We need an Ombudsman for the Public Domain

Video: Kennisland CC-BY

On 4 July, Kennisland and the Rijksmuseum organised an evening about the role of cultural heritage institutions as guardians of the public domain. Law scholar James Boyle made a plea for a strong public domain, to make the commons accessible for everyone who is interested. We need cultural prosperity again, he states. This is difficult in the current outdated and inflexible copyright system. Rather than passive consumption of culture, we should work towards what Lawrence Lessig has called: “read-write access to culture”.

Access to cultural heritage
Cultural heritage institutions historically take up three roles: preservation, curation and access. With digital technology, all three change, however the third (access) most drastically. 

“The main premise for cultural institutions is this: the moral warrant for access to cultural heritage is having a pulse. That’s what makes you deserve your cultural heritage. Sometimes institutions have to compromise, but the default is that if you’re human, come and experience the cultural heritage that is out there. This is your culture as much as it is ours.”

It is ironic that right when we have the technology to make cultural heritage available, we choose a) to make it unavailable, and b) for no good reason. We should be furious about this. “Is it worse when something is malicious, or when it is stupid?” Boyle asks. The policy role of cultural institutions is to protect cultural heritage from getting locked away by the effects of copyright law. 

“Poorly thought out legal changes have wreaked more havoc on our relationship to our cultural heritage than many of the intentionally destructive acts of the past – like book burning”. 

Be louder about your good work

Boyle states that cultural institutions are doing a lot of good work, but encourages them to be louder about the good work they are doing.

“If institutions like the Rijksmuseum or the British Library wanted to clear works and find out whether or not they can actually get permission from the copyright holders, it would take more hours than there are in the copyright term. This is quite a powerful statement. Cultural heritage institutions have to start thinking about being clear and forceful, because the facts and the moral rectitude are on their side. And that is a good place to be.”

Boyle’s advice to cultural heritage institutions is to question the centralised, hierarchical vision they have sometimes taken on their own role. He sets out two theories.

The first one he humorously calls the France Grass Theory of Culture. France is full of patches of beautifully mowed public grass. But no one is allowed to sit on them. The grass is public, and too good to be used. This theory says that there is a public domain of cultural heritage, and you can look at it from a distance, as long as you treat it in the way you are told to. But the moment someone tries to do something with it, we clamp down because they are clearly misusing access to your cultural heritage.

The second and less extreme version of this is the theory that the state and only the state can be trusted to digitise the public domain, and once digitised, give access to it but only under limitations.

Both theories do not go far enough, and that is because, according to Boyle, we are scared. We experience “cultural agoraphobia”: fear of openness in access to culture. Boyle argues that at the beginning of the world wide web, no one believed a decentralised Net could work. There was fear of having porn on there, spam, massive infringement of copyright, that there would be a lot of useless stuff on the web written by 'idiots'. All of these claims are true. But a lot of other things are also true: We use the Internet every day to be provided with useful information. Boyle reasons that if you can be wrong about this, what else are you wrong about? 

“We are brilliant at understanding the dangers of open systems. We have a downside vision. We see perfectly and accurately all of the possible dangers and we are systematically cognitively biased against their benefits.”

Cultural Reformation

So what do we need? According to Boyle we need a second reformation, a cultural reformation. The 16th century Protestant reformation was about whether or not a priestly intermediary between the citizen and the sacred text was necessary. The outcome back then was what we would call an open source approach today: People did see the dangers of openness, but it was decided that the citizen’s relationship with the sacred text was of the citizen. That is precisely how we need to approach cultural heritage. This requires that people have proper access to the commons, not only in analogue form, but also digital, with free, online access to public domain texts and images with as few restrictions as possible.

In order to safeguard a thriving public domain, we need not to get the dangers we see in open system get the upper hand. As Boyle puts it, don’t let the horror of what the nazi or the pornographer can do to your material stop you from enabling the smart school kid or the amateur who loves the material. In the efforts to work towards a stronger public domain will lie great successes, and in those successes perhaps we can experience cultural prosperity again.

Click here to watch the second part of the event, with Marjan Hammersma, director-general at the Ministry of Culture and Media, and the Q&A session with Boyle and Hammersma. 

Tessa Askamp