“No known copyright restrictions”? Not really

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Pic: 'Untitled' by 'Unidentified photographer' but (still) copyrighted 'Smithsonian Institute'

I’m doing some research on what museums and cultural heritage institutions are doing to put their collections online and make them more accessible. A wonderful resource is Flickr Commons (wish we’d had it for our Heritage Day project!) with the goals of  1) increas(ing) access to publicly-held photography collections, and 2) providing a way for the general public to contribute information and knowledge.

Participating institutions have to make a public statement that there are “no known copyright restrictions” – in cases such as:

  1. The copyright is in the public domain because it has expired;
  2. The copyright was injected into the public domain for other reasons, such as failure to adhere to required formalities or conditions;
  3. The institution owns the copyright but is not interested in exercising control; or
  4. The institution has legal rights sufficient to authorize others to use the work without restrictions.

But the Smithsonian Institute’s Rights Statement is confusing. Instead of there being ‘unrestricted access’ and ‘no interest in controlling usage’, their statement indicates that they do, in fact, wish to exercise control, that there are, in fact, certain restrictions, and that your rights are limited to those that you already have according to fair use law in the United States (that’s according to the statement, but the FAQ adds to the confusion). Below are some exerpts from the notice:

‘Text and image files, audio and video clips, and other content on this website is the property of the Smithsonian Institution’

‘Fair use is permitted’ (so kind). They do specify what (they believe) constitutes fair use, but leave out online publication (putting it in the FAQ at the end of the page instead).

And then, most interesting:

‘Anyone wishing to use any of these files or images for commercial use, publication, or any purpose other than fair use as defined by law, must request and receive prior written permission from the Smithsonian Institution. Permission for such use is granted on a case-by-case basis at the sole discretion of Smithsonian’s Office of Product Development and Licensing. A usage fee may be assessed depending on the type and nature of the proposed use.’

So if you’re a community organisation wanting to build your own collections to spread access even further, this particular ‘commons’ is out of reach.

Don’t get me wrong – I think this is still a great initiative. But it really makes me realise how important it is to expose institutions who claim all the glory, when they are not quite there yet. For me, a real digital commons is one that fully enables downstream re-use and re-publishing. For the Smithsonian images, at least, Flickr Commons enables us to look but to definitely not to touch.

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