Memorandum submitted by Bridgeman Art
Library
Bridgeman Art Library—Submission to Culture,
Media and Sport Select Committee inquiry into new media and the
creative industries
The Bridgeman Art Library, established for nearly
35 years and employing some 55 people across its four international
offices, is the world's leading source of fine art, history and
culture with some 250,000 images available on-line, plus 750,000
historical photographs, from over eight thousand locations. We
maintain and develop a commercial picture library representing
museums, galleries and artists throughout the world by providing
a central source of fine art for image users. We also develop
educational resource packages, publish art catalogues, offer copyright
advice, licenses reproduction rights and provide sales services.
The Bridgeman Art Library has a long history of feeding monies
back into museums, of figures up to £1.5 million per year.
The Bridgeman Art Library has considerable expertise
in digitising art and we have a long history of collaboration
with museums digitising their collections. The Library works with
over 2,000 stakeholders world-wide, including 150 museums in the
UK enabling them to digitise their collections and create the
most comprehensive coverage of digitised cultural heritage in
the UK. The collections include images of design antiques, maps,
architecture, furniture, glass, ceramics, anthropological artefacts
and many others. We have contributed to the European digitisation
process by submitting a proposal to the eContentplus programme
designed to improve accessibility and usability of digital material.
The Bridgeman Art Library welcomes the Culture,
Media and Sport Select Committee's inquiry into creative industries
and would like to make the following specific comments which we
hope will be taken into consideration when the Committee makes
recommendations to the Government.
1. Impact of digital convergence on the Bridgeman
Art Library
The Bridgeman Art Library continually works
to find new markets within the creative industries by re-aggregating
and promoting its images in different ways. For instance, we have
created an educational history of medicine and science from 5,000
images for delivery via electronic distributors and have produced
booklets on different aspects of the collection showing the diversity
of the range available—female and feminist subjects, gay
culture, vintage posters, sport and design and different religions
among others.
Secondly, we have developed Bridgeman Education
as an innovative online educational subscription service primarily
aimed at educational publishers, academic tutors and their students.
It is designed to stimulate and boost e-learning and offers a
unique and flexible way to search over 8,000 locations covering
the world's major museums, art collections and historical sites
with access to these digitised artworks on the internet.
Thirdly, the Bridgeman Art Library now represents
some 500 artists for copyright clearance—some copyright
is also handled on behalf of museums where artists have assigned
to them the copyright of their works which are owned by the respective
museum. We are now able to offer them opportunities to promote
their name and to generate funds from reproductions as a result
of new technology.
Digital convergence has enabled us to (i) obtain
greater exposure via the web and email, (ii) enhance sales of
reproductions via marketing on the web and the digital metadata
accompanying each image and rich academic and commercial key wording
and (iii) exploit new markets such as sales of prints, screen
savers for mobile telephones and computers and other joint ventures.
DIFFICULTIES AND
EFFECTS OF
THE NEW
DIGITAL AGE:
Users' expectations—speed
The digital age has raised expectations in terms
of delivery. As a small private self-funding company we have had
to change the way we respond to the demands and change our working
practices to meet today's needs. In the analogue world, clients
were happy to wait for a request to be serviced or would visit
our offices to make their own selections. Now however, they expect
a turnaround of a matter of hours and often work at odd hours
from home or whilst travelling. This puts a strain on our IT resources
and web hosting services which must now be 24/7/365. We often
have to work fast to turn around a digital scan and whilst it
is assumed that users can download on the spot or work with standard
file sizes it is not always the case. The process can never be
fully automated—many require more information prior to use
or need images rescanned for various purposes. Furthermore complications
can occur with different operating systems, monitors, expectations
of colour and tone in an image and its fit to the creative professional.
Users' expectations—profitability
Transition to the digital age has cost the picture
library industry world wide a very considerable investment which
it continues to pay for as technology moves forward and this affects
profitability. This can put pressure on the attainment of high
standards and the ability to develop further. There is a tendency
to think that because digital content can be reached at the touch
of a button that it comes free and whilst this is clearly not
true, it puts pressure on the prices that one can command. It
has also resulted in the closure of a number of the smaller archives
which do not have the financial backing for this kind of investment.
Along with this is the cost of tracking uses
of images in the digital age—even where those uses are legitimate
(unauthorised uses are discussed below). Within a typical library
management system it is important that every image delivered is
followed up to see if it has been reproduced or not—for
various reasons this is more complex than in the analogue world
and the Bridgeman Art Library has had to adapt and introduce new
systems to cope with this.
Users' expectations—specialist knowledge
Along with this there is a tendency to think
that limited expertise is required in sourcing good rich data
for creative projects be they books, newspaper articles, multi-national
advertising campaigns, research papers or gift products. Our experience
shows that this is not so. There is still a need for the creative's
special eye and researcher's in-depth knowledge of subject matter
and the rights associated with it in order to exploit and disseminate
the material accurately and fully. The plethora of data and imagery
now available needs intelligent and creative mining and a thorough
knowledge of copyright law.
2(a) The effects of unauthorised reproduction
and dissemination
TRACKING UNAUTHORISED
USE OF
COPYRIGHTED MATERIAL
The Bridgeman Art Library has had to make considerable
investments to protect the archives against unauthorised use and
dissemination. For example the Bridgeman Art Library annotates
digital images or optical discs with caption tracking information.
The real work, however, comes in following up infringements and
this requires extra resources and is extremely onerous and time
consuming.
In the analogue world, for The Bridgeman Art
Library this meant visiting trade fairs and book shops and browsing
newspapers daily to seek out infringements and check up on usages
of content. This analogue world still exists. In the digital world
it means searching the internet (pages for which no login is required)
for images. The Bridgeman Art Library has been testing a new service
which provides reports of its images used on the internet and
this has proved interesting and useful in assisting us in tracking
where images appear and what is legitimate. However, the development
of this type of technological solution requires additional investment
and must be further developed to keep up with technological advancements.
Arts images are particularly onerous to track
as a number of photographers took advantage of museums before
they prohibited outside photography, hence there may be a number
of copyright owners of the photographs of the same image in circulation
at any one time. The onus is on the Library to prove that the
museum image for which it is claiming payment was sourced from
its archive rather than anyone else's.
As can be seen from the above, the costs of
tracking unauthorised use can be very open ended. However, the
Bridgeman Art Library estimates that it takes approximately two
members of full time staff plus at least Euros 50,000 per annum
for internet tracking services, plus legal fees as and when necessary.
2(b) Protecting against unauthorised reproduction
and/or dissemination
RECORDING DATA
ON COPYRIGHTED
MATERIAL AND
DRM
Encryption software products already exist for
digital images. However, they are not permanent or foolproof and
can be removed by Photoshop and other programmes. Bridgeman therefore
do not use encryption software at present, but we support the
idea of encrypting digital images so that images can be traced,
should a foolproof system be found. The same goes for visible
watermarking. We would welcome a common standard for watermarking
software and permanent image number recognition but the latter
is of no value unless every image producer adheres to the system.
As regards the former, the Bridgeman Art Library and a major French
library are testing a new system which they believe may be sufficiently
foolproof as to warrant investment in the future as a standard.
As regards universal and permanent image identifiers,
the Bridgeman Art Library and fellow libraries within the industry
undertook a series of discussions with the Stationery Office (TSO)
with respect to the Digital Object Identifiers (DOI) universal
imaging standard. However, talks were finally abandoned until
such time as a universal agreement could take place as to how
everyone could participate in this scheme. Many other unsuccessful
attempts have been made in this area in the hope of replicating
the ISBN and ISSN coding system.
Companies licensing material should have good
DRM systems in place so that they can ensure that licences and
images are managed and monitored appropriately.
CODE OF
CONDUCT
The Bridgeman Art Library would welcome the
development of a code of conduct to discourage infringements from
taking place. We think that the industry should take an active
part in the fight against unauthorised use and dissemination of
copyrighted content by adhering to collectively agreed standards
and procedures for fighting piracy.
We believe the image industry (which collaborates
world wide via conferences, workshops, literature and other discussion
groups) should not be overlooked in favour of solutions which
solely focus on the needs of the music and performing arts industries.
The visual arts have always been regarded as the poor relation
of the music and performing arts since the profits they can generate
is considerably less. Visual arts, however, remain a very effective
method to widen access to cultural heritage and to broaden the
knowledge of cultural history. Ideally, the Government should
be able to give added support to the visual arts to compensate
for this.
CENTRAL POINT
OF INFORMATION
ON COPYRIGHT
We believe that there should be a central helpline
for copyright information which is fully publicised to the creative
industries and indeed can provide information, clarification,
education (see point c below) and prevention of IP crime. This
central service should assist users who have inadvertently infringed
copyright to help them negotiate a suitable settlement with the
creator. The Bridgeman Art Library has much experience of this
and seeks funding to develop further a service which would form
an extension of our existing facility. Bridgeman has also had
experience of dealing with infringements, for instance in the
famous test case in New York City Bridgeman vs Corel[25]
and through BAPLA, has a representation on the British Copyright
Council.
An information service would also assist with
the case handling orphan works (see below). This information service
would advise on the appropriate measures to obtain a legitimate
licence for reproduction and copyright.
EDUCATION ABOUT
COPYRIGHT
It is vital to avoid infringements wherever
possible in the first place and the way forward is to exercise
the proper controls when licensing copyrighted materials as well
as educating users about copyright:
(a) Making information available
The Bridgeman Art Library has produced factual
information about copyright and has been educating its clients
in the creative industries to this effect for over 30 years. However,
we still find many people are ill informed about clearing rights
and the reasons why they have to pay. We believe copyright should
be part of the curriculum in schools and at universities as well
as in colleges and associations of appropriate industries—such
as the advertising, film and publishing industries.
The Bridgeman Art Library currently seeks funding
to use their knowledge and experience to enhance data and awareness
and facilitate the further use of our cultural heritage.
(b) Different types of copyrights
The Bridgeman Art Library manages two levels
of copyright—reproduction rights on behalf of museums and
creator's rights on behalf of museums and artists. There is much
confusion about the differences between these rights and we assume
this must be the case for other industries where more than one
type of right applies. We believe there should be more education
about this and the differences made explicit.
(c) Different Territories
Even within the European Union where attempts
at harmonisation of copyright law have taken place the position
as regards various types of copyright is diverse thanks to the
fact that national law still applies. Photography of architecture
is just one example. For example, the electricity installation
in the Eiffel Tower is copyrighted so a copyright fee is payable
when the Eiffel Tower is photographed after dark when the lights
are in use. The Rock and Roll Hall of Fame in the United States
provides another singular example of a copyrighted building of
which not every photographer would be aware. Communicating such
information is important and due to case law, its interpretation
changes from time to time.
3. The extent to which a regulatory environment
should be applied to creative content accessed using non-traditional
media platforms
(a) The digital environment is relatively
new and continually evolving. We believe there is a case for careful
monitoring of cases of piracy and abuse of IP rights.
(b) Closer collaboration with search engine
and internet service providers would be beneficial so that we
work together to fight IP crime.
(c) Regulations governing display, user/reproduction
and attempts to suppress encryption information already exist
and these need to be enforced and communicated to a wider audience.
Making infringement of IP rights a criminal act and imposing serious
damages will be a greater deterrent.
4. Where the balance should lie between the
rights of creators and the expectations of consumers in the context
of the BBC's Creative Archive and other developments.
Creators must continue to have the right of
veto in any reproduction of their works and this is something
reinforced by the WIPO treaty Creative Commons and European laws.
To facilitate the use of art by the creative industries, artists
should be as easy as possible to reach and communicate with, so
their views can be heard. It is of benefit to artists that there
is greater access to (and potential income from) reproductions
of their work but not all artists desire this.
The BBC Creative Archive is an innovative way
of giving back the content which has effectively been paid for
by public funds. As such we feel this is a worth while initiative.
Furthermore if more production of material by educational specialists
means more creativity and a greater number of projects and stimuli
in the film production areas, then this would hopefully create
more of a market for commercial imagery from traditional sources.
However, it is important to remember that not
all organisations are not for profit and organisations such as
Bridgeman who are self-funding and who create wealth for the community
cannot afford to give away rights. Furthermore there is a danger
with initiatives such as Creative Commons and the BBC Creative
Archive that copyright boundaries become blurred. What follows
are assumptions as to what educational use is—or other acceptable
non-commercial use is and these can impinge on what are already
some dangerously grey areas. It is also worth remembering that
traditional educational publishing as exemplified by such UK publishers
as Longmans and Macmillan was always one of the most lucrative
publishing areas, and the potential of the new digital area has
not changed this because the need remains constant.
One final point—the addition of content
from the general public sector whilst very interesting also serves
to blur rights and could incur a minefield of legal problems which
will inevitably bring the lowest common denominator to the quality
of content which currently exists.
In short, with good encryption methods (should
they be found), formalised standards, image recognition, and clearly
defined rights—not to mention better education about copyright,
the greater exposure of material could be a positive move.
15 February 2006
25 Bridgeman Art Library v Corel Corp., 36
F.Supp.2d 191 (S.D.N.Y. 1999): It was a decision by the United
States District Court for the Southern District of New York, which
ruled that exact photographic copies of public domain images could
not be protected by copyright because the copies lack originality.
Even if accurate reproductions require a great deal of skill,
experience and effort, the key element for copyrightability under
US law is that copyrighted material must show sufficient originality.
This judgment would almost certainly have been reversed in an
European Court of Law and we are looking for a similar test case
in the UK or Europe to fight which would strengthen our position. Back
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