The Art Museum Image Consortium: Licensing Museum Digital Documentation for Educational Use

Spectra, Fall 1997

J. Trant and D. Bearman, Archives & Museum Informatics

1. Introduction

The Association of Art Museum Directors (AAMD) has launched the Art Museum Image Consortium (AMICO) to provide educational access to and delivery of cultural heritage information by creating, maintaining and licensing a collective digital library of images and documentation of works in their collections. 1 Its foundation reflects the desire of a significant number of North American art museums to take advantage of an emerging new educational opportunity. 2

Representatives of over 40 museums met, both face to face and on-line between March and July 1997, to identify the best way to form an organization that will offer the administrative and legal efficiencies necessary to serve the educational community, and to define effective mechanisms for the collection and distribution of a multi-media digital library documenting and interpreting their collections. Their consensus is outlined in a series of documents that will frame the operation of the Art Museum Image Consortium. Articulated at the level of values and objectives, these agreements cover: Founding the Consortium (including membership terms); A Framework for Defining Educational Products, Licenses, User Requirements and Distribution Methods; separate Licenses for the University and Museum Educational Use of AMICO Licensed Digital Content; a Strategic Planning Framework and preliminary schedule, and a Standards Framework including preliminary Core Content Requirements. All of these documents are available for public comment on the AMICO Web site at www.amico.org.

2. Educators, Museums and Digital Documentation - the current situation

Access to the rich documentation of our cultural heritage held in museum collections has long been a problem for members of the educational community. But what was an irritation in traditional scholarship has become a bottleneck the educational use of museum digital documentation. 3 The digitized text, still and moving image, sound, and multi-media data being created in museums provides a desirable source of content for the creation of on-line educational materials, and as the experimental Museum Educational Site Licensing (MESL) Project 4 has shown, the higher educational community is ready and willing to incorporate museum digital content into their teaching and learning processes. This includes a newfound interest in the use of images as research resources , as technologies are finally enabling their easy reproduction and integration into documents. 5 Despite this increased demand, the cultural heritage community is without the economic and distribution systems that would enable this use. The cultural heritage community has a long way to go before it can respond to this demand in a coherent and predictable manner. 6

Readily identifying and gaining rights to use museum digital documentation is a time consuming and frustrating task. There is as yet no common catalogue to assist in locating items, so researchers rely on the publication trail to identify particular works, while others languish unknown. in museum vaults. There are no consistent terms and conditions of use for digital museum documentation, so each request is negotiated individually, adding to the cost and time it takes to request and grant permissions. 7 There are no common fee scales for educational use of digital content, so often museums simply transpose their charges from the analogue world, resulting in cost per work charges that are prohibitive for the vastly increasing numbers of reproductions interactive educational materials. And often, museums are without precedent or policy regarding new digital educational uses, and are reluctant to grant rights at all in a rapidly changing environment. 8

Museums are wise to be concerned for the protection of intellectual property rights, and the moral rights of artists whose works are in their care. 9 New opportunities for distribution of information also create new possibilities for its abuse. But the potential for reaching the educational community in an entirely new way is too great to ignore, and there are means for protecting intellectual property rights in the digital environment. Primary among these is a license, that acts as a contract between the provider of digital information and its user. A license can specify how digital information can be used, by outlining licensed users and licensed uses. It can also place limits or controls on the re-use or redistribution of information. Licenses also enable uses that might not otherwise be permitted, and can extend the (at best, limited) concept of 'Fair Use' under which many educators now make copies to include curricular uses that would not be possible otherwise.

Recent disputes over "Fair Use" have only further complicated image access for educators. Under US Copyright law 10 educational users are able to reproduce, and redistribute works without permission subject to particular limitations: a test know as the "four factors" that define "Fair Use". The Committee on Fair Use (CONFU) met for two years between 1995 and 1997, with the mandate to develop guidelines for the application of Fair Use in the digital realm. 11 The drafted CONFU guidelines offered an interpretation of Fair Use in areas including Digital Image Archives, Multimedia, Distance Learning, and Electronic Reserves. But many organizations refused to ratify the drafts, arguing that it was too early to create fixed rules in a time of fast-paced change. 12 Although these discussions have made it clear that there are many uses that educators wish to make of copyrighted materials that stretch or exceed the current definitions of Fair Use in the Copyright Act, and that the Fair Use defense is not an enabler for integrating digital materials into educational programs, there is now no clear path for educational institutions to follow to obtain adequate rights. And, of course, any guidelines such as those proposed by CONFU, even if adopted, will only deal with the terms and conditions for use of copyrighted information; they will not assist a user in locating the copyright holder, or in obtaining a digitized version of a copyrighted work. Common terms and conditions for the educational use of museum information are one of the key elements in an efficient distribution systems. Other components are administrative procedures that ensure the efficient acceptance and processing of reproduction requests, distribution systems that ensure the timely delivery of licensed information to users, and a financial procedures that establish reasonable fees, encourage increased use, and collect licensing income with minimal effort. All these are currently lacking.

3. What are the Options for Museum Rights Administration?

Many options exist for museums to administer rights to photographs and digital documentation, that offer different strategies for handing the legal, administrative, distribution and financial aspects of licensing. These range from going it alone, and handling the entire process institutionally, to assigning all rights to a re-seller, with many options in-between. Each has pros and cons that must be considered before a museum commits to a particular process. In thinking about administering rights, whether on one's own or through a third party, it is necessary to distinguish between administering terms for established one time uses, reselling or relicensing rights for future unspecified uses, and licensing specified rights for a particular type of use. As a consequence, the varied administrative options are not in conflict, and a museum may decide to reach one group of users one way, and another group with a different strategy. Having third-parties handle rights for a group or sector of rights holders can have several benefits. It provides a single point of contact for the user to seek certain rights. It usually provides common (or at least comparable) terms and conditions of use across a range of rights holders. And it can contribute to administrative efficiency or at least enable the rights holder to focus on their real business. In many countries, collective administration of rights is required by law for some sectors. On the other hand retaining the licensing function within the museum for certain types of uses preservesi nstitutional autonomy in sensitive areas.

3.1 Do it Yourself

Traditionally, museums have handled rights administration in-house, with a staff member in the Registrar's Office or Photographic Services department assigned to process reproduction requests as they are received. Museums have each developed their own policies and procedures for handling different types of requests. In some cases, these are systematized into a series of forms and standard contracts. 13 In others, each request is evaluated on its own merits. The museum handles all correspondence and administration of reproduction requests and bears any associated costs, and in return, keeps all revenues.

3.2 A Brokerage/Agency

Specific rights can be assigned to a brokerage or agency, who would act on behalf of a rights holder and process reproduction requests. In this scenario, a third party administers rights in return for a fee. This has become most common in the commercial photography sector, where organizations such as The Image Bank <www.theimagebank.com> offer large catalogues of images on-line for license. Operating under a license assigned by image suppliers, these organizations handle the administration of reproduction requests, and offer images under standard, or custom license terms. They also distribute images in the format requested by the licenser. Income is returned to the image producer, after the payment of a percentage or some other fee is made to the brokerage or agent. Payment terms vary with each agency. While some existing agencies handle the work of contemporary photographers and digital artists, there are few options for licensing museum images in this manner.

Agencies offer a more streamlined administrative process for users, and remove this burden from the rights holders. They also offer a greater marketing potential, because a large pool of content may have a greater draw than an individual collection. However, there are many different agencies, and no single way for a user to search them. Terms and conditions and fee structures vary between agencies (and often within agencies), and the quality of the information delivered is uneven. The financial return to the rights holder will vary, based on the contract they are able to negotiate with their agent.

3.3 A Rights Re-seller

Another option for third party administration of rights is to sell or assign rights, including the right to assign rights to others, to a rights Re-Seller. These organizations, of which Corbis <www.corbis.com> is perhaps the most well known in the museum community, purchase the license to works from individuals or collections, often at a fixed fee, and then re-license them at a profit. Original rights holders seldom receive percentage royalties in this case, but rather are given a lump-sum payment for the unlimited re-use of their images over a specified period. The re-seller then takes on marketing, administration, licensing, distribution and fee collection. For the rights user, this has an advantage because a large amount of content from differing collections may be made available at a single point. However, the rights holder has little control over how and where an image may be used. Profits are taken by the re-seller.

3.4 A Rights Holder's Collective

In most countries, rights holders may (and sometimes must) administer their rights collectively. In effect this is a special exemption to anti-trust laws which prohibit market collusion and keeps control of a third-party agency in the hands of rights holders. This form of collective licensing involves a central organization administering rights on behalf of its members. The most well-known copyright collectives in the US are ASCAP (for music) and the Copyright Clearance Center, (for rights to photocopy print). Artists' Rights Societies are also familiar to most museums of contemporary arts.

More active in the digital world is the American Society of Media Photographers (ASMP); it has recently formed the Media Photographer's Copyright Agency <www.mpca.com>. Members license works to MP©A, which in turn administers licenses to use these images. Acting on behalf of its members, the MP©A's mission is to "facilitate the business relationship between photographers and their clients, and to reduce costs of transactions, thus increasing the profitability of both, while advancing ethical, clear, fair, and acceptable business practices." 14 While acting as an agent, in the same manner as described above, handling all license negotiation, processing of requests, image distribution and fee collection, its close linkage with the artist-rights advocacy of its fostering agency, ASMP, ensures that MP©A's terms and conditions favor the rights holder, and that creators receive a maximum return from the digital use of their work. Good relations with rights holders may also improve the quality of the content represented.

3.5 A Locator Service

Networked communications have encouraged a new hybrid organization that attempts to overcome the difficulty users have in locating images while leaving control over the administration of rights in the hands of the rights holder. Acting as a finding agency, The Image Directory <www.imagedir.com> is creating a merged catalogue of images in museum collections and elsewhere. Rather than administering rights to the works represented in this catalogue, however, ID passes through a request to the holding institution, and takes a small percentage of any resulting license fee to cover its costs. Such a model offers an attractive, one-stop-shopping alternative for rights users, but does not facilitate the rights clearing process for rights holding institutions. They are still required to process requests on a work-by-work basis. As well, the user still has to face a broad range of licenses, each reflecting the terms and conditions of particular institutions. Fee scales will differ, as will content delivery, payment and collection methods. 15

3.6 A rights holders and rights users organization

It is possible to envision rights holders and rights users acting together to form a membership-based organization that would exchange information for mutual benefit. While experiments such as the Museum Educational Site Licensing Project bring rights holders and rights users together, it is unlikely that a long-term organization will form following this model. There don't seem to be any such organizations. Although the Research Libraries Group (RLG) or OCLC 16 are often cited as examples by libraries, in fact, they are organizations which create resources which they license to others, including end-users or libraries outside their own membership.

4. The AMICO Model

Within this context, the Association of Art Museum Directors felt that a consortium of museums that collectively licensed the pooled content of its members would be the most effective means of distributing digital information to the educational community. To establish how best to form the Art Museum Image Consortium, members were invited to send representatives to a series of planning meetings facilitated by Archives & Museum Informatics. These meetings focused on the development of a series of agreements that articulated the values and priorities of potential members.

As the discussion developed, it became clear that there were a many benefits to acting consortially, beyond those of collective licensing. AMICO enables its members to do a number of things they cannot do on their own, including:

• Creating a collective library of art from North American museums for educational uses
• Reaching the educational community in a coordinated and cost effective way
• Leveraging influence with vendors to reduce costs of capturing this data
• Enabling its members to have access to collective funding to pursue their educational missions
• Assisting members to improve their information infrastructures and documentation practices
• Negotiating digital rights with artists and artists estates and with museums in other countries
• Providing members access to each others holdings for their own educational uses

Collaborating in AMICO can also help individual museums by reducing risks through collective decision-making, adopting common standards and guidelines and sharing expertise. AMICO is a not-for-profit organization. Its membership, through the Board, will govern how income is allocated to services. All licenses and products offered by AMICO will be approved by its members.

In order to enable its members to contribute to the shared Library, and to ensure that the AMICO Library is attractive to the educational community, AMICO will offer a number of services to its members. These will include:

1) Technology Information Services, including "best practice" guidelines, "frequently asked questions", standards for data capture, advice on hardware and software, application guidelines, training and research and liaison with developing standards

2) Data Enhancement Services, including data value standardization, the addition of unique identifiers and watermarking of images, subject indexing, metadata augmentation, thesaural explosion of terms in controlled vocabularies, markup of text to SGML, and mapping institutional data to export standards.

3) Catalog Management Services, including creating an integrated, publicly accessible directory with many access points and different interfaces for different users which enables educators to identify works which they have licensed and may use through AMICO, and allows the public to seek further rights including commercial use rights from the individual museum members.

4) Rights Management Services, including defining the minimum rights management data requirements, creating searchable rights metadata systems, negotiating rights with individual rights holders and their collectives, writing model licensing agreements, providing a forum for and developing terms of licenses for schools and school districts, museum education departments, and public libraries, and developing and disseminating end-user responsibility training materials.

5) Customer Services, including monitoring and analyzing uses and users, conducting focus groups to identify users needs, and promoting innovative educational uses of museum digital content.

6) Collaborative Partnering, including liaisons with technology firms, funding sources, standards organizations, telecommunication providers, and others.

One significant advantage to developing a museum-owned collective in the United States is that it will be well positioned to collaborate with government sponsored agencies in Europe and elsewhere. Following the example of other sectors such as music, AMICO could develop international agreements that would ensure access to the collections of other countries' museums. Since culture knows no boundaries, this approach holds one of the greatest promises for alleviating some of the "35mm view of the world" so common in undergraduate work in disciplines such as art history, and offers the potential to construct a real international network of cultural heritage information.

Conclusions

In his Introduction to The Wired Museum, 17 Maxwell Anderson ponders the benefits and the impact of increased access to the collections of cultural heritage institutions on-line. Rather than fearing the simulacra of digital reproduction, Anderson embraces the potential for developing increased familiarity with, and knowledge of the world's material culture. By making collections available on-line, and by taking advantage of the opportunities technology offers for their detailed examination, study, and juxtaposition, we can improve our understanding of the works in our care. Rather that resisting the pull, museums must embrace the opportunity to reach out to a new generation of students and visitors.

By making our collections available in digital form, we can encouraging their use. In a time of many challenges from entertainment, and ill-disguised edu-tainment, networked educational resources that draw on museum collections offer the promise of a new relevance. What is necessary to do this is a creative approach to the design of new economic and administrative models, supported by distribution systems, that take advantage of the communicative potential of digital networks. In an era of shrinking budgets, and challenges to the very existence of some national arts institutions, we have the opportunity to make the cultural resources of our museums more relevant, and more accessible to a wide range of educators and students. This is the first step towards their using these resources creatively, to illustrate and explore history, art and culture. A visually and culturally literate public that feels an ownership of its museum collections is our best hope for their preservation and continued relevance.

Notes

1. Archives & Museum Informatics has been retained by the AAMD to facilitate the planning and organisation of AMICO.

2. Participants also recognized that by creating this educational resource they might gain higher visibility for digital content that individual museums could themselves license for single-item commercial uses.

3. At a meeting sponsored by the Getty Art History Information Program in March 1994, leaders in the educational community identified three major barriers to the integration of visual information into cultural heritage networks, all of which are still present: a critical mass of digital content available for educational use, effective intellectual property rights clearance mechanisms, and adequate standards. See Getty AHIP, Initiative on Electronic Imaging & Information Standards, Imaging Initiative Meeting Report (March 3-4, 1994).

4. See the project Web site at www.gii.getty.edu/mesl for the Final Report of the MESL project (announced for publication in September of 1997). -- Note: Links to the MESL project site are no longer active, as this site is no longer maintained.

5. Clifford Lynch, "The uncertain Future for Digital Visual Collections in the University", Archives and Museum Informatics, a cultural heritage informatics quarterly, Vol. 11, no 1, 1997, 5-13.

6. The issues in moving from experiment to reality are explored by David Bearman in "New Models for Administering Cultural Intellectual Property", The Wired Museum, Washington, DC: American Association of Museums, 1997, 231-266.

7. The licensing experiences of one museum are explored in a case study by Janice Sorkow, "Pricing and Licensing for Museum Digital Content" in Museums and the Web 97: Selected Papers, Pittsburgh, PA: Archives & Museum Informatics, 1997, 41-57. The perspectives of scholars are explored in a number of articles in Copyright and Fair Use, the Great Image Debate, a special issue of Visual Resources, Vol. XII, no. 3-4, 1997.

8. These issues are explored in detail in David Bearman and Jennifer Trant "Museums and Intellectual Property: Rethinking Rights Management for a Digital World", in Visual Resources, Vol. XII, no. 3-4, pp. 269-280.

9. The issues of licensing images, and the inter-related and layered rights questions, are outlined in J. Trant, "Exploring New Models for Administering Intellectual Property: The Museum Educational Site Licensing Project", Digital Imaging Access and Retrieval, Papers presented at the 1996 Clinic on Library Applications of Data Processing, March 24-26, 1997, Graduate School of Library and Information Science, University of Illinois at Urbana-Champagn, ed. by P. Bryan Heidorn and Beth Sandore, University of Illinois, 1997. This paper also explores options for licensing.

10. For a primer on US copyright law see the Web pages of the Copyright Office at www.loc.gov/copyright

11. See the Copyright pages of the web site of the National Initiative for Networked Cultural Heritage (NINCH) at www.ninch.org/for links to all the draft guidelines and comments on them from a number of educational and library agencies. See also the US Copyright Office <www.loc.gov/copyright>.

12. It should be noted that throughout the CONFU discussions, while there was some dispute about 'portion limitations' none of the guidelines endorsed the systematic creation of publicly accessible digital archives as a fair use of copyrighted materials.

13. Janice Sorkow, discusses the software and forms used in the Museum of Fine Arts Boston, in her case study for Museums and the Web. Organisations, such as the Registrar's Committee of AAM, also collect and share forms and procedures for rights administration.

14. See http://www.mpca.com/pages/mission.html

15. See J. Scott Bentley, "The Image Directory", Spectra Vol. 24 #3, p.48-49. Ultimately, it may be that by putting licenses on-line and integrating the licensing process into their Web site, the Image Directory will become more and more like an agency.

16. See www.rlg.org for RLG and www.oclc.org for OCLC. It is this kind of model that MESL originally explored. However, the hard realities of economics and institutional interests make it very difficult to move collaboration beyond the experimental stage.

17. Maxwell L. Anderson, "Introduction", The Wired Museum, 1997, pp. 11-34.