Clarifying "Open" Open GLAM Andrea Wallace - Published on: Oct 19, 2020 License: Creative Commons Attribution 4.0 International License CC-BY ...

 
Open GLAM

Clarifying "Open"
Andrea Wallace

Published on: Oct 19, 2020
License: Creative Commons Attribution 4.0 International License (CC-BY 4.0)
Open GLAM                                                                                      Clarifying "Open

Pub 9 – Clarifying “Open”
The disharmonized use of “open” curtails usability and introduces uncertainty around reuse
permissions. Its (mis)use to describe digital access to collections and/or the release of proprietary or
low quality data is an adoption of “open” in name only. Areas where greater clarity and standardization
will benefit the open GLAM ecosystem include:

  “Open” must communicate a reliable standard for reuse purposes. Open access should carry a
  meaning that provides clarity to the user and reduces risk in engagement. Considering the
  complicated state of copyright and other rights that may legitimately restrict access or reuse, it is
  crucial to clearly distinguish which collections are open access and which are not. Non-open access is
  both justified and necessary in physical and digital environments.
  “Open” should include qualitative aspects of access for reuse purposes. Varying technical
  standards that are used for resolution, format, or metadata can compromise reuse of open-
  compliant materials.
  Using tools that already exist. The machine-readable rights statements already in use by the
  GLAM sector are designed to increase legal certainty around cross-border reuse.
  Creative Commons tools. Both Creative Commons tools are “open.” These include the Public
  Domain Mark and the CC0 1.0 Universal Public Domain Dedication. Creative Commons recommends
  the latter tool for the release of non-original reproduction media because it provides greater legal
  certainty for users.
  Creative Commons licenses. Not all Creative Commons licenses are “open” according to
  international standards. Open CC licenses include CC BY and CC BY-SA. These licenses rely on the
  existence of copyright, so should not be applied to non-original materials.
  Labels as distinguished from licenses. Unlike licenses, labels can be applied by anyone when
  digitizing both in-copyright and public domain collections and communicate the status of the highest
  level of rights present in a digital object.
  Cultural Permissions. There are frameworks specific to the management of traditional knowledge
  and traditional cultural expressions that sometimes map onto IPR frameworks or sit outside of them
  entirely.
  Layers of rights and misapplication. Conflicting statements and mislabeling can result from
  conflating the IPR status of distinct layers in an image, a lack of information around the source work
  or another layer, or misunderstandings around the appropriate tool, license, or label to apply.
  Building consensus around using licenses (or not). Greater consensus is needed on whether
  rights arise, as well as whether they should be claimed for various media produced during digital
  initiatives.

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Open GLAM                                                                                      Clarifying "Open

  Building consensus around respecting tools, licenses, and labels. The wider GLAM ecosystem,
  particularly users, are also key to improving practices and understandings around the use of tools,
  licenses, and labels in digital environments.

Clear open GLAM standards on “open access” and how to engage with it would help introduce
consistency to practices and legal certainty to public reuse. Otherwise, “open” in relation to “access”
will continue to reflect subjective preferences.

9.1. A Clear Definition for “Open” Aligned with International
Definitions
The OpenGLAM initiative should adopt a clear standard aligned with international definitions, which
condition “open” upon allowing commercial reuse. These include, for example, the Budapest Open

Access Initiative,1 the Bethesda Statement on Open Access Publishing,2 the Berlin Declaration on Open

Access to Knowledge in the Science and Humanities,3 the Open Knowledge Foundation’s definition,4

and the standards used by the Open Access Scholarly Publishers Association.5 This means only
materials published under public domain, CC0, CC BY, CC BY-SA, and similar statements (e.g., “No
known copyright restrictions”) are open-compliant under international standards.

Doing so will increase reuse certainty, benefiting users and GLAMs in three immediate ways:

 . It will signal “open” materials can be used for any purpose, enabling their integration into public
  platforms that condition uploads upon allowing commercial reuse.
 . It will bring greater clarity to the sector around what activity and materials qualify as open GLAM,
  rather referring to activities that extend only digital access and limit reuse of public domain
  collections.
 . It will help validate various non-open activities and materials that cannot be “open” due to legitimate
  legal or ethical reasons.

“Non-open GLAM” is not a dirty phrase. It just means institutions may be unable to release their
collections under open frameworks, like the reproductions of in-copyright collections or sensitive
materials. Yet, this does not mean that non-open GLAMs (or non-open collections) have nothing to
contribute to the open GLAM landscape. Most collections data or metadata can be released under open
frameworks to allow for their integration with other data. This is also important in order to balance
the risk of in-copyright collections being excluded from or obscuring the new connections that might

be made.6

The OpenGLAM initiative could help clarify reuse limitations to users and defend non-open GLAMs, by
helping draw a distinction between a non-open GLAM (i.e., unable to participate for legal reasons) and
a NOpenGLAM (i.e., able to participate, but refrains). There has been a demonstrated need to clarify

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Open GLAM                                                                                     Clarifying "Open

reuse limitations for users’ benefits.7 Doing so may help the public better understand, appreciate, and
respect distinctions around in-copyright versus public domain, and particularly with respect to the
underlying work’s IPR or other rights and appropriate reuse during engagement with digital
collections.

9.2. Qualitative Aspects of Open
It is equally important to consider qualitative aspects of open. The varying technical standards that are
used for resolution, format, or metadata can compromise reuse of open-compliant materials. Even if no
rights are claimed (or if open licenses are applied), GLAMs might release images that are low
resolution, embedded with messy or nonexistent metadata, or lacking machine-readable rights

statements.8 These variables pose difficulties to meaningful reuse, disrupt interoperability, and
render some collections unusable for purposes other than viewing online.

These technical aspects demonstrate the need for further discussion around baseline standards for
resolution, interoperability, machine-readable formats, and other technical standards to facilitate
reuse of open GLAM data. This point is revisited in Technical Standards.

9.3. Using the Tools that Already Exist
There are at least four benefits to using existing machine-readable rights statements and
standardizing approaches among (and within) GLAMs.

 . The free text typically contained in copyright metadata fields and managed via digital asset
  management system is not machine-readable, nor can it be read without technical extraction. By
  contrast, machine-readable statements are searchable and can be read by human and machine
  users, integrated into data aggregators, and filtered by major search platforms.
 . Standardized licenses and labels are both well-known and multilingual, which allows downstream
  and cross-border users to read the statement terms in native languages.
 . In the absence of IPR harmonization on various reproduction media types, standardized and
  machine-readable licenses and labels provide legal interoperability, which should be maximized for
  cross-border online environments.
 . These initiatives are stewarded by independent groups of people who monitor international legal
  changes and provide necessary updates. This cannot be said of manually embedded data fields and
  statements, for which the logic and reasoning of bespoke statements may be provided by staff who
  will inevitably leave the GLAM.

With this in mind, we’ll examine what machine-readable rights statements are available, and how
they may be used (or misused).

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Open GLAM                                                                                      Clarifying "Open

9.4. Creative Commons Tools for Open Access to Cultural Heritage
Creative Commons provides two tools for releasing non-original materials: the Public Domain Mark9

and CC0 (1.0 Universal) Public Domain Dedication.10

There has been a wider debate around which tool is more appropriate for the release of non-original
materials. Some advocate for use of the Public Domain Mark, because it confirms the legal status of
the work in a way CC0 does not. The text of the CC0 tool suggests that rights arise, but that the rights
holder has dedicated the material to the public domain. On principle, the use of the CC0 Public Domain
Dedication is therefore inappropriate: the “rights holder” cannot dedicate what they do not legally
hold.

However, there is an important point to highlight here. Just as Copyright discussed various
parameters around copyright protection and its territorial differences, there are similar differences
arising with the public domain. National standards for originality or related rights may render

materials as public domain in one jurisdiction, while it would be subject to protection in the next.11 For
some users, this poses significant risk to cross-border reuse online. The CC0 1.0 Universal Public
Domain Dedication recognizes this uncertainty and ensures users that if any IPR or other rights would
be recognized in the jurisdiction of use, the rights holder has waived them or agrees to a fallback
license (hence the “Universal”). Creative Commons recommends CC0 for reproduction media of public

domain works for this reason.12

To be clear, CC tools may be applied only when no rights arise (or have been waived) in any part of the

composite media.13 Applying the Public Domain Mark or CC0 1.0 Universal Public Domain Dedication
tool to non-original reproduction media of an in-copyright work is neither appropriate nor legal
(unless the rights holder of the underlying work has agreed to release the rights and the tool’s
application). Alternatives for this are discussed below, namely labels.

9.5. Creative Commons Licenses for Open Access to Cultural
Heritage
Creative Commons provides two open licenses for releasing original materials: CC BY (Attribution)14

and CC BY-SA (Attribution-Share Alike).15

Licenses are appropriate only when IPR arises, and can be applied by only the rights holder.16
Accordingly, if the underlying work is in-copyright, and the GLAM does not own those rights, CC
licenses are inappropriate (see the discussion on labels instead). This means GLAMs can apply Creative
Commons licenses to:

 . Non-original reproduction media for which the underlying work is in-copyright and the GLAM holds
  those rights; and

                                                     5
Open GLAM                                                                                        Clarifying "Open

 . GLAM materials that satisfy national standards for copyright protection.

It is worth noting that while the CC BY-ND (No-Derivatives)17 license permits commercial use, it is not

“open” according to the Budapest Open Access Initiative and its 2012 recommendations.18 This is
because the ND restriction will prevent modification, translations, adaptations, and other useful

activities, including how subsequent research using the materials might be shared.19

The remaining CC licenses are not open under international standards due to their restriction on

commercial use. These include: CC BY-NC,20 CC BY-NC-SA,21 and CC BY-NC-ND.22 Many legitimate
reasons lead GLAMs to choose closed licenses for GLAM-generated intellectual property. Guidance for
that decision is discussed in below, and in GLAM-Generated IP. It should be noted here that the
application of closed licenses prevents engagement with external platforms that require open-
compliant licenses.

9.6. Labels for Open Access to Cultural Heritage
Labels can be applied by anyone when digitizing both in-copyright and public domain collections,

rather than only the rights holder.23

Labels are designed to communicate the status of the highest level of rights present in a digital object.
Those most commonly used include the twelve standardized statements designed by the Rights

Statements initiative.24 As applied to non-original reproduction media, Rights Statements are useful
to reflect the IPR status of the underlying work. For example, if a book is in-copyright, the digital
surrogate of the book will be labeled “In Copyright.” No rights arise in the digital surrogate, but reuse
is restricted by the in-copyright status of the underlying work. By contrast, if the book is in the public
domain, the digital surrogate of the book will be labeled “No Copyright.” Neither the digital surrogate
nor the underlying work presents any copyright reuse restrictions.

Three Rights Statements align with international standards for open. These include: No Copyright, No

Copyright – United States,25 and No Known Copyright.26 Because the label applies to the highest layer
of rights that might arise, use of the label communicates there are no IPR claims in the digital
surrogates.

Here, a distinction should be made on the difference between the legal statuses conveyed by licenses
and labels. All Creative Commons licenses and tools communicate a clear legal status of the work. The
user can be certain their reuse is legally compliant, so long as it falls within the license’s parameters
(and the license has been correctly applied). Two Rights Statements also achieve this: No Copyright
and No Copyright – United States. As indicated by the name, the latter statement only applies to the
United States. By contrast, No Known Copyright signals that the legal status is inconclusive, yet the

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Open GLAM                                                                                                   Clarifying "Open

GLAM has reason to believe the work is no longer protected by IPR. In this case, the onus is on the user
to ensure reuse complies with national law.

Current practices reveal confusion and misapplication of licenses versus labels by GLAMs, but also by
users. This is particularly true when the media is uploaded to Wikimedia Commons, or another
platform, and the rights statements conflict with the work’s actual IPR status. One area OpenGLAM
might focus on is standardizing vocabularies and how rights information is recorded to Wikimedia
Commons, as discussed further below.

9.7. Cultural Permissions
Finally, the GLAM ecosystem needs to develop a greater awareness around appropriate digitization
and collections management, including when the application of licenses, tools, or labels may be
harmful or oppressive. This is discussed further in New Areas of Focus. Here, we’ll briefly note two
frameworks specific to digitization and the stewardship of traditional knowledge and traditional
cultural expressions to illustrate how they operate around the gaps and navigate various issues caused
by our intellectual property regime.

Local Contexts is an initiative that provides labels, licenses, and notices for the traditional knowledge
and intellectual property of Native, First Nations, Aboriginal, Inuit, Metis, and other Indigenous

communities.27 Developed by Jane Anderson and Kim Christen, the TK Licenses and Labels aim to
support Indigenous peoples’ rights to maintain, control, protect, and develop their own heritage
specifically within the digital environment according to the principles established by the 2007 UN

Declaration on the Rights of Indigenous Peoples.28 Similar to Creative Commons licenses and tools, the TK
Licenses and Labels map onto intellectual property frameworks and enable individuals and
communities to specify permissions or restrictions according to their relationships with the materials
and how they should be used (or not) in digital environments, whether by those within the community

or outside of it.29

                  Visit the web version of this article to view interactive
                                         content.
               Jane Anderson and Michael Weinberg discuss how Indigenous and Traditional Knowledge engage
                                              with intellectual property law.

In New Zealand, staff at Auckland Museum designed a cultural permissions policy specific to Māori

taonga (treasures30), which sits outside of intellectual property frameworks.31 The museum’s online
collections management takes an “open by default, restricted by exception” approach, while viewing
images of Taonga Māori within an open adjacent framework and reuse requests subject to cultural

permissions.32 This includes a set of four guidelines for managing images and their connection to the
taonga both for online display and upon a request for use, depending on its purpose (e.g., commercial

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Open GLAM                                                                                      Clarifying "Open

or noncommercial, national or non-national, a personal connection to the taonga, and so on).33 As Zoë
Richardson explains, the process requires due diligence, time, constant reflection, and active
collaboration with iwi (tribes) and whānau (family, both nuclear and extended) to ensure a more

nuanced paradigm will guide practices irrespective of digital trends.34

At the heart of these examples lies the recognition of Indigenous peoples’ inherent sovereignty and
rights to self-determination with a focus on localized approaches to digital collections and rights
management. Similar initiatives for engagement with both material and digital collections are
discussed in New Areas of Focus, particularly in Decolonization and Indigenization.

9.8. Illustrating the Problem
These details create conditions for ample confusion to arise during collections management, leading to
conflicting statements and mislabeling. This can happen when we conflate the IPR status(es) of
distinct layers in an image, lack information around the source work or another layer, or

misunderstand what the appropriate tool, license, or label is to apply.35

Let us illustrate this with an example of a digitized archival photograph of a 19th-century vase, like the

one below.36 That digital file includes (at least) three layers and rights assessments:

   (1) The digital layer: the scan or photograph made by the GLAM;
   (2) The analog layer: the photograph or slide in the GLAM archive; and
   (3) The object layer: a 3D vase.

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Open GLAM                                                                                         Clarifying "Open

For a rights assessment, we would start with the source layer (3) and work our way up:

   (3) The object layer: the vase was made ca. 1825, so clearly in the public domain: no IPR;
   (2) The analog layer: records show the photograph was taken in 1971: copyright is likely, but the
   photograph is an orphan work;
   (1) The digital layer: the GLAM claims no rights in the digital layer.

Despite copyright in layer (2), the GLAM’s risk assessment reveals little risk to making the image
available online. It is highly unlikely a rights holder of the photograph will ever come forward. The
image’s value is in its relationship to the photo archive, the vase itself, and its wider educational
potential, not in its (non-existent) potential for licensing. Moreover, the GLAM sits in a jurisdiction
with copyright exceptions for GLAM digitization, as well as user rights exceptions for certain personal,
non-commercial, or educational uses. A decision is made to make the image available online. But how
should reuse be restricted, given its non-public domain status?

After extensive internal and external consultations, the GLAM applies a CC BY-NC license and makes
the digital image available online. This license is selected to protect: (1) the (potential) rights holder,
whose market for commercial licensing has not been damaged if they come forward; (2) the GLAM,
who may be liable to that rights holder and is not comfortable (or able) to apply an open license

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Open GLAM                                                                                           Clarifying "Open

permitting commercial use; and (3) the user, who benefits from access to the image and the clear
indication it can be used for only non-commercial purposes. In the unlikely event a request for
commercial licensing should come forward, the GLAM will license the image and require the user to
indemnify the GLAM against any liability via the licensing agreement. In the end, the image is now
online, the public can view and reuse it for non-commercial purposes with attribution to the GLAM,
and everybody wins.

As demonstrated by a Kennisland study on the accuracy of rights statements on images aggregated by

Europeana, this practice is widespread.37 But that does not make it legal (don’t panic). This is because
no one but the rights holder of the 1978 photograph may apply a license to its reproduction. Instead,
the appropriate label to apply is either “In-copyright,” if using Rights Statements, or “@ All Rights
Reserved,” (to the unknown rights holder) if not.

The desire to participate in “open access” drives the decision to apply CC BY-NC. But this desire cannot
override obligations to a legal system that protects the rights holder’s interests, as well as the public’s
use via the exceptions and limitations provided by national copyright law. On this point, three issues
arise: first, CC BY-NC is not open access for the reasons discussed above; second, the application of any
CC license (or tool) in this case violates copyright law because the GLAM holds no rights in the analog

photograph;38 and, third, the copyright exceptions and limitations the GLAM seeks to align with
already permit certain uses despite even a full reservation of IPR (though these benefit only national
users). The effect is to undermine understanding and introduce wider uncertainty around how
copyright and CC licenses actually operate, especially as technologies for reproduction advance to 3D

and other new formats.39

9.9. Building Consensus on When to Use Open Licenses (and When
not to)
More guidance is needed on the application of open licenses to GLAM-generated materials (i.e., CC BY
and CC BY-SA). While this includes initially asking whether rights arise and therefore whether open

licenses can be used, it is also important to discuss if they should be used – and when.40

As discussed in Barriers to Open Access, using CC BY and CC BY-SA allows GLAMs to maintain
attribution to the host institution, an important principle in scholarship and protecting context. The
desire for attribution may be legitimate. But relying on CC BY and CC BY-SA to activate this narrow
obligation raises a number of issues.

First, if no IPR arises, the application of CC BY or CC BY-SA licenses will have no legal effect.

Second, if IPR does arise, GLAMs might evaluate whether these open licenses are practical. For
example, with collections data and metadata, national laws may recognize copyright in various

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Open GLAM                                                                                        Clarifying "Open

components of that data, like more descriptive text or curatorial opinions.41 Legislation might also

recognize copyright in how the data itself is arranged, in addition to sui generis rights in a database,42

or related rights in composite works43 and other technologically-produced media.44 Selecting CC BY
may be legally justified and reassuring to GLAMS that attribution will follow the data online – in
theory.

In practice, attribution failures happen all the time. If there is no intention to ever legally enforce the
copyright, why claim it? That legal obligation to attribute the data can pose significant issues when
aggregated and combined with other datasets. For many, this is technically impossible. Accordingly, CC
BY and CC BY-SA will chill or even prevent reuse of data. Instead, GLAMs might educate users about
citation best practices in line with public missions and release data via the CC0 tool.

Third, CC BY and CC BY-SA data cannot be integrated into public platforms like Wikidata, which
requires CC0. These GLAMs will lose out on exposure through one of the most visited websites in the
world, and risk relevance as Wikidata advances and becomes richer and more widely used for research
and networking knowledge.

Finally, because open licenses are based in copyright, restrictions on reuse will last significantly longer
than the data format will be technically useful for. The legal obligation to attribute the work can
therefore render the data incompatible with a range of modern applications.

A clear statement and consensus is also necessary on this point. In the EU, Article 14 aims to formally
prohibit GLAMs from claiming IPR in any non-original media generated during reproduction. Yet,
evidence already exists of European GLAMs claiming IPR and applying CC BY and CC BY-SA to non-
original reproduction media in contradiction with national copyright law. Considering the lack of

lawsuits to date, GLAMs may continue this practice and forego ever enforcing the right.45

It feels uncomfortable to forego claiming any legal right or imposing an obligation for the context to
follow the public domain work online. But poor citation practices are already rampant. A claim to
copyright and CC BY license will not ensure attribution to the author or institution is given. Instead,

GLAMs should release media as CC0 and focus on embedding rich metadata46 and educating users

around best practices for attribution and maintaining educational context.47

In fact, there are benefits to applying open tools rather than licenses to images. In their 2018 study on
the societal value of images on Wikimedia Commons, Kris Erickson, Felix Rodriguez Perez, and Jesus
Rodriguez Perez, found an inverse relationship to the distribution of licenses when comparing the

status of uploaded images to those used downstream.48 While around 73% of the 10,000-image sample
were CC BY and CC BY-SA (15.94% and 56.84%, respectively), that attribution or share-alike
requirement significantly reduced the odds of the image being used externally, compared to the public

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Open GLAM                                                                                        Clarifying "Open

domain files (which comprised only 18% of the sample).49 This suggests a preference for public domain
materials, potentially due to the clear no-risk implications of downstream reuse on external platforms.

9.10. Building Consensus around How (and When) to Respect Tools,
Licensing, and Labels
These uncertainties end up driving a wedge between initial access-driven goals and formal GLAM
policies as conveyed to (and subsequently interpreted by) the public at large.

One example of this can be found on Wikimedia Commons among users who selectively respect CC BY
or CC BY-SA versus remove the copyright claim and license entirely, according to the Wikimedia policy
(which states in the United States, reproductions of public domain works do not receive new rights).
Of course, such images may be sourced from places other than the GLAM’s digital collection to be

uploaded to Wikimedia Commons, or uploaded by the GLAMs themselves.50 However, where GLAMs
reserve all rights in digital surrogates, examples can be found of uploads with the images marked
“public domain.” Where GLAMs release digital surrogates as CC BY or CC BY-SA, examples can be
found of uploads with the Creative Commons open license intact. Things are further complicated when
the work depicted is three-dimensional, rather than two-dimensional. For example, the underlying
sculpture may be in the public domain, but the digital surrogate will be released CC BY-SA. The layers
of rights involved may be clearly displayed in the item page details, but can become conflated when

the data is linked and integrated into other platforms.51 Structured data for the Wikimedia Commons
item with item level rights management, educational materials, and guidance for more accurate

uploads could be improved to reflect this nuance and improve standardization.52

In fact, following 7 June 2021, the transposition deadline for Article 14 of the Copyright in the Digital

Single Market Directive,53 Wikipedia’s policy for public domain artworks could be updated to reflect
both the US and EU legal status for reproductions of visual artworks. OpenGLAM might develop new
guidance on reuse of public domain artworks to consider the layers of digital media and how to clearly

convey the IPR status of a file versus the artwork.54 Build off of ongoing work by Wikipedia
communities and residents to provide support and capacity-building for GLAM staff and user-groups.

Lastly, issues also arise when GLAMs contain images of public domain works that are held in the
collections of another GLAM. Let’s call the GLAM with the images “GLAM-1,” and the GLAM holding
the public domain work it depicts “GLAM-2.” GLAM-1 might have the images because it made a
reproduction when GLAM-2 loaned the work to GLAM-1 for an exhibition. Or, GLAM-1 may even have
received a donation of photographic reproductions of many works owned by GLAM-2, and other
GLAMs. Even if GLAM-1 owns the rights in those photographic reproductions or views them as public
domain, GLAM-1 may be reluctant to release its photographic reproductions as open access if GLAM-2
claims copyright in its own reproductions. This is because there may be a perception that GLAM-1’s

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Open GLAM                                                                                       Clarifying "Open

open access images will compete with GLAM-2’s in-copyright images and undermine their licensing
market. Respect for GLAM-2 and maintaining the relationship will override the desire to release the
public domain materials under open frameworks.

9.11. Do it for the Children (AKA the Future GLAM Collections
Managers and Users)
Copyright confusion and risk-averse processes already impact the management of in-copyright

materials.55 The practices described in this Pub are now creating all kinds of new legacy issues for
future GLAM staff and users. As digital engagement accelerates, the GLAM ecosystem needs simple
and reliable methods reflecting accurate rights statuses when managing, releasing, and reusing public
domain collections.

The urgency for standardized methods grows as media becomes more advanced and more rights
become embedded in a given file, potentially leading to more orphan works in the future. GLAMs
should be able to anticipate now how all of this will affect the IPR management of future creative
media, interoperability, and ascendant technologies when data is combined and built upon to create
new works. What inevitable mess awaits future curators and rights clearance? What new challenges
will sharing platforms face in conveying complicated rights statements layers? If there is no real plan
to actually enforce the rights claimed in public domain reproduction media, why keep claiming them?

Against this backdrop, recommendations for a Declaration include:

  No new rights in non-original reproduction media;
  Application of only PDM or CC0 to these materials, highlighting the benefits of CC0 for legal
  certainty and cross-border reuse;
  Clear statements in a machine readable form embedded in data and clearly stated on GLAM
  websites, and support for new machine readable statements where there is demonstrated need;
  Commitments to voluntarily release high-quality digital surrogates (2D and 3D), collections data,
  metadata, paradata, and other non-original or basic materials prepared in the context of day-to-day
  operations;
  A definition of “open” that aligns with international definitions allowing commercial use;
  Application of open licenses are appropriate only when GLAM owns rights (and in all layers of the
  material);
  CC BY and CC BY-SA are discouraged if attribution is the only concern;
  Build good citation and attribution practices into digital interfaces or websites and embed
  educational context in the metadata;
  Expand these practices to Wikimedia Commons and Wikidata interfaces;
  Forego imposing new limitations through contract-based agreements;
  Incorporate licensing and labeling into practice and provide ongoing training (not one-off activities);

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Open GLAM                                                                                        Clarifying "Open

  And what else?

These are simple propositions, but require a significant shift in mindset. They are put forward here for
discussion by the wider GLAM ecosystem. But, whatever we decide, everyone must agree to sign on
and apply them consistently.

An immeasurable benefit awaits upon introducing clear standards and practices to the rights
management of layers that GLAMs do have control over, and the levels of ethical access extended to a
global public.

Continue to Power Inequities

Footnotes
   . ‘Budapest Open Access Initiative’, 2002. ↩
   . ‘Bethesda Statement on Open Access Publishing’, 2003. ↩
   . ‘Berlin Declaration’, 2003. ↩
   . ‘Open Definition 2.1’, Open Knowledge Foundation. ↩
   . This is consistent with the Open Access Scholarly Publishers Association, which defines only CC
  BY, CC BY-SA and CC0 as open compliant. Open Access Scholarly Publishers Association, ‘Licensing
  FAQ’, Open Access Scholarly Publishers Association. ↩
   . See the discussion on the “twentieth-century black hole” in Pub 2 – Copyright. ↩
   . Jean Dryden, ‘Cavalier or Careful? How Users Approach the Rights Management Practices of
  Archival Repositories’, Journal of Archival Organization 10, no. 3–4 (1 July 2012): 191–206; Kylie
  Pappalardo et al., ‘Imagination Foregone: A Qualitative Study of the Reuse Practices of Australian
  Creators’ (Australia: Australian Digital Alliance (ASDA), 2017). ↩
   . Jean Dryden, ‘Just Let It Go? Controlling Reuse of Online Holdings’, Archivaria, 23 May 2014, 43–71.
  ↩

   . ‘Creative Commons — Public Domain Mark 1.0’,
  https://creativecommons.org/publicdomain/mark/1.0/. ↩
      . ‘Creative Commons — CC0 1.0 Universal’, https://creativecommons.org/publicdomain/zero/1.0/.
  ↩

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Open GLAM                                                                                   Clarifying "Open

     . Christina Angelopoulos, ‘The Myth of European Term Harmonisation: 27 Public Domains for the
  27 Member States’, SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, 13
  September 2012). ↩
     . See also Jane Park, ‘For Faithful Digital Reproductions of Public Domain Works Use CC0’,
  Creative Commons (blog), 23 January 2015, https://creativecommons.org/2015/01/23/for-faithful-
  digital-reproductions-of-public-domain-works-use-cc0/; ‘CC0 PDM Comparison Chart’, Creative
  Commons Wiki, 2011, https://wiki.creativecommons.org/wiki/CC0_PDM_comparison_chart. ↩
     . See also Creative Commons, ‘Guide to Using Public Domain Tools’, accessed 18 February 2020,
  https://wiki.creativecommons.org/images/8/88/Publicdomain.pdf. ↩
     . ‘Creative Commons — Attribution 4.0 International — CC BY 4.0’,
  https://creativecommons.org/licenses/by/4.0/. ↩
     . ‘Creative Commons — Attribution-ShareAlike 4.0 International — CC BY-SA 4.0’,
  https://creativecommons.org/licenses/by-sa/4.0/. ↩
     . See Nancy Sims, ‘Rights, Ethics, Accuracy, and Open Licenses in Online Collections: What’s
  “Ours” Isn’t Really Ours’, College & Research Libraries News 78, no. 2 (n.d.): 79–82. ↩
     . ‘Creative Commons — Attribution-NonCommercial-NoDerivatives 4.0 International — CC BY-
  NC-ND 4.0’, https://creativecommons.org/licenses/by-nc-nd/4.0/. ↩
     . ‘Ten Years on from the Budapest Open Access Initiative: Setting the Default to Open’, Budapest
  Open Access Initiative, 2012, https://www.budapestopenaccessinitiative.org/boai-10-
  recommendations. ↩
     . Brigitte Vézina, ‘Why Sharing Academic Publications Under “No Derivatives” Licenses Is
  Misguided’, Creative Commons (blog), 21 April 2020,
  https://creativecommons.org/2020/04/21/academic-publications-under-no-derivatives-licenses-is-
  misguided/. ↩
     . ‘Creative Commons — Attribution-NonCommercial 4.0 International — CC BY-NC 4.0’, accessed
  28 May 2020, https://creativecommons.org/licenses/by-nc/4.0/. ↩
     . ‘Creative Commons — Attribution-NonCommercial-ShareAlike 4.0 International — CC BY-NC-
  SA 4.0’, accessed 28 May 2020, https://creativecommons.org/licenses/by-nc-sa/4.0/. ↩
     . ‘Creative Commons — Attribution-NonCommercial-NoDerivatives 4.0 International — CC BY-
  NC-ND 4.0’. ↩

                                                     15
Open GLAM                                                                                      Clarifying "Open

     . In some countries, national legislation provides copyright exceptions for GLAMs to digitize in-
  copyright or orphan works and make them available online. ↩
     . These labels are especially helpful for application to digital surrogates when IPR in the
  underlying work is still valid (and not held by the GLAM) or when insufficient information prevents
  clearing the work’s status. ‘Rights Statements’, RightsStatements.org, accessed 28 May 2020,
  https://rightsstatements.org/en/. See also Society of American Archivists, ‘Guide to Implementing
  Rights Statements from RightsStatements.org’. ↩
     . Determining whether a work is in the public domain can be very complicated in the United
  States. See ‘Copyright Term and the Public Domain in the United States’,
  https://copyright.cornell.edu/publicdomain. ↩
     . ‘Statements’, Rights Statements, accessed 28 May 2020,
  https://rightsstatements.org/page/1.0/?language=en. ↩
     . ‘Local Contexts’, Local Contexts, accessed 3 November 2019, http://localcontexts.org/. ↩
     . Discussed in Human Rights. Jane Anderson and Kim Christen, ‘“Chuck a Copyright on It”:
  Dilemmas of Digital Return and the Possibilities for Traditional Knowledge Licenses and Labels’,
  Museum Anthropology Review 7, no. 1–2 (2013): 22. ↩
     . Michael Weinberg, ‘Jane Anderson on Traditional Knowledge Labels’, Engelberg Center
  Innovation Policy Colloquium. ↩
     . As Michaela O’Donovan and Zoe Richardson explain, “an item is considered a tonga if it: is
  representation of a Māori ancestor; and/or was directly associated with a known Māori ancestor;
  and/or carries a Māori ancestra name; and/or is considered of ancestral importance to the Māori
  descent group from where it originated; and/or continues to carry Māori ancestral value.” Michaela
  O’Donovan and Zoe Richardson, ‘Navigating Good Practice Image Permissions for Māori Collections
  Held at Auckland War Memorial Museum - Tāmaki Paenga Hira’, 2015, 13; Zoe Richardson and Nigel
  Borell, ‘Navigating Image Permissions and Best Practice for Māori Collections Held at Auckland War
  Memorial Museum - Tāmaki Paenga Hira’,
  https://webcast.gigtv.com.au/Mediasite/Play/4caed8e536c844d392160e880d9ddf361d. ↩
     . Sarah Powell, Adam Moriarty, Michaela O’Donovan, Dave Sanderson, ‘The “Open by Default”
  Journey of Auckland Museum’s Collections Online’, SocietyByte, 21 August 2017; O’Donovan and
  Richardson, ‘Navigating Good Practice Image Permissions for Māori Collections Held at Auckland
  War Memorial Museum - Tāmaki Paenga Hira’; Lida Ayoubi, ‘Intellectual Property

                                                    16
Open GLAM                                                                                       Clarifying "Open

  Commercialisation and Protection of Mātauranga Māori in New Zealand Universities’, SSRN
  Scholarly Paper (Rochester, NY: Social Science Research Network, 3 December 2019). ↩
     . Zoë Richardson, ‘Mana Taonga, Mana Tangata’, Medium, 11 March 2020,
  https://medium.com/open-glam/mana-taonga-mana-tangata-faf314d05556. ↩
     . ‘Rights and Permissions’, Auckland War Memorial Museum,
  https://www.aucklandmuseum.com/legal/rights-and-permissions; ‘Image Orders and Cultural
  Permissions’, Auckland War Memorial Museum,
  https://www.aucklandmuseum.com/discover/library/image-orders. ↩
     . Richardson, ‘Mana Taonga, Mana Tangata’. ↩
     . Judith Blijden, ‘Research Paper: The Accuracy of Rights Statements on Europeana.eu’
  (Kennisland, 2018). ↩
     . This image is purely illustrative, and can be found online as CC0: ‘Vase | French | The Met’, The
  Metropolitan Museum of Art, https://www.metmuseum.org/art/collection/search/9309. ↩
     . Judith Blijden, ‘Research Paper: The Accuracy of Rights Statements on Europeana.Eu’,
  Kennisland (blog), 5 February 2018, https://www.kl.nl/en/publications/research-paper-the-
  accuracy-of-rights-statements-on-europeana-eu/. ↩
     . Even if the GLAM claims IPR in the digital layer to provide reasoning for the CC BY-NC
  application, those rights conflict with the copyright in the underlying archival photograph. ↩
     . Claudio Ruiz and Evelin Heidel, ‘Reproductions of Public Domain Works Should Remain in the
  Public Domain’, Creative Commons (blog), 20 November 2019,
  https://creativecommons.org/2019/11/20/reproductions-of-public-domain-works/; Hakim Bishara,
  ‘Official 3D Scans of Nefertiti Bust Are Released After Three-Year Battle’, Hyperallergic (blog), 26
  November 2019, https://hyperallergic.com/530400/official-3d-scans-of-nefertiti-bust-are-released-
  after-three-year-battle/. ↩
     . The discussion on appropriate licensing and labelling of culturally sensitive materials is
  reserved for Pub 12 – Decolonization and Indigenization. ↩
     . These might be included in the collections data or metadata fields. Purely descriptive
  information will not be protected. ↩
     . For example, Directive 96/9/EC on the legal protection of databases. ↩

                                                    17
Open GLAM                                                                                     Clarifying "Open

     . For example, Article 72 of the German Copyright Act. See Andrea Wallace and Ellen Euler,
  ‘Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments’,
  IIC - International Review of Intellectual Property and Competition Law 51, no. 7 (1 September 2020):
  823–55. ↩
     . See Wallace and Euler. ↩
     . Even the Rijksmuseum weighed this strategy in 2011 with the adoption of CC BY by was
  dissuaded by Europeana and Kennisland. Joris Pekel, ‘Democratising the Rijksmuseum’ (Europeana,
  2014), 6. ↩
     . Harry Verwayen, Martijn Arbikdys, and Peter Kaufman, ‘The Problem with the Yellow
  Milkmaid: A Business Model Perspective on Open Metadata’, White Paper (Europeana, November
  2011). ↩
     . To this point, Europeana’s Public Domain Usage Guidelines provide clear guidance on attribution
  for users. Europeana, ‘Public Domain Usage Guidelines’, Europeana Collections,
  https://www.europeana.eu/portal/en/rights/public-domain.html. ↩
     . Kristofer Erickson, Felix Rodriguez Perez, and Jesus Rodriguez Perez, ‘What Is the Commons
  Worth?: Estimating the Value of Wikimedia Imagery by Observing Downstream Use’, in Proceedings
  of the 14th International Symposium on Open Collaboration (OpenSym ’18: The 14th International
  Symposium on Open Collaboration, Paris France: ACM, 2018), 4. ↩
     . Erickson, Perez, and Perez, 5. ↩
     . Although, these images may come from a number of sources, rather than directly from a GLAM’s
  website. Elizabeth Joan Kelly, ‘Digital Cultural Heritage and Wikimedia Commons Licenses’, Journal
  of Copyright in Education & Librarianship 3, no. 3 (13 October 2019): 11. ↩
     . Several examples of this can be found on Open Art Images, https://openartimages.com/. See also
  Marina Cotugno, ‘Open Art Images: A Search Engine for Open Access Images of Art’, Medium, 10
  September 2020, https://medium.com/open-glam/open-art-images-a-search-engine-for-open-
  access-images-of-art-9ff84e2b2700. ↩
     . One image on the policy page links back to the National Portrait Gallery, with a clear copyright
  claim. The stated source links to a dead website (www.the-athenaeum.org). Commons:When to use
  the PD-Art tag, https://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag; see,
  e.g., File:Benjamin West by Gilbert Stuart 1783-84.jpg,
  https://commons.wikimedia.org/wiki/File:Benjamin_West_by_Gilbert_Stuart_1783-84.jpg. See also
  Sandra Fauconnier, ‘Creative Works and Digital Representations’, Medium, 10 July 2020,
  https://medium.com/open-glam/creative-works-and-digital-representations-65074b7abd0e. ↩

                                                     18
Open GLAM                                                                                    Clarifying "Open

     . Discussed in Copyright. ↩

     . ‘Commons:Reuse of PD-Art Photographs’, Wikimedia Commons, accessed 28 May 2020,
  https://commons.wikimedia.org/wiki/Commons:Reuse_of_PD-Art_photographs. ↩

     . Patricia Aufderheide, Peter Jaszi, Bryan Bello, Tijana Milosevic, ‘Copyright, Permissions, and
  Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities’ (Andrew W.
  Mellon Foundation, 2014). ↩

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