Techdirt has written a number of stories about museums and art galleries claiming copyright on images of public domain works. That’s really not on for institutions that are supposedly dedicated to spreading appreciation of the masterpieces they hold. The latest example of this unfortunate habit is a complex and fascinating tale involving the famous bust of Nefertiti, found a century ago, currently displayed in Berlin’s Staatliche Museen.

A rather improbable story that people had managed surreptitiously to scan the bust at high resolution piqued the interest of the artist Cosmo Wenman. It seemed likely that the 3D scan files involved had been produced by the museum itself, so Wenman decided to use German freedom of information laws to request them officially. As his long and fascinating post on the 3D Nefertiti saga explains, the German museum was singularly unhelpful:

it acknowledged the existence of the Nefertiti scan and acknowledged that the organization was required by law to give me access to it. But it also declared that directly giving me copies of the scan data would threaten its commercial interests. The Egyptian Museum sells expensive Nefertiti replicas in its gift shop, and it implied that it needs to protect that revenue to finance its ongoing digitization efforts.

In museum-world parlance, this argument against open access is known as “the gift shop defense.”

In the end, it turned out that the money generated by using the scans to make replicas was pretty minimal. Reflecting the weakness of “the gift shop defense”, the museum sent Wenman a copy of the scans, but with a twist:

To mark their territory, [the German body overseeing museums] had inartfully carved a copyright claim directly into the flat underside of the 3D model. And without explanation, it had included a Creative Commons “CC BY-NC-SA” license.

A good analysis of the situation by Michael Weinberg points out why this is bogus:

Creative Commons licenses are copyright licenses. That means that if you violate the terms of the license, you may be liable for copyright infringement. It also means that if the file being licensed is not protected by copyright, nothing happens if you violate the license. If there is not a copyright protecting the scan a user does not need permission from a ‘rightsholder’ to use it because that rightsholder does not exist.

The central issue is whether a high-resolution 3D scan of an object unequivocally in the public domain, is also in the public domain. An earlier article by Weinberg explains that in the US it seems clear that producing an accurate scan of a public domain object is also in the public domain. It’s slightly less clear-cut in the EU, but even there 3D scans are unlikely to be protected. Moreover, one of the few good things in the generally awful EU Copyright Directive is explicit confirmation that material resulting from reproducing art that is in the public domain is also in the public domain, “unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation”. An accurate 3D scan does not fall into that category — something that EU Member States could and should make clear when they implement the Copyright Directive in their national legislation. Weinberg also raises the issue of “moral rights” — things like a right of attribution and a right of integrity:

While removing attribution or intentionally modifying the work to remove the fake [CC] license might create problems if the Staatliche Museen was the ‘creator of the work’ for copyright purposes, that is not the case here. The Staatliche Museen did not create any work that is recognized under US (and soon EU) copyright law. That means that there is nothing for the moral rights to attach to.

A post on the Creative Commons blog points out the use of bogus CC licenses causes collateral damage beyond simply misleading people about what they can and cannot do with material that is in the public domain:

Creative Commons licenses are tools to allow users to better understand what permissions are being granted to the public by the creator of the original work. When a CC license is misapplied, the ability of CC licenses to be a standard signal for communicating copyright permissions is undermined. Mislabelling works creates confusion among re-users of works and limits the rights of the public to benefit from the global commons.

It is doubly reprehensible that supposed guardians of culture should not only be asserting intellectual monopoly rights they don’t have over materials in their collections, but that they should be undermining one of the most important tools available for promoting the sharing of culture — the carefully-calibrated range of Creative Commons licenses.

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