28 February 2010

Whose Legacy? Whose Ownership? Problems with CC Attribution and Non-Commercial

Creative Commons interviewed Shelley Bernstein, the Brooklyn Museum’s Chief of Technology, earlier this month. In keeping with the Brooklyn Museum's innovative approach to on-line access, they are creating an API for people to access all of their digital content via the CC Attribution/Non-Commercial license. Last year, Sydney's Powerhouse Museum did something similar when it put most of its digital images up on Flickr using the CC Attribution/Non-Commercial license. Our museum (the Museum of Archaeology and Anthropology at the University of Cambridge) has had all of its collections on-line since 1996, and these searchable records have been accessible under the CC Attribution/Non-Commercial license since 2009.

What we see here is the slow, but increasing, willingness of museums to recognize that not only are they but stewards of the collections they hold, but also that how their collections are used, and what is said about them, is not limited to their galleries and documentation systems. More radically, at least for a few museums, is the acceptance that their digital resources, like their collections, have lives and uses beyond their walls. We are constantly being told these days, at least in Europe, that each of our objects tell a story. However, what these museums have accepted is that each of their objects, digital or not, tell many stories, for many different communities and in settings far from the museum.

A few weeks ago I posted an audacious blog where I questioned the continuing existence of closed, regimented and policed Collection Management Systems in Museums. I got some constructive feedback, and some support. However, the outrage I felt at the continued existence of these dinosaurs did not seem to be shared by many of my colleagues in museums. The point of that blog was that these CMSs are not just an afront to contemporary use, but they are antithetical to the kind of sharing we see at the Brooklyn, Powerhouse and MAA.

However, though I clearly support this program of sharing, and have done vocally for decades, I do have a few problems with sharing resources with the CC licenses. In particular, I have problems with both the terms of Attribution and Non-Commercial.

My problems are not what you might think, at least not if you assume the usual response of a museum professional. That is that they might be concerned about how to police Attribution and Non-Commercial use, or that they are not happy about allowing derivative works. In fact, I have no problems with any of this and I am more than happy to allow derivative works, as I think this is the whole point of our resources anyway. What does worry me is that there are assumptions about Attribution and Non-commercial that do not fit well with the sharing of our resources in all contexts.

Of course the good people at CC have given all this a great deal of thought and these conditions are designed to ensure the rights of the copyright holder. They are also designed to be kept as simple as possible and to allow for shared use. But what happens when the ownership of a resource, or what it refers to, is more complicated? What happens when, occasionally, there is a very good reason for commercial use, but not others? What do we do then? Now in the area I work in, archaeology collections and their use by expert communities, these situations arise almost all the time.

Let's take two simple examples.

First, I have recently been imaging a collection of artefacts from a site in New Mexico. The images are reference images of my museum and we hold the copyright. These collections also have catalogue entries that are also written by the museum and, therefore, under its copyright. However, these records and images are being shared with the Native American community whose site these objects are from. More importantly, the objects were collected at the beginning of the 20th century under conditions that would not be acceptable today. Further, these collections are from an historic site that was occupied during the Pueblo Uprising (also known as the Pueblo Revolt) of 1680 which gives these objects a very complicated, and contested, colonial heritage. So, although the museum technically "owns" the copyright of these resources, the ownership of the collections, and the histories and descriptions around them, are much more complicated. Why should these people, whose patrimony is represented, "attribute"ownership of some images and descriptions of their cultural heritage to this or that museum?

You could say, in this instance, that we could just leave Attribution off our license, but that wouldn't do either. The problem is that Attribution within derivative works for this community would not be wanted, but it would for most others. Neither we, nor the community, want other people using this information without due recognition. The community too want to protect their cultural heritage from misuse and abuse.

The second setting also involves such source communities, or those whose patrimony constitutes the resources being shared. In this case, we have a conflict with the Non-Commercial license. Let's say that some contemporary artists from the community mentioned above use some images of the collection to develop forms of jewelry, pottery or basketry that is not now made in the community. They then go on to sell these objects because that is how artists make a living. Let's take another example. Some company takes the images we are offering on-line and develops a range of jewelry or pottery, made somewhere in southeast Asia, that is marketed in Europe as "native". Now both of these instances would be contrary to the license. In fact, the second would be illegal in the United States even without the license, but not in Europe. However, clearly these two commercial uses are completely different. In the first, artists are reusing their own cultural patrimony, designs or techniques that were developed by their own forefathers, or foremothers. We wish, in fact need, to guard against the latter, but would want to enable and endorse the former.

This is my problem with the CC licenses. For most "typical" uses, they are fine, but they do not recognize the problems when ownership is distributed, in many complex ways, across multiple stakeholders. These forms of ownership and use are common to shared resources within museums, especially archaeology and anthropology museums, but all existing licenses fail to recognize these forms of ownership and use. As well as speaking with the good people at the Brooklyn Museum, I would like to ask CC to also begin talking to those of use who work with diverse and complicated patrimony. Much needs to be done here before museums, and communities, can guard their patrimony from misuse and appropriation.


  1. After writing this post, I found this excellent post by Preston Hardison in OnTheCommons from 2006: http://onthecommons.org/content.php?id=962

  2. I'd say CC would actually agree with you - their licences are intended for "typical" uses, not for uses with more complex/nuanced requirements. For the cases you point out probably the only solution is a custom licence - it would be impossible to ever create a standardised licence system that covers such specific cases.

    CC has never claimed that their licences are appropriate for all situations - they just aim to create helpful tools where they can.

  3. Damph, thank you for your comment. I wasn't really casting aspersions at CC, I am a big fan in fact, but more to the general copyright situation in general. Copyright in general recognizes a copyright holder. However, there are many knowledge systems where intellectual property is held in common or amongst a group of people. There are others where ownership is passed on from generation to generation, through specialists. Our current copyright does not, and cannot, accommodate these situations.

    However, my real target here are museums and cultural institutions that continue to pass on their responsibilities to their stakeholders by claiming compliance through CC licensing. I suppose that is my real gripe here.