We write to you today on the subject of http://SmithsonianImages.SI.Edu, a government ecommerce site built on a repository of 6,288 images of national significance. The site is breathtaking in scope, with imagery ranging from the historic cyanotypes of Edward Muybridge to historic photos from aviation, natural history, and many other fields. If the Smithsonian Institution is our attic, these photos are our collective scrapbook.
However, the web site imposes draconian limits on the use of this imagery. The site includes a copyright notice that to the layman would certainly discourage any use of the imagery. While personal, non-commercial use is purportedly allowed, it requires a half-dozen clicks before the user is allowed to download a low-resolution, watermarked image. An image without the watermark and at sufficient resolution to be useful requires a hefty fee, manual approval by the Smithsonian staff, and the resulting invoice specifically prohibits any further use without permission.
For some photos, the prohibitions go even farther. Aviation photos, for example, come from the National Air and Space Museum (NASM), which states, among other efforts to overreach, “even in the absence of copyright, Smithsonian still reserves all rights to image use.” Are these prohibitions on reuse valid? We showed the NASM copyright page to Yochai Benkler, a Yale law professor. Benkler wrote back that the unilateral and unequivocal claims were “nonsense on stilts.”
The Smithsonian Institution is a trust instrumentality of the United States of America chartered by the U.S. Congress to „increase and diffuse knowledge.“ 20 U.S.C. § 41 et seq. The Smithsonian’s Board of Regents is chaired by the Chief Justice of the United States and the Institution receives over $650 million in federal funds every year.
To understand why the Smithsonian is over-reaching when it comes to photographs, one must remember that works of the U.S. government have no copyright protection whatsoever. Works of the United States Government are in the public domain. 17 U.S.C. § 105 While there are subtle exceptions, such as work prepared by private contractors exempted under special exemptions established in the Federal Acquisition Regulations ( FAR 52.227-14), the general principle is quite clear and applies just as much to the Smithsonian Institution as to any other part of our federal government. As Rachell V. Browne, Assistant General Counsel of the Smithsonian Institution said in a statement submitted to the U.S. Copyright Office:
“The Smithsonian cannot own copyright in works prepared by Smithsonian employees paid from federal funds.”
The Institution makes a great show of the distinction between “federal” employees and “trust” employees. But, this distinction is based on an obscure 1962 non-binding opinion [Application for Registration of Claim to Copyright Protection of Publication Entitled “The White House – An Historic Guide,” Op. Off. Legal Counsel (October 26, 1962)]. As a matter of policy it is difficult to conceive of two Smithsonians, a federal institution accountable to the American people and an ironically named „trust“ somehow allowed to act as a private, opaque body accountable to only the whims of management. Even if one is to carve off a “private trust” with different rules from those that apply to agencies of the U.S. government, one must remember that the trust is registered under Section 501(c)(3) of the IRS Code and is thus required to perform actions that directly promote the declared charitable purpose, which in this case is to “increase and diffuse knowledge.”
Because the overwhelming majority of the images in http://SmithsonianImages.SI.Edu appear to be public domain, and because the draconian notices on the site have a dramatic chilling effect on use of these historic images and national symbols, we have performed several actions that we hope will allow others to examine the public domain status:
1. We downloaded all 6,288 images, scraped the metadata from the html pages, and embedded the metadata in the .jpg headers. These images are low-resolution and contain a watermark, and were all previously available on-line.
2. The images were uploaded to Flickr, a popular photo sharing site.
3. The images were loaded into 262 contact sheets and formatted with a cover for printing as an e-book. The book is available for free download or a printed copy may be ordered.
4. A tarball of the images was created and is available by download by ftp or http.
5. Three of the high-resolution, non-watermarked images of Muybridge Cyanotypes were purchased, and a series of derivative works were created and posted.
We have three goals in diffusing this knowledge:
1. The unwieldy archive of low-resolution images on the Smithsonian site makes it hard for people to ascertain the public domain status of the vast majority of these images. By placing the database on sites such as Flickr and in convenient-to-examine PDF and tarball formats, we hope that the Internet commnunity is able to form a better judgement.
2. Some images are clearly in the public domain and of immense public importance. For these images, our nonprofit organization is attempting to systematically purchase these images and place them on the net for use without restriction.
3. We would like to see the Smithsonian adopt a policy for on-line distribution that is much more closely aligned to their mission, focusing on vastly increasing the store of public domain materials available on the Internet.
There are many rewards, but also certain obligations that come with public status. Just as the U.S. Congress could not turn the video from congressional hearings into copyrighted materials, so our Smithsonian Institution lacks the right to encumber the public domain that is our nation’s attic. This is not to say that the Smithsonian cannot obtain funds through creative means, only that the Institution should be cognizant of a special and unique status under our laws. One has only to look at the thriving Smithsonian Associates program or the wildly popular Smithsonian Folkways music site to see that there are many options for government entities to creatively raise funds. Privatizing the public domain is not one of those options.
http://Public.Resource.Org is a new non-profit dedicated to the creation of public works projects on the Internet. Our initial area of focus is increasing the flow of information in both directions between the U.S. government and people. Our founders are Carl Malamud and Marshall T. Rose. Our board of directors include Randy Bush and Hal R. Varian. Additional information about our legal structure is contained in our Articles of Incorporation and Bylaws.
Read Peter Hirle’s comment at
Deven Desai on the case
An important comment from the Canadian point of view
The issue is an important one that should also resonate in Canada. Some readers may recall the battle between a small school division in Manitoba and the National Gallery of Canada over fees levied for a public domain Paul Kane painting. In the wake of that incident, I’ve been working with some students to identify how Canadian museums address access to public domain works in their collections. The research is not yet complete, however, the preliminary news is not good.
Museums are strapped for cash and therefore use their physical control over images to levy fees over public domain works. While a cost-recovery fee for digitization or administration is understandable, many institutions go much further charging „surrogate copyright fees“ or „user’s fees“ for public domain works or deploy technology to limit the potential uses of digitized versions of those works.
For example, consider Emily Carr, whose work entered the public domain in 1996.
A B.C. site focused on Carr advises that her work is in the public domain but that reproductions of her works are subject to copyright, which resides with the galleries. The Art Gallery of Ontario’s excellent Collection X site features some of Carr’s work, with a copyright notice as well as low-resolution photographs that limits the ability to re-use the image. The AGO is not alone – Canadian Heritage’s Artefacts Canada posts thumbnail images of hundreds of Carr works all implying that the works are subject to copyright.
These claims are open to serious challenge. The seminal case on point is a U.S. decision, Bridgeman Art Library v. Corel Corp., in which the court ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality (the court also ruled that it thought that UK copyright law would treat the issue in the same manner).
It is very likely that Canadian courts would adopt the Bridgeman analysis. The Supreme Court of Canada’s CCH decision addresses the issue of originality under copyright, with a unanimous court ruling that:
For a work to be „original“ within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce „another“ work would be too trivial to merit copyright protection as an “original” work.
The court went on to state that:
this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation.
So what does this mean for images of public domain works? As the court says, the image must be more than a mere copy of another work. In many instances (ie. the Carr images), it does not appear that there is anything more than a mere copy of a public domain work. While museums are understandably searching for revenue streams, doing so on the basis of misleading copyright claims is not the way to do it. In fact, as Canadian Heritage Minister Bev Oda finalizes the long-awaited museum policy, she should use the opportunity to say so by creating a clear link between access to public domain works and public financial support for the institutions that house those works.