Why the Met does not open any real doors
Last Friday, May 16th, the Metropolitan Museum of Art (the Met) announced the release of more than 400,000 high-resolution digital images of public domain works to be available as free downloads on their website (see the works marked with OASC). These include famous works from Rembrandt, Dürer, Manet and El Greco.
The museum makes this content available at a resolution of 150 dpi, which is not the highest resolution we have seen in the sector (in comparison, the Rijksmuseum makes its content available at 300 dpi), but still very respectable.
In making the announcement, Thomas P. Campbell, Director and CEO of The Metropolitan Museum of Art, said:
“Through this new, open-access policy, we join a growing number of museums that provide free access to images of art in the public domain. I am delighted that digital technology can open the doors to this trove of images from our encyclopedic collection.”
The release of the high-res images falls under the Met’s initiative called Open Access for Scholarly Content (OASC):
[…] (OASC) – provides access to images of art in its collection that the Museum believes to be in the public domain and free of other known restrictions; these images are now available for scholarly use in any media.
In other words, the Met provides access to images that the museum believes to be in the public domain and free of other known restrictions. However, the museum restricts the use of the public domain works to non-commercial use only, according to their Terms and Conditions:
“Images of Works of Art that are in the Public Domain. Images of works of art that the Museum believes to be in the public domain which are identified as on the Site may be downloaded for limited non-commercial, educational, and personal use only, or for fair use as defined in the United States copyright laws. In addition, authorized non-commercial uses for such images shall include scholarly publications in any media. […]”
Unfortunately we cannot take one of the gorgeous images made available as it could be considered commercial use.
Not opening doors
The Met is relying on contract law to constrict the use of their digitised material, which gives the Met the right to ask users to commit to conditions for using the material. This is bad practice and is only a thin veil of protection, since these terms and conditions do not perpetuate to third parties. If I would use an image of this collection and put it on my non-commercial blog, then that does not restrict the commercial use of that image by visitors of my blog. I can imagine that Wikipedians will easily spot this flaw and find simple ways to make this material truly openly available.
We also have to keep in mind that fair use is only applicable in those countries that define fair use in their copyright laws. Any use application of the available content that is considered fair use in the US can be considered as an infringement in other jurisdictions. Relying on fair use for distributing cultural heritage is a bad idea.
The situation reminds us of the Rijksmuseum in the Netherlands that published public domain works in 2012 and initially also limited the possibility to download the images for commercial purposes. They removed this limitation as they saw that it did not hurt their sales and it was hurting their mission to widely distribute cultural heritage. The Rijksmuseum is a shining example of an institution that respects the public domain.
The Met should follow this example and remove the restriction of their public domain works. Public domain material should be made accessible for all to reuse by museums. Until that moment, the Met is definitely not opening any real doors, nor joining the growing number of museums that provide free access to images in the public domain.
Nikki Timmermans and Maarten Zeinstra