Considering legal and ethical frameworks of copyright

by Sarah Powell & Michaela O’Donovan

As the demand grows for cultural institutions to provide online access and reuse of collections through mass digitisation projects, new considerations regarding copyright legalities arise. As a cultural institution in New Zealand the collection is governed mainly by New Zealand copyright legislation (New Zealand Copyright Act 1994) which presents unique challenges when opening up our collection to a wider audience.

New Zealand copyright law differs from other jurisdictions, for example instead of a fair use exception we have a fair dealing provision, which greatly restricts how cultural institutions can manage their collections. Other challenges include a lack of a clear orphan works provision, ambiguous copyright duration terms for photographic material created prior to 1944 and heavy restrictions placed on how prescribed libraries can reproduce material for archival purposes. An exception to the challenges outlined is the shorter copyright duration length of life of the creator, plus fifty years from the year of their death. This means that copyright in works created in New Zealand expire and fall into the public domain twenty years sooner than other jurisdictions.

To navigate these legal challenges and the lack of clear provisions, the Auckland Museum has recently developed a copyright framework based on seven principles which guides the use and reuse of our digital collections.

The salient principle of this framework is that the Auckland Museum is open by default and restricted by exception. This position aligns closely with both the government-led initiative NZGOAL (New Zealand Government Open Access Licensing Framework) values and the international OpenGLAM philosophy. NZGOAL encourages the use of a Creative Commons CC BY licence as the default option for material in which there is no copyright or where government departments are the copyright holders.

A further principle states that the Museum will provide clear, consistent rights statements for all images that are published online. To ensure this is implemented a suite of five main rights statements were created in line with other New Zealand cultural institutions and are assigned across our collection. These statements include; All Rights Reserved, © Auckland Museum CC BY, No Known Copyright Restrictions, Copyright Undetermined- Untraceable Rights Owner, Cultural Permissions Apply.

The two most open statements, CC BY and No known copyright restrictions, allow images to be downloaded and reused for any purpose, even commercial use, as long as the Museum is attributed as the source. The other three statements respect either legal, cultural or ethical considerations and allow visitors to view the image, but not download it.

Where an image has an All Rights Reserved statement, this indicates that we have sought permission from the copyright owner to publish this image online. Over 11,000 objects have been classed as ‘orphan works’ meaning there is no known or traceable author after a due diligence search. When releasing images of these objects we are taking a calculated risk and we make these accessible, but not reusable, using the “copyright undetermined — unknown rights holder” rights statement. These works are accompanied by a takedown notice on our website, so if a copyright holder comes forward we have a policy on how to remove the image if they wish. This allows the Museum to publish works that would otherwise be restricted by copyright legislation, and also allows copyright holders to identify works and get in touch with us.

The ‘Cultural permissions apply” statement applies to images which depict Māori and Pacific content and allows these images to be accessible online for private research or study, under the New Zealand Copyright law fair dealing provision. The Museum has developed guidelines for users requesting the reuse of images that fall into this category and a process is followed to seek permission from the relevant communities if necessary. These are discussed below.

The “No known copyright restrictions” statement enables the Museum to release reproductions of 2D works that are deemed to be out of copyright and the Museum doesn’t claim any new copyright over these images.

Another important recommendation from the copyright framework is the introduction of a Creative Commons licensing option for copyright owners. On a trial basis this has been implemented through our copyright licensing agreement forms when requesting permission. To date there has been a positive uptake with many copyright owners choosing to assign a CC BY or CC BY NC licence to images of their works. This option only applies to digital reproduction of the object that the Museum has created, not the actual work itself. At the heart of this work is building harmonious relationships with copyright owners, ensuring that they are fully informed of all of their options and introducing them to new ways of sharing digital content.

Overall the copyright framework provides a fundamental platform that allows the Museum to contribute to the ever-growing wider pool of openly available data and images. And in turn new creative works are made, research papers are strengthened, profitable businesses are created — all from this pool of freely available cultural heritage material, encouraging a cyclical reuse of material that would otherwise be locked away behind a paywall.

Putting cultural care at the centre of the Museum’s practice

An appreciation of the Museum’s partner knowledge communities, different ways of seeing the world and caring for taonga is fundamental to the Museum’s work. The approach to caring for taonga accommodates Māori and Moana Pacific cultural values and reflects the partnership expectations of these communities in the telling of perspectives and narratives associated with their people and taonga, as well as the care and management of these objects. This is central to Auckland Museum’s guiding principles and values and is in line with the Museum’s commitment to nurture relationships as outlined in its strategic pathways He Korahi Māori and Teu Le Vā.

In the global, online context cultural care and open collections can be perceived as sitting uneasily alongside each other. The Museum’s journey has included developing clearer practice around the release of images containing Māori and Moana Pacific subjects (1) , based on appropriate cultural values and museum good practice. This process is intended to ensure cultural values are upheld while also supporting people to access and use these images.

In 2014 input was sought from a wide variety of New Zealand library, museum and external specialists to gain a range of perspectives; from this the museum developed guidelines for Auckland Museum staff responsible for considering the use of Māori images based on Māori cultural values and current museum good practice. The museum then consulted more widely across memory institutions around the Pacific, and developed a companion framework and practice for Moana Pacific images in 2016.

These frameworks provide direction for Museum staff in line with the Museums Aotearoa Code of Ethics (2). They sit alongside copyright legislation and are particularly intended for considering requests for use of orphan works, works in which Auckland Museum is the copyright owner or those with no known copyright. This approach lifts responsibility for respectful and informed decision-making from the individual to the organizational level.

When making decisions, legal status, appropriateness and the significance of the image or object are considered.

As with the entire online collections journey, the fundamental principle is to be open by default and restricted by exception. Aiming to increase access to and engagement with its collections and stories through its image library, the Museum takes a positive approach by assuming access will be provided unless there is a clear reason why approval should not be given. The exception to this principle is images which are known to be restricted, where the converse is the case (3).

This process relates to the representation of the subject or object (the image) as distinct from the subject or object itself, which attracts its own level of care. The images may be of Museum-held objects or have content which is external to the Museum.

Museums Aotearoa Te Tari o Ngā Whare Taonga o te Motu The Museums of New Zealand Inc, Code of Ethics and Professional Practice, 2013. Section 2.3: Museums will engage with people of the cultures concerned in the development of collections of cultural property, including their reproduction in digital and other formats. All museums will recognise the rights and interests of tangata whenua and Moriori in relation to cultural property.

Images of human remains are restricted except under exceptional circumstances.

The Museum also seeks to ensure that the requested images fit with the intended purpose and that cultural obligations are not compromised.

Under the principle of Manaakitanga, the Museum ensures requests are dealt with in a timely manner and that there are clear pathways of communication, including explanations.

The principle of Mana Taonga is about safeguarding the mana (authority) of the taonga. There is also the potential to enhance the mana of the taonga, when it is connected with the journey, stories and iwi (tribal groups) it is related to.

The principle of Mana Whenua guides the Museum in its obligations to partner knowledge communities, whether they are defined or implicit. The duty of care is to uphold the mana of the communities that are associated with Māori images, no matter whether the connections are active or latent. The Museum is cognizant of the tupuna (ancestors) associated with a Māori image and the future generations to come.

Responsibility ultimately lies with the communities from where images are derived, even if this responsibility is not able to be activated. The Museum applies a wide understanding of ownership and tries to identify all iwi interests and relationships. Where practically possible, requests are referred to the owners or relevant iwi/hapū (tribal grouping). The preferred approach is to assist the requestor where it is reasonable to do so.

Under the principle of Kaitiakitanga, a high level of care is given to all Māori images and a peer review process is undertaken if there is any question or high degree of complexity over an image request. There is a well-defined chain of decision-making that can be called upon if required.

Companion guidelines were developed for images with Pacific content in 2016, after an international process of consultation. Two principles from Teu Le Vā were identified as relevant:

Respect and Integrity are about upholding the Museum’s obligations to our source communities, whether the relationships are active or not. This involves showing respect to people, items, subjects, key events, spiritual beliefs and to requestors. Integrity is about supporting communities to divest themselves of colonial views and interpretation of people, events and material culture.

The principle of Authenticity supports the ethical sharing of indigenous world views and knowledge and guides us in our obligations to our source communities.

To date the frameworks have been effective in responding to all 200+ requests received since their implementation. The Museum ensures consistency throughout the process and across the organization by utilizing the collection management systems to document all decisions, note established precedents and build the Museum’s body of knowledge. No challenges had been forthcoming from either source communities or requestors and all decisions have been provided within a week of receiving the required information. Only 3 requests have been declined, including one internal request.

More importantly though, by putting cultural care at the centre of our practice the Museum aims to ensure that, while it is embracing the OpenGLAM philosophy, it is not inadvertently repeating colonial practices of the past by inappropriately making materials available for re-use.

Our Contribution to the Commons

As Auckland Museum’s collections are shared with the world, the community is enabled to engage with, use and reuse them. To date more than one million items and over 300,000 images have been released — free, open and downloadable under a CC BY license. There are 5,000 data enhancements made daily and 2,000 new objects online every month. The open data API is sharing the collections with a global audience and in this way is providing open access to cultural data on a scale not seen before in the New Zealand sector.

It is early days in the Museum’s open by default journey, and the Museum team gratefully acknowledges the generous support of colleagues from other memory institutions and partner knowledge communities.

With 2.5 million downloads of Auckland Museum’s collection records in the 12 months to July 2017, it is encouraging to see the interest in and appetite for this material internationally. It is clear that Auckland Museum’s online collections are contributing to the global body of knowledge relating to the natural and social history of the Auckland region, ethical partnering with Māori and Moana Pacific knowledge communities and New Zealanders’ involvement in international conflicts, in a robust and ethical way.

As the Museum makes further progress, there will no doubt be further considerations and challenges to work through. We are confident that by making our collections available to all via Collections Online we have made a positive start and embrace the work ahead of us.