Permission Unpossible I

Sunday, March 2, 2008

Permission Unpossible I

Being some final observations and background to
the production of the BibliOdyssey Book. (What book?)
The second and last part of this essay will appear either
later this week or next week. Then it shall be put to rest.
When the UK firm, FUEL Design, first made contact to say they liked BibliOdyssey and ask if I had any interest in turning the weblog into a book, I didn’t know anything about them as publishers. I found an article at the Design Museum which provided some background details and I was interested to discover that they had been involved in producing the Russian Criminal Tattoo books from a couple of years ago. I had heard good things about this series so I was fairly satisfied that FUEL was worth listening to, even if I wasn’t overly confident that anything would come of it.

I invited them to elaborate on the book idea and they provided a brief overview. They envisioned a collection of about two hundred interesting images, many having appeared on the weblog before and a further selection that would be unfamiliar to regular readers of the website. I would provide my normal style of accompanying commentary and be listed as author, and FUEL would edit, design and publish the finished product. My initial positive reaction towards them was confirmed when they forwarded a selection of their books. This was obviously a publishing firm of novel versatility.

The most memorable comment from our early exchange was FUEL’s rather simplistic conclusion that all of the images on the BibliOdyssey weblog appear with unambiguous permission. There may well have been a raised eyebrow and an element of wishful thinking buried in the subtext but, as I was to find out, FUEL weren’t overly familiar with the day to day workings of the weblog universe.

On occasion, I have specifically sought permission from webmasters to post material to the BibliOdyssey website. Now and then I’ve been contacted by an artist or librarian who have advised of source works in which they played some role. I have also approached varying website personnel seeking more information about exhibits or about prohibitive site policies, or merely to pass on compliments and advise of my intentions with respect to the source material. These interactions resulted in either tacit or explicit permission being granted to download and post images in entries here.

But, however misguided or contestable in an ethical or legal sense, the majority of entries appearing on this weblog operate on the assumption that by being thorough about identifying and linking to the source material, I am satisfying all, or close to all, concerns of the artist, digital image host, book and copyright owner or their agent(s).

One of the great benefits of the web, in the publishing sense, is that material can be removed if justifiable objections are raised by interested parties. I have never received such a request relating to the BibliOdyssey site1. And if there is one overriding truth or ethos that has been born out by the production of the BibliOdyssey book, it’s that if you are careful and consistent with naming and linking to the source material online, then libraries, galleries and other repositories will, more often than not, respond favourably when you come knocking on their doors seeking permission to use their images out in the real world. In sport, it’s otherwise known as fair play.

This immediately brings us to a kind of crossroads in technical, if not strictly legal, differences between publishing on the web and in the hard-copy world. While the superficial frontier style of legality online means that, for most practical purposes, if you manage to avoid plagiarism and libel, it’s unlikely that anything dire will result from having a weblog, beyond perhaps being required to remove an entry, which is an easy few mouse clicks away. A real book is a completely different animal, of course. The costs associated with pulping thousands of copies - let alone any punitive consequences from the courts – due to copyright or licensing transgressions are impossible to disregard or treat casually. So FUEL’s naïve expectations that the images displayed on this weblog always appeared with explicit approval from the source or owner was, to say the least, a wake up call for us both, giving some sense of the work ahead.

From the very beginning this was a speculative project. There was no advance and no budget, beyond the printing costs. A contract was forwarded for my perusal and, after some changes suggested by one of the lawyer types in my family were accepted by FUEL, the unsigned document was filed away and never mentioned again; well yet, anyway. Beyond the initial brief outline, the project was to evolve organically from discussion rather than from any master plan. FUEL’s one addendum to that original sketch was the vague idea of evoking an “eccentric Victorian collection of images” and, looking back, that was undoubtedly a temperament of demarcation against which I battled throughout the year long development process.

Although the division of labour was blurred, FUEL started sifting through the weblog archives, picking out images they thought were contenders for inclusion. At that time, there were only a couple of works that came to my mind that I definitely wanted in the book, if the necessary clearances could be obtained. We drafted a pro forma letter to seek permission – individual image/repository details and a copy of the image to be added when they were sent out – and we tweaked an old legal release form that FUEL had used previously, which would accompany each letter of request.

I began doing some background reading about copyright and permissions to try to get some level of understanding of our responsibilities. Even to the casual observer, Intellectual Property is a complex field of law, but it is made all the more complicated when variations in statutes and limitation periods between countries are factored in. Any thorough distillation of the relevant legal principles is beyond the scope of this article, let alone my meagre abilities. Regardless of the convoluted process that may be involved, it is nevertheless essential to determine the copyright status for each and every image when preparing a book for publication. And the responsibility for assessing that copyright status falls on the person who wishes to use the image: claiming ignorance will not save you in a law suit.

To my way of thinking, the two most important legal concepts that would at least partly affect the project relate to the year of 1923 and the case of Bridgeman Art Library -v- Corel Corp. In the United States (but really, this seems to be a fairly useful measure for many countries)
“all books and other works published before 1923 have expired copyrights and are in the public domain.”
The Bridgeman case basically says that exact photographs of public domain works can’t themselves be covered by copyright. If copyright has expired on a book, for example, a photograph (and by logical extension, a digital file hosted online of that photograph) of an illustration from that book does not acquire a new round of copyright protection. It’s a district court case and it doesn’t carry a huge amount of weight, but it has nevertheless had a significant – though definitely not universal - impact around the world in, for instance, the policies of some institutions towards their digital holdings.

These two topics are only sidelines to practicalities however. It just so happens that most of the material posted to the BibliOdyssey website tends to be old and so copyright didn’t often enter into the debate, per se; although the 1923 date did have an influence on our image choice at times. We were generally agreed that using the Bridgeman case as a point of argument was a fairly indelicate approach. As we were to be contacting people from a lot of repositories in a range of countries, we hoped to establish positive relationships from the outset. Advocating for cooperation based on the premise that we expected to introduce their collections to a wider audience is one thing, but it’s quite another to attempt to hammer home some sort of advantage by quoting case law, particularly when the precedent originates in a foreign country. Persuasion, rather than aggression, was the order of the day.

The dominant consideration for our project actually turned out to be the policies followed by individual libraries and museums. I confess to not really understanding what legal principles govern the restrictions that institutions apply to the use of their online collections. Regular property rights I suppose. There may be no copyright involved but it is undeniable that a library that digitises an old book and posts the images online does actually own the digital files. The extent (legal, ethical or otherwise) to which they are allowed to control how a person may use those digital files is something of a controversial topic. On the one hand, many institutions are owned by governments and one might conclude that their stock is therefore owned by the people. But economic reality pressures some institutional boards into drafting policies that enable them to earn at least part of their income from licensing fees attached to their holdings. Obviously this all has a fairly large political dimension and, while it might be a principle worthy of activisim at the local or national level, it was outside the purview of our image scrounging enterprise.

1One academic in Germany was unhappy about my manipulating a web address to display and dowload high resolution full page images of a certain illuminated manuscript (the default view was of partial page sections). He only discovered this when he was approached for permission to use one of the images in the book. He declined both my offer to remove the relevant entry from the weblog and also the request for permission to include a manuscript image in the book.

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