Legal issues surrounding copyright and the desire to ensure the free availability of our cultural heritage have been in conflict for some time. The legal dispute between Wikimedia and the Reiss-Engelhorn Museums in Mannheim reveals how high the stakes are.
The debut performance of the opera Das Liebesverbot was a bad memory for Richard Wagner. The Magdeburg Theatre’s young musical director had little time to rehearse. The singers didn’t know the lyrics. The orchestra was not in tune. Nobody wanted to see the second performance—it was cancelled, in fact. But the opera’s themes had contemporary relevance: justice and injustice, freedom, and—of course—love. Wagner had the citizens of Palermo rebel against laws and prohibitions they felt to be unjust. In the end, bans directed against the carnival and its activities turn out to be ineffective, leading to a downright counter-revolution. Even 180 years after the premiere, passionate arguments concerning legality and the effect of prohibition still rage. This time, Richard Wagner (or rather his portrait) stands centre-stage. Only, this time, it’s not about carnivals or love. It’s about replication, copyright, and the duty of museums.
In the summer of 2016, two trials in Germany aroused particular media interest. Wikimedia and the Reiss-Engelhorn Museum in Mannheim fought over image rights and copyright. It concerned the question of whether photos of a painting in the public domain could be deemed non-public domain replica, given their protection by photographic image law. Or—from another perspective—whether the photographed picture’s public domain status is also valid for a reproduction photo made of it. The signal effect of the judgement goes above and beyond its legal dimensions. It concerns this fundamental question: whether (and to what degree) public museums could (and should) have control of the cultural assets in their holdings.
First act: the legal dispute
Regional courts in Berlin and Stuttgart had the task of adjudging whether or not numerous images of artworks belonging to the Reiss-Engelhorn Museum should be allowed onto Wikimedia Commons and Wikipedia. All of the photographed artworks—including a famous portrait of Richard Wagner—have not been copyright protected for a long time. As a rule, this expires 70 years after the author’s death. The artist responsible for Wagner’s portrait, Cäsar Willich, died in 1886. A large percentage of Wikimedia communities are of the opinion that unaltered copies (and reproduction photos) of such paintings can no longer be protected in the same way. Therefore they can be uploaded to (and used on) Wikimedia without further permission.
The Reiss-Engelhorn Museum saw it differently. They sued for omission, and in the first instance were ruled to be in the right. The courts decided that in future, scans of pictures produced by an in-house photographer for a museum publication are not allowed to be used without permission—nor are photos taken by museum visitors. In this way, the museum wished to both control the picture’s use, and protect revenues from image license sales.
Now the dispute has come to the second instance. That means that the final decision is still pending. How copyright deals with professional reproduction-photography is still a question in need of an answer. But the bigger question lurking behind it concerns the self-perception and educational duty of our state museums and other heritage institutions.
Second act: The underlying issue
At present, museums are tasked with the huge challenge of maintaining their connection to the digital world. Cooperation with the online encyclopaedia Wikipedia and its sister projects will help them fulfil their roles of both storing and communicating knowledge. A reference in Wikipedia is free advertising for them, and helps make special interest topics visible. However, this positive assessment by heritage institutions can sometimes be clouded when pictures of their collections appear—unannounced—on a Wikipedia page.
The Reiss-Engelhorn Museum is now defending itself against this loss of control through a combination of copyrights and their domestic authority to regulate conduct on the premises of the museum. The exclusive copyrights of in-house professional photographers should prevent already existing public domain photos being released as open content on platforms such as Wikimedia Commons. In addition, domiciliary rights can be used to prohibit Wikipedia contributors or other visitors from creating their own photos of the objects inside the heritage institutions. If these measures are legally confirmed, it will no longer be legally possible to put public domain objects of our cultural heritage online without the institution’s permission.
An oft-aired, central argument for the need for control is that museums are apparently operating at a loss. In their legal action, the Reiss-Engelhorn Museum refer to being “not only entitled, but also duty-bound—according to the principle of breaking-even—to charge appropriate fees in particular for the mandated, copyright protected works they produce, as well as for arising expenditures from their property, and to prevent their use otherwise”.
If sales revenues should really be necessary for an institution to survive, an insoluble contradiction would emerge. The maximum possible dissemination of cultural heritage could only be achievable through re-imposing limitations of exclusive property rights. If the budgetary policy of public authorities were really to create this pressure for funding, they would be directly contradicting the institutions’ public service remit.
Third act: cooperation, not control
Disputes about the interpretation of copyright law will still be carried out in court. But fundamental questions remain: what does the public educational mandate of museums mean today? How can an educational mandate continue to exist in the digital sphere? Should individual heritage institutions determine access to our common cultural heritage? These are the questions we should be debating in public.
Wikipedia is a good example of how cultural heritage—independent of actual places and opening times—can be spread far and wide. Open digital data not only makes the consumption of text and image possible, but also (through further use and development) allows for true debate in the spirit of lifelong learning. Here, then, the museum’s perspective should be cooperation, not control.
Should the courts finally decide that the digital reproduction of public-domain Wagner portraits does indeed install new photography rights, museums should support a revision of copyright law. Perhaps, in th aftermath of this heated debate, the museums will join the young Wagner and demand, “Burn the laws to ash!”—a revolutionary reset.