Museum image fees - a call to arms (ctd.)

October 23 2017

Image of Museum image fees - a call to arms (ctd.)

Picture: Tate

Further to my various posts (here and here) on UK museums and their increasingly absurd reproduction fee policies, a reader has investigated in detail the exact wording of the Creative Commons licences that many UK museums rely on. He has found that museums are in fact acting against the spirit and letter of the licences, and have wrongly changed the terms of the licence to specifically make it easier to charge extra fees - especially in regard to academic use. And by doing so these museums are actually forfeiting their ability to use Creative Commons licenses.

First, a quick word on what a Creative Commons license is, from the CC website:

The Creative Commons copyright licenses and tools forge a balance inside the traditional “all rights reserved” setting that copyright law creates. Our tools give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work.

Now for the details - the reader writes:

Have you looked much at Creative Commons licences? Tate gets to sound all open and liberal by using one, but actually they don’t abide by either the spirit or the letter. [...]

Tate uses a "CC-BY-NC-ND 3.0" licence. On the Creative Commons website it says ‘you may not apply legal terms or technical measures that legally restrict others from doing anything the license permits.' But that is the very thing Tate has done when they state what 'a commercial' use is.

The original CC licence itself (section 4.b, here) states merely that “You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” But Tate’s version of the licence’s non-commercial stipulation goes further: “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’". Tate further defines commercial use 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.’ “ (here).

Also Tate say: “The image can be used only in contexts that are free from monetary gain or commercial value. Images cannot be used to sell or promote something; they cannot be used in or on something that is charged for or associated with money; nor can they be used in advertising or design contexts. Images cannot be used by commercial companies, charities or organizations that charge entrance fees, membership, or subscription to a service.” (on this page) and on the same page they clarify that a “commercial context [is] (anything that has a monetary value, is promotional or related to a commercial company or charity)”.

So they’ve gone from ‘primarily intended for… commercial advantage’ to entirely ‘free from monetary gain’; and from ‘monetary gain’ - profit or income - to ‘monetary value.’

Associating commercial use with economic gain is fair enough - we can debate its limits of course. But leaping from gain to mere value is huge and bonkers. Literally everything in our world has economic value. We live in a massively commercialised society: how can Tate’s images be used in any context not ‘associated with money’, ’in contexts that are free from …commercial value.’?

Bonkers indeed. But the major point here is that in their actions institutions like Tate have forfeited the right to use Creative Commons licences. The whole basis of their policy for distributing images and charging fees is actually invalid. Here is the relevant part of the Creative Commons rules, from CC's FAQ page:

Can I change the license terms or conditions?

Yes—but if you change the terms and conditions of any Creative Commons license, you must no longer call, label, or describe the license as a “Creative Commons” or “CC” license, nor can you use the Creative Commons logos, buttons, or other trademarks in connection with the modified license or your materials. Keep in mind that altering terms and conditions is distinct from waiving existing conditions or granting additional permissions than those in the licenses. Licensors may always do so, and many choose to do so using the CC+ protocol to readily signal the waiver or additional permission on the CC license deed.

As our reader here concludes (not least because institutions like Tate and the British Museum use the Creative Commons name and logo on their websites)

It’s clear, then, that both the BM and Tate are breaking the terms of Creative Commons licences.

Update - another entry on the Creative Commons FAQ page reveals that institutions like Tate should not be claiming copyright on the vast majority of works for which they are selling licenses:

If I take a photograph of another work that is in the public domain [ie, a painting hanging on a museum wall], can I apply a CC license to my photo?

That depends. You can apply a CC license to your photograph if your photograph constitutes a work of original authorship, a question that varies by jurisdiction. As a general matter, your photograph must involve some creative choices, such as background setting, lighting, angle, or other mark of creativity. In the United States, an exact photographic copy of a public domain work is not subject to copyright because there is no originality (even if there is effort or “sweat” exerted in its creation).

Although there has been no definitive ruling in Europe, it's highly unlikely that a test case would arrive at a different rulling than in the US. 

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