As part of our Open Culture Program, we at Creative Commons (CC) are exploring avenues to build momentum towards a UNESCO Recommendation on Open Culture. On 11 May, 2023, we hosted our first in-person Open Culture event, in Lisbon, Portugal. In this blog post, we look back at the day’s highlights and map out next steps.

Background

Over the past decade, the open movement has made incredible strides in the cultural sector — take a look at some of the pioneers — yet it is still facing major barriers and challenges. But challenges are opportunities in disguise. In September last year, UNESCO declared culture a global public good at Mondiacult 2022. With the successes of the 2019 UNESCO Recommendation on Open Educational Resources and 2021 Recommendation on Open Science, the world looks to UNESCO’s leadership to create the necessary international framework that would unlock the possibilities of equitable, ethical, and respectful sharing of cultural heritage in the digital age: a UNESCO Recommendation on Open Culture. For an explanation of useful terms related to open culture, take a look at the glossary developed by the CC open culture platform.

Meeting highlights

Recognizing that such an international instrument requires deliberative, inclusive community consultations, the in-person event focused on the foundational work of gathering community input. Structured around a co-created agenda and under the able guidance of Abdul Dube and Mona Ebdrup, facilitators at Visual Confidence, just under 40 experts gathered to exchange views and open initial discussions on the need to realize open culture as a global public good. 

Participants came from far and wide across the open movement and beyond, spanning the fields of law, library science, policy, design, anthropology, history, museum curation, international organizations, and many others. Attending from CC’s team were Brigitte Vézina, Director of Policy and Open Culture; Connor Benedict, Open Culture Coordinator; Jennryn Wetzler, Director of Learning and Training; and Jocelyn Miyara, Open Culture Manager. 

During convivial, engaged, polyphonous and cross-pollinating conversations, we exchanged our diverse perspectives; explored potential common grounds on backgrounds and contexts, core issues, and key principles; built a common understanding of what we collectively want to achieve; and elaborated a skeleton of a shared vision for “open culture.” Issues discussed included the role of copyright over access to cultural heritage, the impact of artificial intelligence, the “platformization” of culture, a sense of a generational shift in the open movement, the need to account for ethical sharing, the economics of open culture, open beyond “GLAMs” (galleries, libraries, archives and museums), the need for diversity and inclusivity in global and local contexts (including traditional knowledge and Indigenous rights), a vision for open culture in 100 years, and a lot more!

Take a look at the meeting’s graphic record, offering a visual summary of the diverse perspectives that felt most resonant within our breakout groups and that surfaced in plenary debriefs.

Participants appreciated the opportunity to meet peers and build new relationships, and got a sense of the possibilities of going down a common path together. While in-person meetings such as this cannot include all of the perspectives needed, participants noted the value of in-person discussions to probe various approaches to open culture deeply. We aim to offer additional avenues to include more perspectives in follow-up activities.

Here’s what some of the participants shared about their experience: 

“The CC Open Culture Roundtable was an opportunity to meet and engage with open culture experts and advocates around the world and see how, despite the many contextual differences, there are meaningful ways for us to collaborate and shape nuanced, context-mindful perspectives for projects and policies aiming at a shared and open culture.”

— Mariana Valente, Assistant Professor in law, University of St. Gallen, Switzerland and Associate Director, InternetLab (Brazil).

 

“It was a great opportunity to hold first discussions about the initiative, and it allowed me to reflect on possible options further.” 

— Gašper Hrastelj, Secretary General, Slovenian National Commission for UNESCO

 

“The CC Open Culture Roundtable was a perfect opportunity to meet in person to discuss Open Culture, and it allowed me to enlarge my view and learn other perspectives.”

— Deborah de Angelis, Chapter Lead, Creative Commons Italy

 

“The CC Open Culture Roundtable was a great opportunity to meet people from diverse organizations and parts of the world, and it allowed me to see different perspectives on IP and ‘openness’ as a concept and movement.”

— Matt Voigts, Copyright and Open Access Policy Officer, IFLA

 

“It was an excellent opportunity to bring different open culture stakeholders together and reignite and expand important discussions among them. And it allowed me to reflect on the possibilities in my reach to contribute more effectively to the progress of open culture, both locally and globally.”

— Fátima São Simão, Chapter Lead, Creative Commons Portugal

 

“It was an inspiring opportunity to share ideas of the open culture and notice that there are a lot of people trying to solve similar questions from different angles, and it allowed me to meet many new and interesting people and to enjoy working together.”

— Johanna Lilja, Director of Services, National Library of Finland, and IFLA Cultural Heritage Advisory Board

 

“For me, it was an opportunity to do a historical reflection exercise where we were able to look at how we have grown as a movement. And it allowed me to collaborate in the construction of a more or less common concept or idea of what is understood in different corners of the world as “open culture”. It also allowed me to connect with people who are doing amazing projects.”

— Ivan Martinez, Coordinator, Creative Commons Mexico

 

“The CC Open Culture Roundtable was a first step on a exploratory journey on how GLAMs could be better supported through open approaches to public domain material. It allowed me to understand the diversity of stakeholders’ perspectives on the issue.”

— Lutz Möller, Deputy Secretary-General, German National Commission for UNESCO

 

“The CC Open Culture Roundtable was a pitstop for ongoing discussions around the importance of open culture, and it allowed me to reconnect to the wider international community.”

— Maarten Zeinstra, Owner, IP Squared and Member, Creative Commons Netherlands

 

“It was firstly a chance to meet people who are actively involved in the movement, particularly from different contexts, it allowed me to better see somewhat paradoxically the boundaries of open culture, and have the space to start to think about what openness means for knowledges outside of the legal frameworks of IP.”

— Abira Hussein, Advisor, Whose (Digital) Archives? and Lab Partner, GLAM-E Lab

 

“The CC Open Culture Roundtable was a warm gathering of fellow travelers and it allowed us to imagine new ways to act together.”

— Fiona Romeo, Senior Manager, Culture and Heritage, Wikimedia Foundation 

Next steps

We are excited to take the outcomes of our Lisbon event forward. We are already planning to continue the conversation at the CC Summit in Mexico in October, and hopefully at GLAM Wiki 2023 in Montevideo, Uruguay in November this year. We will also organize multiple virtual opportunities to contribute as we engage more community members in our work on open culture.

Interested in knowing more about CC’s work in the field of open culture? Join our open culture platform or write to us at info@creativecommons.org. 

The post A look at CC’s Open Culture Roundtable in Lisbon appeared first on Creative Commons.

The United States Supreme Court released its opinion today in Andy Warhol Foundation v. Goldsmith. While it’s hard to predict the full ramifications of this decision at this point, our initial opinion is that this decision is not ideal, but also not the death knell for transformative fair use that many feared it could have been. We address three points below.

What use is fair?

First, the Court’s focus on Warhol’s specific “use” of Lynn Goldsmith’s photograph of Prince provides clarification on what the word “use” means as part of the fair use analysis, and narrows the scope of the opinion in ways that will allow for many future fair uses.

Fair use analysis in the United States depends on a four-factor test, where courts must consider all four factors and decide how to balance each one. The Goldsmith case focuses entirely on factor 1: the “purpose and character of the use.” (In particular, it was argued that Warhol’s Orange Prince was a “transformative” use: where the original work served one function, but has a different purpose and character because it has been “transformed” by changing the context of the use.) The copyright statute does not specify what “use” means in this context, and indeed there are many different ways to interpret it. For example, in this case, “use” could mean:

• Andy Warhol’s use of Lynn Goldsmith’s photograph of Prince Rogers Nelson to create a series of silk screen prints called The Prince Series;
• Warhol’s use of the photograph to create Orange Prince without it ever appearing on a magazine cover;
• The use of Orange Prince as a portrait of Prince for a magazine cover/profile piece.

Here, the Court narrowly focuses on this third meaning: The commercial “use” of Orange Prince as a published magazine portrait of Prince. The Court found the “purpose” of these two images of Prince to be identical: Both featured in magazines as portraits of the same musician. This narrow similarity will enable later would-be transformative users to distinguish their use from the original in a way that makes it different from the fact pattern in this case, suggesting that the fair use analysis of this factor would be different. That is, if a use does not serve the exact same function as the original, then this decision leaves the door open to argue that it has a different “purpose” from the original. The decision’s distinctions between these different kinds of uses suggest that a case over this very same work used for another purpose might have had a different outcome.

Additionally, the Court’s particular focus on the commerciality of this use is not ideal. While commercial purpose is part of the analysis of this factor, it is common for commercial uses to still be fair uses. As the Court itself notes, Campbell v. Acuff-Rose (perhaps the most famous fair use case) found an explicitly commercial use to be fair, and was clear about commercial use not barring a finding of fair use. We hope that this case is not read to walk back those statements, harming users who want to make transformative commercial uses of a work.

Derivative v. transformative

Second, the Court’s attempt to draw a line between a derivative work and a fair use does not provide much clarity to guide future uses.

Much of the confusion over distinguishing a derivative work and a fair use involves what it means to “transform” a work, and the degree of that transformation. Under U.S. law, one of the rights that authors have over their works is the right to create or authorize the creation of “derivative works.” As defined by statute, a derivative work is “a work based upon one or more preexisting works” that is “recast, transformed or adapted.” (emphasis added). At the same time, however, since Campbell, one of the most important parts of the fair use analysis has been whether a secondary work is “transformative.” Because of this, there is a tension between what is a transformation in the context of a derivative work and what is a transformative fair use. (This is often one of the most difficult points for users of CC-licensed works to navigate, as well, especially where the license is one that places conditions upon derivative works.)

Unfortunately, the Court does not successfully relieve this tension. While we agree with the Court that “overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works” and that “the degree of transformation required to make ‘transformative’ use of an original must go beyond that required to qualify as a derivative,” the decision does not provide clear guidance on what this actually means.

Fair use: An engine of creativity

Third, as Justice Kagan writes in a dissent joined by Chief Justice Roberts, the majority seems to undervalue the importance of transformation in the fair use inquiry, and indeed, may undervalue fair use more broadly. Justice Kagan writes: “Why do we have ‘fair use’ anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their ‘public availability.’ … But that description sells fair use far short. Beyond promoting ‘availability,’ fair use itself advances creativity and artistic progress.” Moreover, “when a transformation of the original work has occurred, the user of the work has made the kind of creative contribution that copyright law has as its object.” By failing to focus on how Warhol’s piece transformed the original photograph and added a new meaning and message to the original, the Court’s opinion may influence future decisions to also undervalue this point and undermine the purpose of fair use itself.

Ultimately, this decision is disappointing to champions of fair use, but does not appear to change much about judgments on fair use from what we’ve seen before. Transformative fair use has always been difficult to rely on, with the possibility of a court’s judgment differing from the artist’s as to when a fair use was made. It is promising to note how much of what we believe to be fair use the Court also holds up as examples to distinguish — Warhol’s own soup cans, for example, which don’t occupy the same place in the market as the product on supermarket shelves. Moreover, the Court’s narrow focus on a single, very specific, use — the commercial use of one portrait to serve as another portrait — continues to leave a lot of room for more easily distinguished transformative uses like remixes and other forms of appropriation art.

CC continues to believe that fair use is essential to creativity and culture. Justice Kagan’s dissent aligns well with CC’s views on transformation and creativity; in particular, that “artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others.” All art incorporates and transforms what came before it, and depends on the ability to reuse and reinterpret previous works, and the exclusivity of copyright should block that only as far as necessary to support an environment where artists can continue to create. This was a case with a particularly challenging set of facts, where there was a great deal of similarity to consider in the fair use analysis, and we believe that even after this decision, fair use continues to be alive and well in the United States, and that the Court’s narrow decision changes little about that.

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It’s International Museum Day today, and at Creative Commons (CC), we are thrilled to celebrate museums under this year’s theme of Museums, Sustainability and Well-being. 

Museums play an important role in sustainable development — they are in fact instrumental in achieving the United Nations’ Sustainable Development Goals (SDGs) — and in supporting the well-being of the communities that they serve. As ICOM states, “museums are an important means of cultural exchange, enrichment of cultures, and development of mutual understanding, cooperation and peace among peoples.”

At CC, we believe in the transformational power of better sharing through open access to knowledge and culture to achieve sustainability and support well-being. By making the collections that they hold as openly accessible as possible for use and reuse, museums can contribute to fostering global collaboration to solve the world’s most pressing problems and enable people to lead richer, more meaningful lives. 

As just one example of the power of open sharing, last year, the UK’s Natural History Museum shared that over 125,000 of the Museum’s digitized Butterfly collection — released to the public domain using the CC public domain dedication tool (CC0) — were analyzed by scientists to understand how animals may respond to climate change. The Museum stated: “…open access digitized collections … allows scientists from all over the globe to be able to more easily use collections, can accelerate research in a more collaborative way than ever before.” This example is emblematic of the immense benefit for society of making information held in museums as openly accessible as possible to the public. It really embodies the mission of museums: preserving heritage, of course, but also enabling members of the public to access and use that heritage in furtherance of the public good. 

Openness is key to achieving global goals, like fighting climate change, because it helps us to collaborate in the face of common challenges. Museums hold the keys to unlocking fresh solutions through global collaboration, and with collaboration comes increased pace, efficiency and efficacy of research, so that more communities have the opportunity to build upon research. 

Museums also serve as peaceful spaces to come together, reduce social isolation, gain better understanding of each other, and improve people’s mental health. Both on site and online, museums can support the well-being of communities around them by providing a public space for cultural exchange and discourse. When it comes to sharing potentially sensitive materials, museums must also account for important ethical considerations. The CC Open Culture Platform working group on the “Ethics of Open Sharing” has identified some of the thorny ethical considerations regarding the opening up of cultural heritage. The working group developed a gamified approach to dealing with some of these to ensure well-informed and balanced decisions. 

Museums educate, entertain, inspire, and bring joy to visitors — they are close to levers that can spark wide-ranging, positive change. By “opening up”, by better sharing their collections with the public, disseminating information, and working together to serve as public forums to hold society-wide debates, museums can empower people, generation after generation, in offering them the resources to engage and participate in civic life, increase the speed of innovation and scientific discovery, and strengthen community bonds for a sustainable future. 

 

Want to get involved? Join us!

• Become a member of the CC Global Network
• Become a member of the CC Open Culture Platform
• Sign up for our Open Culture Matters newsletter 
• Join the #cc-openglam Slack channel
• Participate in CC Open Culture Platform calls — they are announced in the Slack channel and on the mailing list

The post CC Celebrates International Museum Day 2023 — Museums, Sustainability and Well-being appeared first on Creative Commons.

Earlier this year, the European Commission started a new consultation on “The future of the electronic communications sector and its infrastructure.” On the one hand, it’s good that policymakers are examining how to expand broadband access and ensure the capacity of networks continues to expand and support helpful innovation. On the other hand, the consultation is anchored on one particular, problematic policy idea — a new legal right for telecom companies to require bonus payments from content and application providers, imposing new tolls for sending and “generating” traffic. Content and application providers would not just pay for their connection to the Internet (as they already do today), but then have to pay again in order to reach a consumer when the consumer requests data from them.

This sort of approach has long been advanced by incumbent telecom companies, opposed by virtually every other relevant constituency, and rejected repeatedly around the world. It would undermine open Internet access — sometimes called “net neutrality” — and replace today’s well-functioning system of payments with a regulated morass, where consumers will ultimately pay the price. Content and application providers (in particular smaller players) will either be impeded from delivering their traffic at all due to costs, or will pass the costs on to consumers themselves.

CC was pleased to join with the International Federation of Library Associations and Institutions and Europeana Foundation in a submission opposing this misguided approach (read the full submission). We highlight the particular the impacts on knowledge and cultural heritage institutions:

“For the institutions and communities we support, these new tolls pose particular concerns. Knowledge and cultural institutions act as repositories for large amounts of data — we are responsible for collecting, storing, and making available all sorts of media and information to Europeans, often under public mandates. While an individual user may not make use of the entire catalog of information, collectively serving our communities can mean serving large amounts of data. Moreover, knowledge and cultural institutions serve academics and researchers who do require access to large amounts of the corpus for their public-interest activities.

We fear that, under this proposal, such institutions could be considered “large traffic generators” and forced to pay new fees. As public serving institutions, they already face significant budget strains, and new fees would inevitably mean limiting the services we provide, and using our resources to bolster the turnover of telecom operators rather than to deliver on our missions.

Yet it is important to note here that a simple carve-out for such institutions would not be sufficient. For one thing, the fees would still frustrate knowledge and cultural production and dissemination in ways that would run counter to the goal of encouraging artistic and expressive freedom, as well as having knock-on effects on us. What’s more, knowledge and cultural institutions may rely on commercial services to host and serve our traffic, and thus to the extent those providers would face new fees and pass those costs on, we would still be impacted.”

As we note in our submission, there are a wide variety of other ways to support open, robust, affordable internet access, including expanding access to spectrum for wireless services and community networks, modernization of universal service funding, and collaborating with knowledge and cultural institutions, which in some cases already work to provide Internet access to surrounding residents. We hope these and other ideas will become the focus as this consultation moves forward.

The post Knowledge & Cultural Institutions Defend Net Neutrality in EU appeared first on Creative Commons.

 

“If you’re considering opening up, start small” says Michal Čudrnák, the Head of Digital Collections at the Slovak National Gallery. When you open up just a small part first you will see what unfolds and can learn in the process what works for your community and what they interested in and how your community wants to use the cultural heritage in your collection. This episode dives into issues of legislation as well as the unique ways public domain material is re-used.

Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Michal works in the Slovak National Gallery on all the digital projects including the catalog of public domain works and other collections in Slovakia, and the main project “web-of-art” which comprises the entire collection.

Michal responds to the following questions:

1. What are the main benefits of open GLAM?
2. What are the barriers?
3. Could you share something someone else told you that opened up your eyes and mind about open GLAM?
4. Do you have a personal message to those hesitating to open up collections?

Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.

Want to hear more insights from Open Culture experts from around the world? Watch more episodes of Open Culture VOICES here >>

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