In this guest post, Dominic McDevit-Parks, User:Dominic, reports on his work as the first Wikipedian in Residence at the National Archives and Records Administration. A Wikipedia contributor since 2004, Dominic is studying history and archives management at Simmons College.

Ansel Adams, 1941

In the 1940s, Ansel Adams, the famous American landscape photographer, was commissioned by the US Department of the Interior to photograph the country’s national parks. As a result, these photographs by a major 20th-century artist entered the public domain as federal works, and eventually became part of the records held by the National Archives and Records Administration. However, despite the fact that these photographs are part of the world’s shared cultural heritage, they had never truly been freely accessible to the public in all their glory. For decades, they were simply a physical collection of prints housed in the National Archives, until the late 1990s when the National Archives digitized the photos as part of its Electronic Access Project. They made their way into the National Archives’ catalog, were given an online finding aid, and were placed into their own Flickr album. In these three cases the images made public were scaled-down versions made for the web. They were, however, accompanied by advertisements encouraging interested users to purchase high-quality prints of the photos, and presumably this potential source of income served as a deterrent for releasing high-resolution digital scans. This tale should teach us an important lesson: that the public domain is not always public—even (sometimes especially) for works of incredible historical and artistic merit like these.

For Ansel Adams, there is a happy ending. The current incarnation of the National Archives, especially under the stewardship of David Ferriero, Archivist of the United States, has signalled a deep commitment to openness and free digital access to its holdings. It is also incredibly friendly to the cause of Wikimedia. One of the first things we worked on when I joined the National Archives as their Wikipedian in Residence was freeing the Ansel Adams collection, and this is something that they were very eager to accomplish. You can see all 220 photos now, in high resolution, on Wikimedia Commons, and the original TIFF files from the scans are going to be available soon. This is not a special case, though; the National Archives has put no restrictions on what we can obtain from their already-digitized files, and they would even like to work with any scanning volunteers to help digitize more.

I would also like to emphasize to the Wikimedia community that this is a two-way street. The National Archives can cooperate with Wikimedia because we share common goals like open access and public education, but they are reaching out specifically to us because we are in a unique position to add value to their holdings. We need to demonstrate our seriousness by following through as a community. This means incorporating new, high-quality images from the National Archives into Wikipedia articles so they don’t just languish unused and undiscovered, fully categorizing them on Commons, digitally restoring historical images, working to transcribe them on Wikisource, and even creating new content on Wikipedia to accompany and enrich National Archives documents. We can start this effort with Ansel Adams—and I encourage you to get involved with that project—but this is also hopefully only the beginning of a very fruitful collaboration.

You can get involved in the various projects at WP:NARA, WS:NARA, and COM:NARA.

Dominic McDevit-Parks
Wikipedian in Residence, National Archives and Records Administration

Yesterday, the Electronic Frontier Foundation (EFF) filed an amicus (“friends of the court”) brief in Golan v. Holder, a case of great importance before the Supreme Court that will affect our understanding of the public domain for years to come. The EFF is representing the Wikimedia Foundation in addition to the American Association of Libraries, the Association of College and Research Libraries, the Association of Research Libraries, the University of Michigan Dean of Libraries, and the Internet Archive.

This case raises critical issues as to whether Congress may withdraw works from the public domain and throw them back under a copyright regime.  In 1994, in response to the U.S. joining of the Berne Convention, Congress granted copyright protection to a large body of foreign works that the Copyright Act had previously placed in the public domain.  Affected cultural goods probably number in the millions, including, for example, Metropolis (1927), The Third Man (1949), Prokofiev’s Peter and the Wolf, music by Stravinsky, paintings by Picasso, drawings by M.C. Escher, films by Fellini, Hitchcock, and Renoir, and writings by George Orwell, Virginia Woolf, and J.R.R. Tolkien.

The petitioners are orchestra conductors, educators, performers, film archivists, and motion picture distributors who depend upon the public domain for their livelihood.  They filed suit in 2001, pointing out that Congress exceeded its power under the Copyright Clause and the First Amendment of the U.S. Constitution.  They eventually won at the district court level, but that decision was overturned on appeal in the Tenth Circuit.   The U.S. Supreme Court – which rarely grants review – did so here.

Petitioners filed their brief last week, and you can find it here. We are expecting a number of parties to file “friends of the court” briefs.   The EFF’s brief can be found here.

The Wikimedia Foundation joined the EFF brief in light of the tremendously important role that the public domain plays in our mission to “collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally.”  We host millions of works in the public domain and are dependent on thousands of volunteers to search out and archive these works.  Wikimedia Commons alone boasts approximately 3 million items in these cultural commons.  To put it bluntly, Congress cannot be permitted the power to remove such works from the public domain whenever it finds it suitable to do so.  It is not right – legally or morally.   The Copyright Clause expressly requires limits on copyright terms.  The First Amendment disallows theft from the creative commons.  Such works belong to our global knowledge.  For this reason, we join with the EFF and many others to encourage the Court to overturn a law that so threatens our public domain - not only with respect to the particular works at issue but also with respect to the bad precedent such a law would set for the future.

We anticipate the Court will reach a decision sometime before July 2012.

Geoff Brigham
General Counsel, Wikimedia Foundation

One might think that a recording of Beethoven’s or Schumann’s music is in the public domain, free for anyone to share and enjoy, but that’s only the case if the recording artists decide to make their specific performance freely available. Most recordings of classical music are, in fact, copyrighted, and can’t be used without permission. Musopen is an independent charitable organization that’s recording music in the public domain, and making the recordings freely available as public domain works as well.

Now, Musopen is raising funds via the Kickstarter platform: Set Music Free. They’ve exceeded their $10,000 goal, but chipping in additional funds can only help. They are also looking for votes in the Pepsi Refresh Project, which could get them a $25,000 grant.

Wikimedia and other free culture projects benefit from these recordings: There are already more than 100 Musopen recordings of public domain music in Wikimedia Commons, used in more than 45 different Wikimedia projects. We wish Musopen success. Their work will help keep classical music alive.

See also: EFF coverage

Wikimedia UK is celebrating “Public Domain Day,” this Friday, January 1, 2010.  The first day of every year in the United Kingdom, copyright expires on published works by individuals who died 70 years prior–this year in 1939.  Works by these individuals fall into the Public Domain in the UK. This year, the poetry of W. B. Yeats, the early works of Sigmund Freud, and Arthur Rackham’s classic children’s book illustrations will be released and made available.

You can read more about Wikimedia UK’s plans for Public Domain Day here.

Cary Bass, Volunteer Coordinator
Wikimedia Foundation

Last week, the National Portrait Gallery in London, UK sent a threatening letter to a Wikimedia volunteer regarding the upload of public domain paintings to Wikimedia’s media repository, Wikimedia Commons.

The fact that a publicly funded institution sent a threatening letter to a volunteer working to improve a non-profit encyclopedia may strike you as odd. After all, the National Portrait Gallery was founded in 1856, with the stated aim of using portraits “to promote appreciation and understanding of the men and women who have made and are making British history and culture.” [source] It seems obvious that a public benefit organization and a volunteer community promoting free access to education and culture should be allies rather than adversaries.

It seems especially odd if seen in the context of the many successful partnerships between the Wikimedia community and other galleries, libraries, archives and museums. For example, two German photographic archives, the Bundesarchiv and the Deutsche Fotothek, together donated 350,000 copyrighted images under a free content license to Wikimedia Commons, the Wikimedia Foundation’s multimedia repository. These photographic donations were the successful outcome of thoughtful negotiations between Mathias Schindler, a Wikimedia volunteer, and representatives of the archives. (Information about the Bundesarchiv donation ; Information about the Fotothek donation)

Everybody ended up winning. Wikimedia helped the archives by working to identify errors in the descriptions of the donated images, and by linking the subjects of the photographs to accepted metadata standards. Wikipedia has driven new traffic to the archives. And the more than 300 million monthly visitors to Wikipedia have been given free access to amazing photographs of historic value they would otherwise never have seen.

More examples:

• During the past few months, Wikimedia volunteers have worked with cultural institutions in the United States, the United Kingdom and the Netherlands to take thousands of photographs of paintings and objects for Wikimedia Commons. This project is called “Wikipedia Loves Art.” Again, everybody wins: the museums and galleries gain greater exposure for the images, Wikipedia is better able to serve its audience, and people around the world are able to see cultural treasures they might otherwise never have had access to. (See the English Wikipedia page about the project and the Dutch project portal.)
  

• Individual Wikimedia volunteers work with museums and archives to restore digital versions of old images by removing visible marks such as stains and scratches. The work is painstaking and difficult, but the results are terrific: the work is returned to its original glory, with its full informational value restored. Audiences can appreciate it once again. (Restoration work is coordinated through the “Potential restorations” page, and many examples of restoration can be found among Wikimedia’s featured pictures.)
  

Three Wikimedia volunteers have summarized these opportunities in an open letter: Working with, not against, cultural institutions. On August 6-7, Wikimedia Australia is organizing an event to explore these and other models of partnership with galleries, libraries, archives and museums (GLAM).

Why do Wikimedia volunteers donate their time to painstaking restoration work, the photographing of art, and the negotiation of partnerships with cultural institutions? Because Wikimedia volunteers are dedicated to making information – including images of historic or informational importance – freely available to people around the world. Cultural institutions should not condemn Wikimedia volunteers: they should join forces with them in a shared mission.

We believe there are many wonderful opportunities for Wikimedia to work together with cultural institutions to educate, inform, and enlighten, and to share our cultural heritage. If you would like to get involved in the discussion, we invite you to join the Wikimedia Commons mailing list. Subscribe and introduce yourself – the list is read by many Wikimedia volunteers and by some volunteers associated with Wikimedia chapters as well as some Wikimedia Foundation staff. Alternatively, if there is a chapter in your country, you may want to get in touch with them directly. You can also contact the Wikimedia Foundation. Please feel free to send me your first thoughts at erik(at)wikimedia(dot)org, and I will connect you as appropriate.

The NPG is angry that a Wikimedia volunteer seems to have uploaded to Commons photographs of public domain paintings that are owned by the NPG. Intitially it sent threatening letters to the Wikimedia Foundation, asking us to “destroy all the images”. (Contrary to public claims, these letters did not include an offer for compromise. The NPG is possibly confusing its correspondence with a letter exchange in 2006 with a Wikimedia volunteer, which the user published here.) The NPG’s position seems to be that the user has violated copyright law in posting the images.

Both the NPG and Wikimedia agree that the paintings depicted in these images are in the public domain – many of these portraits are hundreds of years old, all long out of copyright. However, the NPG claims that it holds a copyright to the reproduction of these images (while also controlling access to the physical objects). In other words, the NPG believes that the slavish reproduction of a public domain painting without any added originality conveys a new full copyright to the digital copy, creating the opportunity to monetize this digital copy for many decades. The NPG is therefore effectively asserting full control over these public domain paintings.

The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums. In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:

“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.” [source]

Some in the international GLAM community have taken the opposite approach, and even gone so far to suggest that GLAM institutions should employ digitial watermarking and other Digital Restrictions Management (DRM) technologies to protect their alleged rights over public domain objects, and to enforce those rights aggressively.

The Wikimedia Foundation sympathizes with cultural institutions’ desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions’ educational mission. It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopedia serves any public interest whatsoever.

Erik Moeller
Deputy Director, Wikimedia Foundation