When digitised, the significance of a museum object changes. Digital cultural heritage has the potential to be available in a limitless, global and interactive manner. (1) Museums are obligated to promote access, (2) thus digitisation is a useful tool. However, dissemination, a vital component in using digitisation to promote access, also necessitates a certain loss of control. In order to balance these two opposing factors, museums have resorted to copyright law. This tension between access and control, and the role that intellectual property (IP) law plays in this, has already received academic attention. (3) However, 3D scanning, a newly available technology and one which museums are now using extensively, has been given little consideration in this context. (4) The new technological format impacts how IP law balances access and control, providing an opportunity for current approaches to be re-assessed.
Despite the new technology, museums are continuing to implement their traditional copyright approach to digitised objects. However, 3D scanning, being highly autonomous and accurate, renders the legal validity of copyright questionable. Uncertainties over classification and originality are exacerbated by unclear harmonisation attempts in the Court of Justice of the European Union (CJEU). Copyrighting 3D scans also bastardises legal precepts, monopolises the public domain and lacks both practical effect and the nuance to manage cultural heritage, making it an unsuitable legal mechanism for this context.
After assessing several options, this paper makes an alternative proposal for balancing the tension between museum control and public access. The proposed method is radical. However, technological advancement and mass digitisation arguably require a bold and innovative approach to intellectual property. The proposal would allow museums to manage their interests in digital cultural heritage in a fair and transparent manner which does not undermine public access rights.
This paper focuses on scanning public domain works. These scans can be considered in isolation, without the need to assess the underlying object's copyright. Relatedly, since there is no risk of infringing a copyright in the original object, museums are likely to focus their digitisation efforts on public domain objects, making this the most relevant area for analysis. The public domain status of the objects will also impact where the appropriate balance between access and control falls. Supporting respect for the public domain will be a major theme throughout this discussion.
The focus is British museums, therefore United Kingdom (UK) law is the main consideration. The term 'UK law' is used because the relevant IP laws apply across the United Kingdom. (5) European Union (EU) law is also addressed because, at the time of writing, the continuing impact of EU IP laws in the UK remains unclear, despite the UK no longer being an EU Member State. At the least, it is known that nothing will change until the end of the transition period, on 1 January 2021. (6) When useful for comparison, other common law jurisdictions are also considered.
Museums, as public-facing entities, have complex obligations which legal analysis alone fails to address. Therefore, this paper takes a relatively holistic approach, ensuring ethical and cultural issues are also considered. Finally, although the term 'museum' will be used generally throughout, the observations made could apply to all cultural institutions digitising objects of cultural heritage through 3D scanning.
SETTING THE SCENE
Before subjecting the copyright status of 3D scanned public domain works to legal analysis, we must appreciate the context. It is important to understand why the tension between access and control exists for museums and how IP law is currently being used to address this. Having properly understood institutional motivations and concerns, the legal situation can then be comprehensively examined.
The Basic Problem--Access Versus Control
In order to determine where the appropriate balance between access and control will fall, the reasoning behind these competing aims must be understood. Promoting access is inherent within the museum's function as a public institution which holds its collections for the public benefit. (7) When museum objects are also in the public domain, the obligation to promote access needs little clarification.
In light of the responsibility to provide access, the retention of control requires more explanation. Two reasons have been identified for maintaining control: protection of artistic integrity and protection of revenue. (8) The first reason is demonstrated by the International Council of Museums' (ICOM) Code of Ethics, which requires that the impact of reproductions on the original object's integrity is considered. (9) However, the treatment of digital reproductions has little influence on the value ascribed to originals. This is known as the 'Mona Lisa Effect' and is demonstrated by the continued value placed on Da Vinci's masterpiece despite its presence on various, sometimes unsophisticated, paraphernalia. (10) Therefore, protecting integrity provides insufficient justification for asserting control over digital reproductions.
The second, more pressing reason is control for revenue-generating purposes. Museums in the UK are under considerable financial strain, (11) demonstrated by their continued reliance on controversial funding despite public protest and trustee resignations. (12) Digitisation itself requires investment which must also be considered. (13) Given these pressures, this paper accepts that it is appropriate for museums to exploit digitised collections to regain investments and support themselves generally. The World Intellectual Property Organization (WIPO) has endorsed such an approach. (14) Furthermore, to argue otherwise would undermine the promotion of access by threatening sustainability. Future access can be guaranteed only if some level of control for financial stability is retained in the present. Museums' ethical obligations require consideration of future audiences, (15) making the need to find the appropriate balance between these two conflicting pressures imperative.
Open Access--New Model, Same Right
Current practice is based upon the premise that digitisation gives the museum a copyright in the reproduction it creates. On the basis of this presumed copyright, those who wish to make use of digital reproductions must be given a licence by the relevant institution. (16) Traditionally, licences were granted on an individual basis, as exemplified by V&A Images, the Victoria and Albert Museum's (the V&A) digital picture library. (17) However, this approach is increasingly unpopular for being costly, time consuming and complicated. (18) Particularly for academic and scholarly licences, overhead costs render the model unprofitable. (19) Nonetheless, a study on licensing models in this context has recognised that the British Museum and the V&A were profiting from commercial-use licences. (20) It is therefore apparent that digital collections have the ability to produce significant income.
Nevertheless, a new model for managing digital collections has developed. This is known as 'open access'. (21) As epitomised by the 'Web 2.0' mentality of user-centrality, we now expect to participate without prior permission. (22) Whilst defining 'open access' is notoriously difficult, (23) generally it requires promoting access to content with limited restriction. (24) Importantly, open access is still premised on copyright and it is still a licensing model. However, these imaginative licences grant licensees freedom of use, subject to conditions, without needing to seek the right-holder's permission. Creative Commons (CC) licences are among the most common of these open access licences.
Open access has evidently influenced the museum sector in how it manages its digital image collections. Most famously, the Rijksmuseum has made over 111,000 images available online. (25) The European Union has embraced the movement, setting up Europeana to make digitised works from EU cultural institutions publicly available and funding the OpenGLAM (Galleries, Libraries, Archives and Museums) initiative, which encourages free access to cultural heritage. (26) Nonetheless, some institutions do retain traditional image licensing models. (27)
Museums have more readily embraced open access for 3D scans. The 3D printing community relies on online platforms which allow users to upload and share 3D digital files, such as those produced through 3D scanning. (28) These websites encourage their users to apply CC licences. (29) Museums have elected to share their scans via these websites and, consequently, have been compelled to embrace the open access culture on which these online communities thrive. For example, the British Museum makes its 3D scans available, via the platform 'SketchFab', under a CC-BY-NC-SA licence. (30) The licensee can use the scan provided they acknowledge the British Museum as copyright owner, do not use it commercially and share derivatives under the same licence. (31)
Impact of Open Access on Access and Control
Although the open access model is inspired by a desire to share without restriction, this does not mean that museums must relinquish all control. Financial exploitation is still possible under open access, as the use of non-commercial CC licences demonstrates. These licences restrict use to non-commercial situations so that commercial uses still require express approval and, most likely, payment of a fee. Even the Rijksmuseum retains control over its highest quality images for retail uses. (32) 3D scanning offers similar opportunities for financial exploitation. For example, a movie producer was allowed to scan the V&A's cast of Michelangelo's David. (33) Given the commerciality of the endeavour, the museum must...