The Phillips Museum Digital Collection Project Part 1
This week is Open Access Week. What is the “Open” Movement about? It is a term that is often applied to journals, literature, content and data. More specifically the term “Open Access” refers to the concept that scholarly and government publications should be freely accessible via the Internet. In 2008, the Faculty of Arts and Sciences at Harvard University voted to adopt an Open Access Policy, which was followed by MIT, Berkley, Cornell, Dartmouth and eventually Yale.
The term “Open Data” refers to the philosophy “that certain data should be freely available to everyone to use and republish as they wish, without restrictions from copyright, patents or other mechanisms of control” (Wikipedia). Folks who support Open Access and Open Data believe that the availability of these resources helps to stimulate new research, discovery and creativity and doesn’t necessarily infringe upon the original creator.
Copyright law is incredibly complex. In current U.S. copyright law, Intellectual Property is protected for 70 years after the creator’s death, offering legal and economic protection to the creators and their families, foundations and corporations. This helps to provide incentives for individuals and corporations to keep creating and publishing new original work. Eventually, after a long period of time, the work falls under “Public Domain,” in which the public is free to use, distribute or reuse the work without copyright restriction.
At The Phillips Museum, we are currently working on making our Public Domain works more accessible via a new online database running on a platform called eHive. Copyright can be an especially tricky thing for art museums. Copyright law has changed several times over the last century resulting in a range of rules that determine when creator copyright ends and when the Public Domain begins. Museums do not automatically own the copyright for works in the collection. Artists retain the copyright even if the work was sold or donated, unless they choose to legally transfer the copyright to the collector or museum, or until the work falls into the Public Domain.
Providing online access to works in which the copyright is owned by an artist or an artist’s estate requires permissions, licenses and fees, even for educational institutions such as ours. The doctrine of “Fair Use” is still being tested in the digital realm and museums are moving forward with great caution. Contrary to popular belief, using an image for noncommercial purposes is not considered “Fair Use.” There is a four-part litmus test that determines whether use of an image is “fair” and these guidelines are subject to interpretation by a court of law, if the use is challenged. There are several test cases examining whether the use of thumbnail images to point users to a digital resources is considered Fair Use. One of the most notable cases involving Google.
Fortunately, we have quite a few materials that fall under the scope of Public Domain, which we will be providing online access to in the upcoming year. Also, we were very fortunate to have acquired the legal transfer of copyright for a major body of work that was gifted to us.
As this project moves forward, we will provide updates and continue to discuss some of the issues and challenges related to making collections resources available online.