The emergent technologies of three-dimensional scanning and printing have become more than visualisation aids in recent years and are fast developing into powerful analysis techniques capable of directing new research avenues. Yet the visual appeal and accessibility of these technologies has also allowed cultural institutions to disseminate knowledge and encourage public engagement in cultural heritage in new and exciting ways.
How then do we ensure that copyright can help us to protect, and not restrict, this democratisation of cultural heritage?
Copyright eligibility is determined by a work exhibiting originality and creativity rather than skill or labour. As Michael Weinberg has pointed out; “This distinction between hard work and creativity matters in copyright in general, and in the context of scanning in particular” (3). Scanning in three dimensions can require a high degree of skill and time, however, these factors do not equate to creativity. In addition to this, Weinberg also outlines the importance of intent, or the objective of creating a 3D scan, and how this relates to the dichotomy between representational scans and expressive scans (7).
Heritage institution and archaeologists scan material heritage with the clear empirical purpose of producing accurate representations to enable best practice research. There can be no room for creativity with regard to scans of cultural heritage for use in research. Such scans are purely representational (8).
This emphasis on objective analysis is reflected in the debate concerning the apparent authority of photorealism over non-photorealism rendering of 3D reconstructions which is ongoing in archaeology and explored by Tom Frankland in Thinking Beyond the Tool (25). Efforts to establish best practice guidelines for digital models also seek to justify decisions made in post processing to reduce subjectivity (The London Charter, 3.1).
It seems clear then that scans of cultural heritage material for research and public dissemination are not protected by copyright since they are representational scans of objects and spaces usually within the public domain.
What are the implications of 3D scans without copyright for cultural institutions?
Charles Cronin has pointed out how cultural institutions have traditionally sought to retain control over the reproduction of objects in their possession. One of the main tactics of what Cronin calls Hyperownership, is through false copyright claims on items in their collections which are in the public domain (5).
Cronin goes on to outline how cultural institutions also prohibit the public from taking photographs whilst utilising contracts which offer exclusive rights to commercial operators to produce ‘authorised’ reproductions (6).
Presently there is a move away from the practices outlined by Cronin towards openness and democratisation of heritage data of all kinds in keeping with similar movements in other fields such as information technology’s open source movement. At the same time there is an EU initiative to digitise Europe’s entire material cultural heritage held by cultural institutions. One of the recommendations of the European Commission 2011 report on this digitisation project sought to “ensure that material in the public domain remains in the public domain after digitisation” (L283/41).
To return to the question posed earlier; how then do we ensure that copyright can help us protect, and not restrict, this democratisation of cultural heritage?
Most of the cultural institutions in the vanguard of sharing digital reproductions of their collections have done so using Creative Commons licences which can be tailored to restrict commercial use (“Arts & Culture.” Creative Commons).
The Rijksmuseum’s decision to designate all their online reproductions as Creative Commons CC0 licence has been followed by many cultural heritage institutions in light of the positive outcome since implementation. Creative Commons Licence designation BY NC are one way in which copyright laws can be used to ensure that 3D scans of public domain heritage items remain in the public domain whilst restricting commercial exploitation. Another way is through contract.
Both Weinberg (1, 15) and Cronin (12, 14, 16, 18, 21) discuss the issues surrounding contracts as a means of control in the absence of copyright.
Cronin examines contracts as an apparatus of restrictive control, which is how it has been used traditionally. However, the European Commission’s Report on Digitisation recommends that any rights or privileges established by third parties contracted to digitise cultural heritage through Public Private Partnerships, should be limited to a maximum of seven years after which the digitised items should return to public ownership (283/44 ANNEX 1.2).
Such initiatives should be seen as a positive move away from the narrative of ownership with regard to what is our shared cultural inheritance.
Weinberg, Michael. New Whitepaper on 3D Scanning and (the Lack of) Copyright – Shapeways Magazine. https://www.shapeways.com/blog/archives/25599-new-whitepaper-on-3d-scanning-and-the-lack-of-copyright.html. Accessed 10 Oct. 2017.
Huggett, Jeremy, et al. Thinking beyond the tool: archaeological computing and the interpretive process. Archaeopress, 2012.
The London Charter. http://www.londoncharter.org/principles/research-sources.html. Accessed 10 Oct. 2017.
Cronin, Charles Patrick Desmond. Possession Is 99% of the Law: 3D Printing, Public Domain Cultural Artifacts & Copyright. SSRN Scholarly Paper, ID 2731935, Social Science Research Network, 8 Mar. 2016. papers.ssrn.com, https://papers.ssrn.com/abstract=2731935.
‘Public Domain Material’. Digital Single Market, https://ec.europa.eu/digital-single-market/en/public-domain-material Accessed 10 Oct. 2017.
“Arts & Culture.” Creative Commons, https://creativecommons.org/about/program-areas/arts-culture/. Accessed 10 Oct. 2017.
Hughes, Justin, The Photographer’s Copyright – Photograph as Art, Photograph as Database: SSRN. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1931220. Accessed 10 Oct. 2017.