Editorials: VolXXI, No.1


 Birmingham Museums Trust 

An appeal for financial support and the trouble with Arts Council England 

On page 16 readers will see a magnficent reproduction of an out-of-copyright work of art, Morgan-le-Fay by Frederick Sandys (1829–1904). It is provided by Birmingham Museums Trust in hi-resolution free of charge, because, like all other images of out-of-copyright works of art, it is in the public doman. This excellent trust has made all such images freely available for download from its website, without registration, and that is how it should be. Its initiative ought to shame the National Gallery, the Tate, the National Portrait Gallery, the British Museum and the Royal Collections Trust into doing likewise. Those institutions, however, are still peppering their online collections with assertions of copyright, and plastering their reproductions and credit lines with copyright symbols. By what right?

Birmingham Museums Trust now needs our financial help and we hope that it will be freely given, just as they freely support us devotees of British art who read this journal. The Trust has suffered badly from the restrictions imposed by Covid-19. Some 60% of its income is generated by visitors and its application for money from the Arts Council England Emergency Response Fund was turned down.

The chair of Arts Council England is Sir Nicholas Serota, who has probably done more to distort the understanding of art in this country than anyone else. His career has been characterised by a doctrinaire insistence on the primacy of contemporary art, the problem being that, under his directorship, the Tate publicly defined contemporary art as art that is ‘of an innovative or avant- garde nature’ (Tate Guide to Modern Art Terms). Birmingham’s museums and galleries are, of course, very largely filled with the art of the past, and are especially rich in British pictures, with perhaps the finest group of Pre-Raphaelite masterpieces in one place.

And so, while ignoring the obvious importance of Birmingham’s collections, what has Serota spent all that emergency money on instead? Here is just a selection, and remember that the word ‘contemporary’ in this context means what Serota intends it to mean.

Art Monthly, a journal devoted exclusively to contemporary art, £42, 270

Auto Italia commissions exclusively contemporary art from ‘emerging artists’ – £35,159

Institute of Contemporary Arts. The name says it all, although it no longer has much time for any kind of art, but plenty for political activism. It received £289,368. That would have helped in Birmingham, but of course the ICA is in London, which was handed a third of all the money available, 38.7%, while the whole of the Midlands got just 17.1%.

South London Gallery. This was once a gallery with an interesting collection of old pictures donated by artists such as Lord Leighton in the 1890s. That was all dispersed when, in effect, the gallery was hi-jacked, and now it offers only contemporary art. £150,000

Studio Voltaire says it ‘focuses on contemporary art’ and so that triggered a dole of no less than £240,867.

Naturally, the Whitechapel Gallery, where Serota first learned to manipulate everything in the direction of his kind of contemporary art, landed £150,000.

An: Artists Information Company sounds a good thing at first, since it claims to represent some 25,000 artists, until you read on and find that ‘its mission is to stimulate and support contemporary visual arts practice’. £90,178.

Project Space Leeds. By now it will come as no suprise that this beneficiary of £212,241 is ‘an independent, artist-led contemporary art space’.

All these beneficiaries are part of what the Arts Council calls its National Portfolio: a host of organisations selected to be funded by the Arts Council and devoted, in large part, to everything contemporary, although there are some anomalies in there in the form of such distinguished institutions as the Wigmore Hall.

The list of grants to those individuals and organisations that are not part of the National Portfolio makes, if anything, even more depressing reading, as the activities of the lucky winners in so many cases are misguided, trivial and foolish.

It is most unfortunate, then, to put it no more strongly, that a lot of the finance offered by the government on 6 July, some

£1.57bn, to mitigate the crisis of funding in the arts caused by Covid-19, will be handed to such a blinkered organisation as Arts Council England to administer. The government announcement contains these ominous words:

Decisions on awards will be made working alongside expert independent figures from the sector including the Arts Council England and other specialist bodies such as Historic England, National Lottery Heritage Fund and the British Film Institute.

It is ‘Arts Council England’ that is the worrying bit, since that has evidently been identified by the government as the body to advise on the visual arts. The terms under which the government has made this offer are vague, but Arts Council England will be only too happy to define them on its behalf, and we know what that means.

It is clear that the government intends some £100m of the money to go to ‘national cultural institutions and English Heritage’. It is also clear, if Arts Council England has anything to do with it, that the Birmingham Museums Trust, along with other institutions that share its enlightened mission to engage today’s visitors with the art of the past, will be lucky to see any of it.

 

Here is where you can find details to donate:

https://www.birminghammuseums.org.uk/support-us

 

To inspire you, on the following page we offer a selection of some of Birmingham’s pictures, a number of which have been discussed in The British Art Journal in the past

Editorials: VolXX, No.1


 European Union Directive on Copyright 

Article 14 (‘Works of visual art in the public domain’) of the European Union Directive ‘on copyright and related rights in the Digital Single Market’ (Chapter 4) issued on 15 April 2019 states: ‘Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.’

We have long argued in these pages that there can be no copyright in reproductions of works of art that are themselves out of copyright. Such things are ‘in the public domain’. The UK government voted for the EU Directive on Copyright, and indeed Article 14 is very much in line with the way in which the interpretation of the law on copyright in the UK has been tending. Member states have two two years to incorporate the ruling into local law but whether the UK leaves the  EU or stays will not, we think, make any difference.

We have drawn attention in the past to the pointlessly restrictive attitude of the Tate, and to the fact that it appears, alas, to have persuaded the British Museum, National Portrait Gallery and National Gallery to imitate it to an unfortunate degree (although they offer some concessions for academic publication). How very welcome and timely, in contrast with these institutions, is the launch by Birmingham Museums Trust of a superb open-access website dedicated to offering  the unlimited use of digital images of out-of-copyright works of art in its care, which it states are in the public domain: https://www.birminghammuseums.org.uk/collection (go to Digital Image Resource). On page 79 we reproduce just one of the Trust’s tens of thousands of magnificent images and look forward to reproducing many more.

The Tate, in contrast, produces torrents of verbiage in attempts to restrict the use of such images. Indeed, the Tate is still asserting copyright in copyright-expired works of art, while implying ‘related rights’ that are also expressly excluded by the Directive above, as this section of its ‘terms and copyright’ shows:

Reproducing content from the Tate website

Website content that is Tate copyright may be reproduced for the non-commercial purposes of research, private study, criticism and review, or for limited circulation within an educational establishment (such as a school, college or university).

The following uses of Tate copyright content are also permitted, except where other terms apply:

Reproducing Tate copyright content, and Tate owned copyright expired artworks, for non-commercial research, private study, criticism and review, or for the purposes of teaching and instruction within an educational establishment. Where any artworks are published, the source of the content must be identified and the copyright status of the content acknowledged, e.g. ‘Title, Artist,  Date of Work, Photo: © Tate, London [current year]’.

The Directive means it would be wrong, in the case of ‘Tate owned copyright expired artworks’, to ‘acknowledge’, as the Tate insists, its assertion of ‘copyright status’ and to attach ‘Photo: © Tate’ to a published image, since an ‘act of reproduction’ of a copyright-expired work of art ‘is not subject to copyright or related rights’. An accurate photographic reproduction of a work of art cannot, of its very nature, count as ‘the author’s own intellectual creation’.

The Tate complicates things further with the simply staggering command that viewers of its website must stop looking  at it if they don’t agree to all the terms and conditions – which can only be viewed, of course, on the website. Supposing you do not agree to the terms and conditions (if indeed you do look at them), it is already too late, because you have already accessed the website that you ‘must not’ access. We are in Wonderland.

By using our website, you accept that you will be bound to the terms and conditions of use in full. If you do not agree to any of these terms and conditions, you must not access, use and/or contribute to our website.’ [!]

… Tate may change these terms from time to time so we recommend that you should check them regularly…Your continued use of tate.org.uk will be deemed acceptance of the updated or amended terms. If you do not agree to the changes, you should cease using this website. [!]

Well, either a website is public or it is not. Of course, you can issue commands and say whatever you like on your own public website, but anyone looking at it is free to ignore what you say, unless restrictions are in place as is the case with, for example, some newspapers, where registration and often a subscription are needed to access full content. Alas, that is where the Tate has gone. The reduction in the resolution of the images on the Tate website, and absence of any zoom facility, is a scandal. But you can see things more clearly on the Tate website – if you register. In this, it is unfortunately matched by the National Gallery, which used to have the most wonderful zoom system. To its shame, it has followed the Tate in imposing restrictive terms and conditions for close study of a painting. This is in perverse defiance of the trend in the rest of the digital world, which is to make works of art more visible and easier to study than ever before. You can examine works of art in detail in the gallery: why not on the website? To get the flavour of the Tate website, try this:

You may not copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use tate.org.uk content in any way except for your own personal, non-commercial use. In certain prescribed circumstances, you may adapt, alter or create a derivative work from any tate.org.uk content for your own personal, non- commercial use, with the prior written permission of Tate which will be indicated against the relevant tate.org.uk content.

What a deplorable waste of time and money on the part of an institution that has evidently lost sight of its purpose.

The truth is that it really does not matter whether the Tate believes its assertions about owning copyright in its images of works out of copyright. The point at issue is what the Tate intends to do with its digital images. If it believes its own assertion that its mission is to promote the knowledge and enjoyment of the works of art that it cares for, then it should publicly acknowledge that images of its copyright-expired works are free for use. It should also desist from attempting  to create, in the absence of copyright, other ‘related rights’ through supposed implied contracts or other means.

Editorials: VolXII, No.3


 Copyright again, only much, much worse

Submissions ought now urgently to be made by readers of this journal in response to the British government’s attempts to get to grips with what are called ‘orphan works’. Photographic records of works of art themselves out of copyright have been dragged into legislation that was initially prompted by the need to straighten out rights in film and video. The implication of the proposals is that photographic still reproductions of works of art are themselves works of art and therefore subject to copyright under EU rules (70 years after the death of the creator). The problem is, once this extraordinary step has been taken (statute law in England presently demands an element of creativity in a work of art, which case law partly supports, partly confuses), that there are countless such photographic records, often in the possession of agencies, the originators of which are not known or whose estate cannot be traced, records that are to be treated as if they were genuinely ‘orphan works’ in the copyright sense. Agencies that wish to charge fees for the use of reproductions, which includes a most unfortunate number of public museums, have a vested interest in promoting this unexamined notion.

The government needs to pay attention to the threat that this implication in the legislation poses to art- historical publications, books as well as journals, which will be an economic disaster in addition to the dire consequences to the dissemination of knowledge.

As art historians know well, many of the reproductive images in the agencies’ hands are now supplied in digital form, created from existing reproductions. There is an implication, although the question is not addressed in the proposals, that copyright must henceforth subsist in these digital reproductions, which are of course reproductions of reproductions (although with a nod to the continuation of the ‘original’ ‘copyright’), created in a purely automated process. There is little or no attention paid to the whole question of digital reproduction in the proposals, which fail even to address the question of the use of scanners. Yet scanning is a method employed not only by reproduction agencies but also by owners of original works of art to create digital images. The pressing of a button, it would seem, is now to be deemed sufficient to create copyright in the image thus produced. The whole idea of copyright is being effectively degraded, which surely cannot have been the government’s intention.

The proposals envisage, as a means of solving a conundrum that ought never to have been posed (reproductive images considered as ‘orphan works’), that a fee will be collected on behalf of any possible claimant to such rights. Moreover the fee will be fixed at ‘market value’, a phrase that will fill art historians with dread. It is implied in the consultation document that the government will not set up its own agency to collect these fees, but will pass the duty to the existing agencies. This can be understood as promoting the poacher to the gamekeeper’s position – if not as a licence to print money. How, do we suppose, the agencies will even begin to fulfil their accompanying duty diligently to seek out the owners of ‘orphan works’? How are they equipped to carry this out? Common sense suggests that any search is likely to be passive or cursory. Nor is there much incentive. Agencies already issue disclaimers along with their ‘licensing’ activities, which often indicate that they have no clue as to who made a particular photographic image – for the use of which they are none the less charging a fee. A fair test of how these things go at the moment may be the activity or lack of it of by the body funded by the EC since at least 2007, MILE (Metadata Image Library Exploitation), which is confessedly ‘co-ordinated by the Bridgeman Art Library’. Activity on its database (http://orphanworks.ssl.co.uk) has not been intense: to date: there are precisely seven ‘resolved orphan works claims’. The website gives this definition (by a then employee of the Bridgeman Art Library): ‘Orphan Works are works of art (and other copyrighted material) that are believed or known to be in copyright but whose copyright owner is unknown or untraceable. Orphan Works can be original works of art, or an original image (e.g. a photograph) of a work of art. When an original work of art is out of copyright, images of that work of art may continue to be in copyright.’ You have to admire that disingenuous ‘e.g. a photograph’: not ‘e.g. a drawing or a painting of a work of art’, but ‘e.g. a photograph’, as if it were not the most contested instance. And, according to the final sentence of the definition quoted here, copyright may continue to the crack of doom. This definition of ‘copyright’ in reproductions is effectively repeated by the Tate (www.tate.org.uk/about/media/copyright), which actively supports this retrograde protectionism. It is distressing to find that an institution that looks after one of our great public collections is more interested in constricting knowledge about those collections than in promoting the free understanding of them, which ought to be its overriding objective.

Readers are urged to make their submissions in objection to these unfortunate proposals (reference Intellectual Property Office 2011-004) by 21 March 2012: http://www.ipo.gov.uk/pro-policy/consult/consult- live/consult-2011-copyright.htm