The Associated Press has picked up on a story involving public access to images in the Smithsonian Institution.  Public.Resource.Org has posted 6,288 images currently sold by the Smithsonian on Flickr (a book of the images can be downloaded for free from Lulu.com), arguing that the U.S. institution is overreaching by claiming copyright or control over images that are in the public domain.

The issue is an important one that should also resonate in Canada.  Some readers may recall the battle between a small school division in Manitoba and the National Gallery of Canada over fees levied for a public domain Paul Kane painting. In the wake of that incident, I've been working with some students to identify how Canadian museums address access to public domain works in their collections.  The research is not yet complete, however, the preliminary news is not good. 

Museums are strapped for cash and therefore use their physical control over images to levy fees over public domain works.  While a cost-recovery fee for digitization or administration is understandable, many institutions go much further charging "surrogate copyright fees" or "user's fees" for public domain works or deploy technology to limit the potential uses of digitized versions of those works. 

For example, consider Emily Carr, whose work entered the public domain in 1996. 
A B.C. site focused on Carr advises that her work is in the public domain but that reproductions of her works are subject to copyright, which resides with the galleries. The Art Gallery of Ontario's excellent Collection X site features some of Carr's work, with a copyright notice as well as low-resolution photographs that limits the ability to re-use the image.  The AGO is not alone – Canadian Heritage's Artefacts Canada posts thumbnail images of hundreds of Carr works all implying that the works are subject to copyright.

These claims are open to serious challenge.  The seminal case on point is a U.S. decision, Bridgeman Art Library v. Corel Corp., in which the court ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality (the court also ruled that it thought that UK copyright law would treat the issue in the same manner). 

It is very likely that Canadian courts would adopt the Bridgeman analysis. The Supreme Court of Canada's CCH decision addresses the issue of originality under copyright, with a unanimous court ruling that:

For a work to be "original" within the meaning of the Copyright Act, it must be more than a mere copy of another work.  At the same time, it need not be creative, in the sense of being novel or unique.  What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.  By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work.  By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.  For example, any skill and judgment that might be involved in simply changing the font of a work to produce "another" work would be too trivial to merit copyright protection as an “original” work.

The court went on to state that:

this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.  When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation.

So what does this mean for images of public domain works?  As the court says, the image must be more than a mere copy of another work.  In many instances (ie. the Carr images), it does not appear that there is anything more than a mere copy of a public domain work.  While museums are understandably searching for revenue streams, doing so on the basis of misleading copyright claims is not the way to do it.  In fact, as Canadian Heritage Minister Bev Oda finalizes the long-awaited museum policy, she should use the opportunity to say so by creating a clear link between access to public domain works and public financial support for the institutions that house those works.