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November 30, 2017 12:56 PM

MESL: About MESL

New Economic Models for Administering Cultural Intellectual Property

by David Bearman, Editor, Archives and Museum Informatics , Pittsburgh USA

A paper presented at the Digital Knowledge Conference, Toronto, Ontario, February 7, 1996. Also presented at EVA Florence, Italy, February 9, 1996 with Jennifer Trant

Contents

Introduction

In the coming century, museums could potentially draw large numbers of new visitors electronically. This could enable them to better realize their social role and might represent the difference between their surviving as social institutions and being replaced by commercial info-tainment. To realize the potential of electronic access to cultural heritage, museums and other cultural institutions need to better understand how to organize the exploitation of cultural intellectual property in digital form. This means they need to advertise the availability of their intellectual property to potential users (end users and applications or commercial sectors that could re-use content) and enhance the qualities of their information holdings which are most desired by different market segments. It means they need to develop mechanisms to license their intellectual properties and receive fair returns for their use. And it means they will need to exploit conduits, consisting of new technical and societal mechanisms, through which cultural properties can be distributed.

As a first step, museums, archives, libraries and other cultural institutions holding unique intellectual property need to create a means for educational institutions to use this information within the context of the copyright law and with benefits to both the collecting institutions (content providers) and the educators (content users). In 1994, the Getty Art History Information Program and MUSE Inc. invited museums and universities to cooperate in the Museum Educational Site Licensing (MESL) Project to test the mechanisms for access to museum intellectual property by site license for educational institutions. The MESL Project, which commenced in 1995, provides a testbed for analysis of the economics of a future museum Rights and Reproductions Organization (RRO). Such a not-for-profit organization would be administered by rights holders to distribute museum content for educational uses. In order to be positioned to carry their collective activity forward after December 1997, the participants in the MESL Project need to undertake research on the costs and benefits of such an organization. The following paper discusses issues which effect the economics of such new mechanisms for achieving cultural heritage institutional aims.

Ultimately, cultural institutions will need to extend mechanisms they have created for non-commercial licensing to enable the commercial, mass market, exploitation of cultural intellectual properties in digital form. To date, museums, libraries and other cultural institutions have generally rejected aggressive industry suitors who are seeking to relieve them of their intellectual property in return for financial rewards, but the courtship has left many museum directors imagining that the digital publication and distribution environment of the next century will be a source of untold new wealth for their institutions. While it is too early to completely dismiss this optimistic conclusion, it is not too soon to identify the requirements which a cultural heritage intellectual property mechanisms would need to satisfy in order to reap financial returns. Even with such a mechanism in place, I believe there is reason to doubt that museums, archives, archaeological sites, or libraries will find themselves on digital easy-street, but without such a mechanism I am quite certain they will not have a major role in the 're-presentation' of our heritage through digital communications, with adverse consequences both to these institutions and to the quality of the past we carry forward into our future.1

I. The Current Situation

A. Emerging Digital Services and Products

Museums, archives, libraries and historical sites use limited and specialized means to convey their intellectual contributions to potential customers. They publish, but their publications rarely come from established publishing houses with broadly based distribution networks. They make films, videos and interactive multimedia but these products are rarely produced or distributed by entities with substantial market presence. They organize exhibitions, and occasionally these exhibitions travel, but they are held in specialized venues which attract only limited audiences. They license the use of images and reproduction rights for individual publications and commercial products, but the mechanisms through which these rights are negotiated and conveyed are so cumbersome as to prohibit the wholesale availability of museum digital content through popular distribution mechanisms such as CD-ROM's or public on-line services. And their educational arms create numerous interpretive products for special groups and special exhibits which are rarely seen by anyone other that the teachers for whom they were initially prepared. In brief, cultural institutions have virtually no access to the mass market and their intellectual property rarely reaches mass audiences even third hand.

Cultural institutions face two major challenges in making their information available to new digital consumers. First they need to imagine and help invent information services that would use their content and reach educational and mass markets. Second, they need to forge the means through which potential consumers could effectively access that information. These two requirements must be satisfied in tandem. Reaching consumers with new services involves creating needs where none previously existed or creating awareness of cultural intellectual property among people who don't even know about the institutions which make it. In either case, it means providing large numbers of potential customers with a means to interact with the museum. A third party, whether for profit or not-for-profit, needs to have a large enough pool of information, of interest to a broad enough audience, to justify investing in the creation of a new information service.

Most museum directors today are aware of some of the new opportunities created by digital media. For example, they may have heard plans for, thought about, or independently invented:

Cultural calendars delivered with airline tickets: Travelers might well want to know what cultural events are taking place in the cities they will visit and providing such information could be of value to travel agencies or airlines to distinguish their travel arrangement services from those of competitors, but there would be little interest in providing such information unless a substantial number of cultural institutions across a country or across the world agreed to provide a regularly updated "feed" for the information. At the minimum, some institutions from every major city within one country would be required. Remote museum visitation from home: Pre-viewing, reviewing or simply viewing exhibits at museums around the world might be a very desirable option for a cable company to provide to its subscribers, as linear video on demand or as a full, interactively option, but there would need to be a library of considerable size, from a variety of institutions and on a variety of topics, to make the service economical. At a minimum, a certain similarity in the way exhibitions were presented and a library growing by fifty or so exhibitions per year (which ensures a minimum change of at least one new exhibit a week) would be necessary to create and sustain consumer interest.

Sharing of educational materials beyond the community in which they were developed: School systems would love to have digital educational materials which classroom teachers could use to teach a range of subjects, but individual cultural institutions rarely have the holdings to produce a series of curricular materials on a wide range of topics and the market for resources developed from the holdings of a single museum are likely to be limited to the geographical region of that institution making production of such a series uneconomical for the publisher.

Travel agencies, cable providers, and schools are only a few of the possible distributors for cultural content. It is relatively easy to imagine many equally valuable new distribution channels, but in each case as services are envisioned the need for collaboration between a relatively large number of institutions makes itself apparent. The underlying issue is always that mass markets, which is where cultural institutions hope to find new profitabilityf content from a single source of supply. In addition, they demand relatively low delivery overheads and a promise of substantial new and updated content becoming available over time (and the promise to keep the information coming at least for long enough to determine if profitability can be achieved).2

As a consequence, making mechanisms to reach mass markets is not something that can be achieved by a single museum acting in isolation, no matter how important the museum may be. Even using existing mass market production and distribution mechanisms is not something that usually be done successfully, on an on-going basis, by individual institutions because by their nature museums, archives and other cultural institutions preserve and interpret only a small, unique, subset of the world's cultural heritage and there is a limited interest in presenting the specific sub-set held by any given cultural institution however great the collection at that institution might be.

B. Dysfunctions of the existing system for licensing cultural intellectual property rights

The current system for providing the commercial and educational markets with access to cultural intellectual property requires a potential customer to contact each museum, archive or library independently, identify items of potential interest, negotiate for rights to reproduce these under specific circumstances, and then arrange to acquire a copy in a usable format. Unfortunately, the current system for assignment of rights to museum ficient and can not compete with acquiring the data from other sources. At a recent conference in New York on intellectual property, developers of CD-ROM publications were urged not to bother even trying to acquire rights from museums because the system was so costly to use.3

So what is wrong with the current system? Rights and reproductions management in museums, archives and libraries is currently handled entirely independently, without reference to the practices of other institutions or any organized means of cooperation. Each institution sets its own fees, use parameters, and methods of payment. While the income from such licenses is appreciated, the volume of requests is such that staffing is as often left to a part time clerical as to a trained full-time professional. Cultural institutions typically have not developed sophisticated policies with respect to rights and reproductions licensing and few have any sort of policy yet on licensing of digital intellectual property. Virtually no cultural institution in the United States, for example, is able to offer prospective 'shoppers' a catalog of the image properties available for licensing, whether digitally or otherwise and there is no way to search across institutions or even for a single institution from remote location. Because they do not see licensing as a mission of the institution, many museums, archives and libraries can not even assure buyers that they have clear rights to intellectual property which is offered: they may have clear rights to the ptually cleared rights to the underlying objects.

The consequences of this complex system have been that despite generally receiving very favorable terms (often so favorable that the transaction costs to the museum granting the rights are not even fully covered), educational users have historically either copied images of museum works from books (and imagined that their doing so was allowed by fair use exemptions) or taken advantage of the typical on-site photography policies of museums and archives which allow visitors and researchers to take their own images and then use these slides without restriction or payment of fees. In addition to the obvious disadvantage of not earning licensing income, the system further penalizes the museum or archive because educators do not obtain the definitive documentation and interpretation which the cultural institution would prefer to see accompanying its images and because educators are unaware of how much additional information, including curricular material, bibliographic references, and links to other collection objects, could have been obtained through the museum.

The consequences of the system for commercial users have been equally negative. Historically, publishers have obtained rights for individual, high value items, for which their authors have already done the picture research, restricted their use of images to a limited number of collections to reduce the number of negotiations they need to engage in, obtained images (which might be less satisfere, or relied on curators who were putting together exhibits to do rights clearances, thereby indirectly charging the cultural institution the major expense of rights clearance. Because digital publications will, typically, use many more images than traditional print publications, the impact of increased costs for rights acquisition on digital publications is much greater.

If cultural institutions could provide a viable means of licensing their intellectual properties, users would have at least four potentially powerful rationales for use of museum images rather than others.

  1. although much image information is fungible, not all of it is - some things are definitely unique and can only be acquired from the source
  2. museums and archives document provenance and write interpretations based on associations with their holdings that are of great value both in identifying and appreciating them
  3. cultural institutions have reason and resources to generate images of much greater quality than are typically available from commercial sources. In digital images especially, they have reason to include color bars and size (scale) data
  4. museum data could be acquired with cleared rights

However cultural institutions often engage in activity that undermines these advantages.

  1. They often compete with themselves by making it easy to obtain images of unique items held by them from other sources. Past practices of distributing slides, allowing unrestricted photography of objects loaned on exhibit, or permiermines the sole source value of much of the content they are licensing. Commercial sources could have obtained, or may obtain, images from any of these sources of the same artifacts and documents otherwise available only be license issued through the cultural institution.
  2. Museum provenance and interpretive data is frequently withheld from image users, either explicitly or simply by not being included in their orders. The value of this information to distinguish the content provided by them from that available from other sources is under appreciated by the cultural institutions.
  3. Cultural institutions often provide images that are of poor quality and rarely include color and size bars. Often the original images from which the museum is working were taken for another purpose and do not show the work in its best aspect and, equally often, the negatives are old.
  4. Museums, in particular, often provide images with uncertain rights and caveats about using them because they did not explicitly obtain the necessary rights when they acquired the artifacts.

Because of the way in which the rights clearance and licensing systems have been operating, cultural institutions have historically not obtained significant income from rights and reproductions activity. In some cases the function has actually cost museums! In addition, they have ended up paying for inefficiency of rights clearance themselves as part of exhibition catalogue development and curatorial research. They have lost virtuaales and encouraged poorer quality images and data to be used for educational purposes, although they would much prefer to be able to participate in raising the quality of education using cultural intellectual properties.

C. Requirements for a New System of Rights Management

Cultural institutions could look to the commercial sector in order to better understand the requirements for a new rights and reproductions licensing regime. In the commercial world they would find three kinds of collective licensing structures: agencies which collect rights, brokers who represent rights holders, and cooperatives of rights holders who administer their rights collectively. In each case, access is provided to a large body of intellectual property. In the case of domains covered by cooperatives such as ASCAP or BMI, access is provided through one source to all intellectual property rights of a certain type. Agencies and brokers, of course, provide a searchable catalog of the properties they administer which is oriented towards users, and provides as many points of access as possible. Most importantly, from the point of view of potential licensees, each mechanism provides a unified fee structure or means of aggregating the rights fees and paying for a number of licenses in a single transaction.

From the perspective of the image rights consumer, an ideal system would support all phases of an end-to-end transaction. Costs at each step would thus be minimized and all costs incurred could be paid in the end as . These include picture research. The potential licensee should be able to search a database according to reasonable picture research parameters and pre-view images that might satisfy his search. acquisition. When images are retrieved which might be of interests, the user will want to review the terms and conditions for licensing them, calculate expenses based on the type of license desired, and order any which are desired. cataloging. The images should be delivered together with complete documentation, in a format that makes it easy for the user to build a catalog of images locally and to study the background information and interpretation. storage. A variety of formats should be available for each record, including highly compressed and non-compressed, in order to facilitate storage.

Other advantages to the consumer of using such services would include: known per item costs simplified payment or collection methods either by subscriptions, credit cards or running accounts, and legal risk avoidance

Museums, archives and libraries are public interest organizations which have as part of their mission the role of preserving cultural content and presenting it to the public, which makes them interested in being more than a simple source of image rights. Nevertheless, if they are to be a source of rights for digital images that will enter into educational and commercial information streams they will need to supply these through channels that the markets can use. At the highest level of abstraction, the reqc to cultural intellectual property management systems are, therefore, a hybrid of cultural institution values and market values including: image quality (scale/color) authoritative data remote availability ease of integration searchability local data manipulation, downloading and printing

While the impetus for establishing such a new mechanism may derive from a negative - without such a mechanism cultural intellectual properties will be little used by the mass market and will not earn income for the institutions that care for them - designers of a new mechanism should seek to maximize the positive administrative benefits to cultural institutions of participating in a unified licensing scheme, such as obviating the need to refile negatives, thereby reducing requirements for master image restoration and replacement, relieving on-site use of the reference facility and providing an income stream without per transaction billing expenses.

The advantages to the cultural institutions of providing images digitally through collective means could also include:

To Section II

Informatics: The interdisciplinary study of information content, representation, technology, and applications,
and the methods and strategies by which information is used in organizations, networks, cultures, and societies.