It has come to our notice that an individual has published images of a number of manuscripts photographed by DIAMM and several of our partner libraries on IMSLP. I appreciate that this person probably felt they were providing a service to his fellow researchers and musicians, but in fact he may have single-handedly damaged or even destroyed the future of manuscript image delivery online.
Not only is this a breach of the copyright licence signed when creating an account with DIAMM, it is also a very serious breach of trust that will affect every member of the academic community. Web publication is governed by the same publication copyright as print publication: the only thing that you may reproduce from a web page without infringing copyright is the URL of the page.
Many people appreciate the extraordinary access that DIAMM provides to a wealth of music manuscripts that for most people would be impossibly costly to visit or to buy images for themselves. DIAMM is free, and many libraries also provide their images free. This is an extraordinary service, and one that perhaps we take for granted without realising how much it would matter to us if suddenly it was no longer available. We tend to think of access to manuscript images as our right, yet it is given to us as a courtesy by the owners of the documents.
It has taken decades to build relationships with libraries and archives and to persuade them to digitize their materials, usually at enormous cost. The cost to DIAMM alone to digitize the manuscripts we have photographed is well over a million GBP, yet we make them available to users without charge, a service that costs us a significant amount of money every year, all provided by government or private grants, or with money raised through publications. DIAMM in particular has only been able to survive and grow because of the trust that depositors place in us by allowing us to deliver images of their manuscripts. Our long record of respect for, and protection of, copyright is our great strenght, yet that is now in jeopardy. The upload of copies of our images - and those of other libraries - without permission has brought into doubt the future of DIAMM, since depositors will remove their images if we cannot ensure that users respect the rights of the document owners. In many cases it has taken years (in one case over 7 years) of careful negotiation to persuade libraries to allow us to digitize their documents and put them online. Outside DIAMM many libraries did not put their own images online, and some still do not, because they were/are concerned about rights infringement of this sort - it seems with good justification. Only recently are libraries beginning to put their manuscripts online, and this may stop if users abuse that trust.
Already two libraries have asked us to withdraw their images from online use; carefully negotiated licences with some libraries are likely to be withdrawn, and the images that are lost will not appear anywhere else on the web since the owners believe that the user community cannot be trusted not to redistribute them without permission. We are in the process of negotiating the rights to put over 25,000 new images online, and these negotiations have now stopped until this matter can be resolved: the manuscripts may not be digitized at all, and if they are they may never appear online anywhere. The actions of one individual may therefore mean that many manuscripts that would have otherwise been made available to our community will never appear in a public space.
It is deeply upsetting that the thoughtless behaviour of a single individual should have such far-reaching and damaging consequences for the global research community.
I hope you will join me in censuring the behaviour of this individual and persuading him that, far from helping researchers, he is going to hinder future manuscript access for every potential user - amateur, professional, academic - worldwide.
Replies
An image (digital or otherwise) of an object, etc. is subject to copyright. Copyright rests with the photographer, the owner of the image or the party to whom copyright has been ceded or sold. Wiki commons and public domain is not relevant to this matter.
I think you're wrong on several points: first of all, a work doesn't need to be made available for being in the public domain. All works created before the existence of copyright laws are part of the public domain. The fact they are hidden doesn't remove that quality.
That said, "Public Domain" as well as the whole intellectual law concerns only the reproduction of works, not the actual object. Which makes the comparison with your house quite out of topic since the (in)famous individual never touched any of these books and the library didn't loose any book because of that individual. Of course they lost a bit of that great sentiment of exclusivity, for having access to some things other people don't. But I wonder what it will hurt besides their ego...
Of course, he didn't respect the 3rd agreement that he would "only make use of the images on this website for private research purposes" but it has nothing to do with copyright...
On the technical side, he didn't need to "hack the server". There are plenty of image stitching softwares our there and there's even a page on Wikimedia about how to deal with these images: http://commons.wikimedia.org/wiki/Help:Zoomable_images
Some quotes from Wikimedia Commons to fuel the reflection:
"Mere physical ownership of an original artwork such as a painting does not confer ownership of the copyright"
"A faithful photographic copy of a public domain 2D artwork such as a painting may always be uploaded to Commons, even if the photograph was taken by somebody else and even if no photographer's licence has been provided"
http://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_subjec...
"Exact replicas of public domain works, like tourist souvenirs of the Venus de Milo, cannot attract any new copyright as exact replicas do not have the required originality."
http://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_subjec...
"If the museum's house rules forbid photography, a breach of that rule is an issue between the photographer and the museum, but does not affect the copyright status of an image. If the museum's house rules were a valid contract, it would bind only the parties of the contract: the photographer and the museum. The Commons and all other third parties are not subject to such a contract."
http://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_subjec...
Merci pour votre réponse.
Manuscripts as a whole are not in the public domain, nor are images published on a website 'in the public domain'. If you have to ask someone to see a manuscript, then it is not in the public domain.
[...]
If they choose to digitize documents but then make those images only available for sale to individuals, instead of allowing everyone access to them free through DIAMM, then that is their choice, and we can do nothing to change that.
Quelles sont vous sources ?
La Recommandation de la Commission Européenne du 27 octobre 2011 sur la numérisation et l'accessibilité en ligne du matériel culturel et la conservation numérique mentionne le contraire, tout comme les Conclusions du Conseil du 10 mai 2012.
I hope I have understood your question correctly and that the following answers are helpful:
Libraries and document owners are not required by any law or moral obligation to make their materials available on the web. The fact that they do so is a policy decision taken by individual institutions, and is therefore provided as a courtesy by the institution to the wider public. I understand that in Germany government funding to libraries requires that they undertake a digitization program, but this is not the case in other countries.
I agree that copyright impedes the free movement of knowledge, but on the other hand we have to appreciate how much more information is available to us than there ever was before, and the world is therefore changing in the direction of free access, but only by the choice of the owner, and we should respect their rights as well as our own. If someone enters my house and steals my belongings, should I be content because I have not hampered the free access of another individual to my possessions? No: I have a right to my privacy, and to retain ownership of the property that I have made or bought. In the same way, access to documents is not our right, it is our good fortune that the custodians of those documents are able and willing to give us access.
'Public Domain' means things that you could see without going through an institution to gain access to them. So for instance a sculpture in a park is in the public domain, even though it may be owned by an individual. So you could not prevent anyone from taking a picture of it and publishing that picture anywhere. Manuscripts as a whole are not in the public domain, nor are images published on a website 'in the public domain'. If you have to ask someone to see a manuscript, then it is not in the public domain. Web publishing is subject to copyrights, and putting something on a website does not qualify it as being in the public domain. Every website in the world is copyright unless the content owner and/or provider has specifically stated that it is not. Therefore the use of the term 'in the public domain' does not apply to manuscripts or manuscript images published through a website. This is a common misconception about websites. If a user has to hack a website's security or delivery mechanism in order to obtain the images he has used (as this user has done), there is no question that he has deliberately and knowingly taken actions to circumvent the owner's wishes for the use of those images.
You mention the Europeana Charter, but NONE of these documents was made available through Europeana, and none are governed by the Europeana Charter. Each document was delivered by the document owner or by DIAMM. Copyright exists whether or not it is made explicit (even though it usually is, and indeed is made explicit in the captioning of EVERY image in DIAMM). Anyone can read the user agreement for DIAMM by clicking on the 'Register now' links, so the agreement is public and very clear, but for your information, this is what the user agreed to when he registered to use DIAMM, and there is no doubt that he knew (as an English speaker) download or reproduce in any way the documents he accessed through DIAMM:
User Agreement
I agree
I agree
I agree
When he hacked the server, or created software that would circumvent our security, he did so knowing that he was doing something the website was not intended to do.
Our agreements with institutions allow us to deliver their images as long as we prevent downloading, and as long as all users of the website have agreed to an access licence which requires them to respect the copyright of the document owner. Institutions are under no obligation to deposit their documents with DIAMM, and do so entirely voluntarily and without charging us, which is a very significant courtesy and benefit to our users. Document owners can withdraw their images at any time, and we would have no moral nor legal recourse to prevent them from doing so. If they choose to digitize documents but then make those images only available for sale to individuals, instead of allowing everyone access to them free through DIAMM, then that is their choice, and we can do nothing to change that.
De mon humble compréhension:
Il me semble qu'il y a des différences entre le copyright (qui s'adresse aux pays de common law, Etats-Unis et Commonwealth of Nations) et le droit d'auteur (pour les pays de droit civil, toute l'Europe sauf Royaume-Uni). Or le Royaume-Uni (DIAMM) applique le copyright et doit passer outre la charte européenne qui doit s'approcher du droit d'auteur.
La différence entre les deux est d'ordres économique et moral. Du copyright découle le principe de la fixation matérielle de l'œuvre; à partir du moment où l'œuvre a été fixée, elle est sous copyright et cette fixation fait office de preuve devant la justice si besoin.
Pour ma part je trouve tout cela ridicule et l'appropriation des œuvres ne peut avoir que des conséquences néfastes sur la libre circulation du savoir. Lire Proudhon, Les majorats littéraires [Literary Majorats].
I hope you will join me in censuring the behaviour of this individual and persuading him that, far from helping researchers, he is going to hinder future manuscript access for every potential user - amateur, professional, academic - worldwide.
Je vous remercie très sincèrement pour le travail formidable effectué par DIAMM, et vous fait part du respect que j'ai pour votre entreprise. Je serai ravi de vous aider dans sa préservation dès lors que vous me fournirez des précisions sur le cadre légal.
We tend to think of access to manuscript images as our right, yet it is given to us as a courtesy by the owners of the documents.
Pourriez-vous expliquer plus en détail ce point de vue ?
Il me semble au contraire que les directives européennes prévoient que "le contenu de l’accord entre une institution culturelle publique et son partenaire privé doit nécessairement être rendu public", et que "les œuvres du domaine public ayant fait l’objet d’une numérisation dans le cadre de ce partenariat doivent être accessibles gratuitement dans tous les États membres de l’UE".
Par ailleurs, la charte Europeana précise :
- "Ce qui fait partie du domaine public doit rester dans le domaine public. Le contrôle exclusif des oeuvres du domaine public ne peut pas être rétabli en réclamant des droits exclusifs sur les reproductions techniques des oeuvres ou en utilisant des mesures techniques ou contractuelles pour limiter l’accès aux reproductions techniques de ces oeuvres. Les oeuvres qui font partie du domaine public sous leur forme analogique continuent de faire partie du domaine public une fois qu’elles ont été numérisées."
- "L’utilisateur légitime d’une copie numérique d’une oeuvre du domaine public doit être libre de (ré-)utiliser, de copier et de modifier l’oeuvre. L’appartenance d’une oeuvre au domaine public garantit le droit de réutiliser, de modifier et de réaliser des reproductions et cette appartenance ne doit pas être limitée par des mesures techniques et/ou contractuelles. Lorsqu’une oeuvre est entrée dans le domaine public, il n’existe plus de base légale pour imposer des restrictions concernant l’utilisation de cette oeuvre."
Les conséquences désastreuses que vous décrivez sont fondamentalement en opposition avec les projets nationaux et européens de numérisation et de diffusion de la culture : j'avoue donc, en toute honnêteté, avoir du mal à cerner votre problème.
Pouvez-vous nous éclairer sur la nature exacte de vos accords avec les différentes institutions culturelles ?
I'm sure that all members of this group will join with Julia in condemning the individual responsible for this unethical and plainly illicit conduct. I am most disappointed that this individual's actions threaten to jeopardise our access as lovers and students of medieval music to the astoundingly high-quality images of DIAMM and an other magnificent digital repositories. One has read of disconcerting proposals to place other collections, like Gallica, behind a firewall, and this sort of behaviour only fuels such proposals that ultimately will result in the de-democratisation of knowledge that the digital age now offers all.
JS
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