)

25. Reiss Engelhorn Museum v. Wikimedia Foundation and Wikimedia Deutschland
Rudolf Stricker, Wikimedia Commons

27. © Reiss Engelhorn Museum

28. ORIGINAL PHOTO
O T H E R
P H O T O
A U T H O R ’ S
O W N
I N T E L L E C T U A L
C R E AT I O N
WHAT IS REQUIRED
OTHER PHOTO
YES
NO
REPRODUCTIONS = “other photographs”
Protected as “simple light photographs” with “minimum
personal intellectual input” Article 72 of German Copyright Act
FREE AND CREATIVE CHOICES
Austria 50 years
Denmark 50 years
Finland 50 years
Germany 50 years
Iceland 50 years
Italy 20 years
Norway 15 years
Spain 25 years
Sweden 50 years

33. A GENERAL VIEW IN OOTACAMUND, ROBERT HAVELL, RICHARD BARRON (1826)
BRITISH LIBRARY, PUBLIC DOMAIN, © BRITISH LIBRARY
EUROPEAN
DEVELOPMENTS &
WIDER EFFECTS

34. ARTICLE 14 OF THE
(REVISED) DSM DIRECTIVE !

37. A YOUNG WOMAN STANDING AT A VIRGINAL, JOHANNES VERMEER (1670-2)
THE NATIONAL GALLERY, LONDON, © THE NATIONAL GALLERY, LONDON, CC BY-NC-ND
SO…
WHERE ARE WE
NOW?

38. ORIGINAL PHOTO
O T H E R
P H O T O
A U T H O R ’ S
O W N
I N T E L L E C T U A L
C R E AT I O N
WHAT IS REQUIRED
OTHER PHOTO
YES
NO
REPRODUCTIONS = “other photographs”
Protected as “simple light photographs” with “minimum
personal intellectual input” Article 72 of German Copyright Act
FREE AND CREATIVE CHOICES
Austria 50 years
Denmark 50 years
Finland 50 years
Germany 50 years
Iceland 50 years
Italy 20 years
Norway 15 years
Spain 25 years
Sweden 50 years

39. ORIGINAL PHOTO
O T H E R
P H O T O
A U T H O R ’ S
O W N
I N T E L L E C T U A L
C R E AT I O N
WHAT IS REQUIRED
OTHER PHOTO
YES
NO
REPRODUCTIONS = “other photographs”
Protected as “simple light photographs” with “minimum
personal intellectual input” Article 72 of German Copyright Act
FREE AND CREATIVE CHOICES
Austria 50 years
Denmark 50 years
Finland 50 years
Germany 50 years
Iceland 50 years
Italy 20 years
Norway 15 years
Spain 25 years
Sweden 50 years

40. ‘Crowd looking at the Mona Lisa at the Louvre,’ by Victor Grigas, CC BY-SA 4.0, available at:
https://commons.wikimedia.org/w/index.php?curid=40250423

41. Installation view of Marcel Duchamp’s Fountain (1917), James Broad, Flickr

42. U K I P O C O PY R I G H T N OT I C E 2 0 1 5
• Cites CJEU
• Originality “seems unlikely”
• Guidance is not binding

46. MONTGOMERYSHIRE WAR WEAPONS WEEK (1511246), GEOFF CHARLES (1941)
NATIONAL LIBRARY OF WALES, NO KNOWN COPYRIGHT RESTRICTIONS | FLICKR COMMONS
GAPS:
ARTICLE 14 &
PSI DIRECTIVE

47. • “considerable differences
…relating to the exploitation
of public cultural resources,”
• “very different regulatory and
cultural environments”
• “hinder the smooth
functioning of the internal
market and the proper
development of an
information society.”
(Recitals 22-24)
”principle of ‘open by design
and by default’” and to “go
beyond the minimum
requirements set out”

54. A WHEATFIELD, WITH CYPRESSES, VINCENT VAN GOGH (1889)
THE NATIONAL GALLERY, LONDON, © ALL RIGHTS RESERVED | ARTUK
MIND YOUR
Ts AND Cs
(AND ARTICLE 17)

58. STUDY OF A DOG, FRANCIS BACON (1952)
TATE, MODERN, © TATE
• SORT OUT COPYRIGHT IN 2D
REPRODUCTIONS OF 2D WORKS
ALREADY
• OPEN ACCESS 2.0 IS HERE AND
THE UK IS FALLING BEHIND
• WHAT IS THE GREATER IMPACT OF
CLOSED ACCESS ON KNOWLEDGE
AND CULTURAL MEMORY?

59. https://openglam.org/principles/

61. Art for All works to support UK cultural heritage institutions to
open digital collections for unrestricted public reuse. We take the
position that no new rights should arise in faithful reproductions
of public domain works and other non-original data. We advocate
for the government to increase public funding for digitization and
release the heritage sector from obligations to generate revenue
from images.
Evidence shows that open access galvanises the development of
new knowledge and creative works, and has a transformative
effect on the institutions that adopt it. But the path to open
access can be overwhelming. Our goal is to aid the movement by
campaigning for the necessary support at government and
institutional levels. In doing so, Art for All seeks to help clear the
path toward meaningful access to the breadth of cultural
materials cared for by UK institutions.