Develop an “open data” policy framework for museums

A - Issue at stake

  • The technological revolution of recent years has led to a rapid and exponential growth of data, including in museum environments. Open cultural data1 policies, that allow data to be combined in novel ways to develop new products and services, play an important role in furthering research, learning and stimulating economic growth. National laws and practices on the re-use of public cultural resources, however, vary considerably. These differences and the absence of clarity they generate present a barrier to realizing the economic potential of cultural resources.
  • Some projects, such as OpenGLAM, have already submitted principles and guidelines to help museums open up their collections and metadata.2 Yet, given the legal issues and uncertainties that exist in terms of making cultural resources available as open data, to date only the larger institutions3 have been willing to implement open data policies in respect of works already in the public domain.
  • If digitized cultural material is to be made available as open data several issues still need to be resolved, including:
    • Lack of co-ordinated international framework: Whilst the European Union has attempted to harmonise national laws and policies to encourage the re-use of digitized cultural material in open data format,4 similar initiatives at an international level are lacking.
    • No obligation for public museums, libraries and archives to provide digitized cultural resources as open data:  At the European level, despite the harmonising provisions of the Revised PSI Directive, public museums, libraries and archives have considerable discretion in deciding what information to make available as open data and whether the accessibility and/or re-use shall be free of charge. Re-use and/or the free-of-charge is not mandatory.
    • Disparity between public and private institutions: Existing legislation concerning open data, such as the Revised PSI Directive, applies only to museums and cultural institutions in the public sector5 and not to independent or privately funded cultural institutions (including certain university museums). This results in a two-tier system. The position of museum trading companies, which are often independent of the museum and wholly commercial in nature, should also be addressed.
    • Absence of harmonised or inter-operable open licences: IIn the cultural sector, there is no coherence in the type of “open” licenses, used as part of open data policies. Whilst the international standard is the Creative Commons (CC) licensing framework,6 different countries have established their own open licences.7
    • Unresolved challenges of intellectual property rights: National laws and policies approach differently the question of whether digitization creates a new copyright work or simply results in an un-original work not qualifying for protection (see Proposal 5). The scope of exceptions granted to cultural institutions for certain acts and uses also varies between countries (see Proposal 1 and Proposal 7). In addition, intellectual property rights may conflict with the attempt of open access policy framework (in particular copyrights of a digitized work owned by the artist or a third party)8
    • Legal uncertainty in the treatment of orphan and out-of-commerce works: Uncertainty regarding the rights underpinning orphan and out-of-commerce works, make cultural institutions reluctant to include such works in their digitization projects and make them freely available as open data for re-use.

B - Clarifications

  • Measures which should be adopted to facilitate making cultural resources available as open data include:
    • Developing an open data policy framework for museums, libraries and archives: A co-ordinated international framework should be developed and supported by relevant international sector specific organisations, such as ICOM and WIPO. Such framework should operate as follows:
      • materials falling into the primary “public task” function of the museum (such as catalogues and academic texts) should be subject to the mandatory “open data” provisions.
      • materials falling into “commercial merchandising” categories should be exempt in order to preserve revenue streams on which the museum relies for its operations.
    • Resolving intellectual property challenges:  Reaffirming that the treatment of orphan and out-of-commerce works and that the act of digitization do not create a separate copyright, in order to help museums identify and include these works in their open data policies.  Clearer exceptions for museums engaging in certain acts of digitization and communication and the development of “safe-harbour” rights statements could also assist (see Proposal 8)9, as would improving rights information databases and collective licensing systems for granting open licences (see Proposals 1, 3, 7 and 12).
    • Creating sector specific inter-operable open licences:  Developing a harmonized set of open data licenses which are specific to the needs of museums and which are free and inter-operable with Creative Commons licenses, covering both copyright and database rights, could provide a useful basis for museums to establish open data policies.