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Or, why the copyright status and availability of ancient artifact scans is actually an interesting topic.
Now, this post is going to be, for most people, a lot more dry than what the title might hint at, so in the spirit of not leading anyone to read a long article, that they're not really interested in, I might as well disclose that we will be dealing with the technicalities of intellectual property rights and copyright law here. This is, if you ask me, a fascinating subject that I've spent a number of years getting acquainted with, but honestly, it's not going to be everyones cup of tea.
If you want to read the conclusion first, skip to the section The Past Can't Be Copyrighted.
I promise there will be some interesting bits in here for everyone though, but if you simply curl your toes at the thought of the inner workings of intellectual property law, you might just want to skip this one.
Even for people not normally engaging with this area, and in relation to the growing body of work on the ancient hard-stone vase scans (originally sparked by the completely open, community-driven approach that was championed by Ben van Kerkwyk and his team), it might be slightly more interesting to look into this subject.
Since my original analysis of the first scanned stone vessel, I have been keeping up with the progress of the project from the sidelines, even though I have not been able to spend nearly as much time with the subject, as I could have wished for. The entire area is immensely interesting, and the work put into the project from many different parties is immense, but my primary projects takes up most of my time these days.
In the context of maximising our progress towards understanding of these incredibly important artifacts, one question is actually pertinently important, but has gone largely unasked:
In the case of the physical artifacts themselves, the answer is simple. Whoever has (legally) come into posession of the artifact, through whatever means that might be, owns it. I will not go into the rather complex situation, of how many of these objects got out of their origin areas in the first place, and ended up on the open market. That is a whole other discussion, that I am not qualified to weigh in on.
But in the case of digital representations of these objects, things get a little more complex. As we are dealing with artistic and cultural objects, creative works, these objects could in theory have copyright protection applied to them, as could any other creative work, such as a sculpture, work of craftsmanship or piece of art.
The base term of copyright (that is, how long it is in effect, from the time of creation of the work), varies significantly by jurisdiction. While in some cases, copyright has been extended for several hundred years, it almost goes without saying, that no copyright protection has ever been extended to several thousands of years, which is the timescale these objects have been in existence for.
Of course, the little thought experiment above is actually a moot point, because no work that is already in the public domain can fall under copyright protection. This applies equally to works where copyright has expired, as to those that have never had copyright protection at all.
In fact, all works created before copyright laws came into effect are in the public domain indefinitely and cannot at any later point be subject to copyright. In the US, this cut-off is defined by the Copyright Act of 1790, and in Europe by the 1709 Statute of Anne, which came into effect in 1710.
Any type of work created before those dates are now in the public domain, and no restrictions can be imposed on their dissemination, use, subsequent inclusion in other works or reworking into new works.
If a work is still under copyright protection, it is sometimes still possible to use it in new creative works, and even to obtain copyright on those derivate works yourself. But in such cases, the use must be subject to certain conditions, which can get quite complex.
In practical reality, this is often determined legally on a case-by-case basis, and usually only if disputes occur. Luckily, a great volume of precedent cases exist in international copyright law, which makes mapping out the effective landscape a bit less daunting than it might seem at first glance.
All of the above taken into account, we can begin to understand why the situation of intellectual property rights on scientific data, such as scans of ancient hard-stone vessels, is of relevance.
There's immense amounts of nuance that would need to be added here, to give a complete understanding of how copyright law works, but if you've followed along so far, you've got the essentials covered.
As we have seen, the copyright statuses of original works themselves, whether under copyright protection or in the public domain, are actually relatively straight-forward to wrap your head around. But what even is an original work? What constitutes that?
In the case of the ancient stone vessels, this has great relevance. Seeing as none of these objects fall under copyright protection, but are in the public domain per definition, anyone is freely able to make copies or derivatives on their design, without worrying about the copyright status of the objects themselves. That means you can photograph them, scan them, draw them, or (attempt to) make physical replicas to your hearts desire.
But what happens with those copies or derivative works? Could somebody actually obtain copyright on a work derived from a 5,000 year old vase? Surprisingly, yes! Well, in some cases at least. And as it turns out, those cases naturally come with some substantial (and very much warranted) requirements.
To explore these requirements, we will look at a widely cited precedent: Enter Bridgeman Art Library, Ltd. v. Corel Corp., where Bridgeman Art Library, Ltd. sued Corel Corporation for including reproductions of artworks under public domain on a CD-ROM, and claimed that they owned the copyright on the photos.
In this case, the US District Court ruled that no copyright could be obtained on the reproductions on the artworks, quite clearly expressed in part of section 2. Copyrightability of the ruling:
This principle is exemplified in the Privy Council's oft quoted observation that although: "it takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, ... no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labor or judgment merely in the process of copying cannot confer originality.... There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work."
Or even more concisely in footnote 41:
With respect to derivative works, the originality requirement warrants that there be a distinguishable variation between the work in which copyright is sought and the underlying work.
Looking at the European Union, an even more clear example of the same principle can be found in Article 14 of Directive (EU) 2019/790 of the European Parliament and of the Council, which states that:
Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation
We could go on here, but I think that's enough legal salad for the time being, as it quite clearly illustrates the overarching principle, employed both in the US and Europe: To obtain copyright on works derived from public domain works, substantial, original additions or modifications, of the authors own intellectual creation must be present in the derived work. If this is not the case, the derived work is also accepted into the public domain.
As we can see, this is starting to look very relevant to 3D-scans of ancient artifacts. Since such scans are - per definition - verbatim copies, that in fact strive to be as exact and true to the original as entirely possible, there can be absolutely no room for creative or original alterations, as that would render the data completely irrelevant and useless.
Even though one could argue, that laser-based 3D reconstruction, or any other method such as CT scans are indeed a form of visual reproduction, the above case dealt specifically with the matter of painted artworks and photographic copies. Since reproduction of objects into three-dimensional point-clouds are a relatively new technology, do any precedent in this area exist?
Yes, a very relevant case from 2008, Meshwerks Inc v. Toyota Motor Sales Inc came to similar conclusions. In this particular case, where:
Meshwerks insists that, contrary to the district court's summary judgment determination, its digital models of Toyota cars and trucks are sufficiently original to warrant copyright protection.
The court had to decide whether Meshwerks Inc could obtain copyright on it's scanned models of Toyota cars. The court summary further notes that:
Meshwerks' models, which form the base layers of computerized substitutes for product photographs in advertising, are unadorned, digital wire-frames of Toyota's vehicles.
And referring to the more commonly discussed techniques of photographic reproduction, remarks that such scans are not "independent creations", but admittedly very good copies of those venerable Toyotas:
Applying these principles, evolved in the realm of photography, to the new medium that has come to supplement and even in some ways to supplant it, we think Meshwerks' models are not so much independent creations as (very good) copies of Toyota's vehicles.
Which underpins the courts ultimate conclusion that:
While fully appreciating that digital media present new frontiers for copyrightable creative expression, in this particular case the uncontested facts reveal that Meshwerks' models owe their designs and origins to Toyota and deliberately do not include anything original of their own; accordingly, we hold that Meshwerks' models are not protected by copyright and affirm.
As it stands, it should be sufficiently clear, that also in the realm of digital, high-quality, ultra-precise point-cloud reconstructions, laser- or CT-scans, no copyright can be asserted on the produced 3D models, if the source materials of those scans are already in the public domain.
Effectively, this means that any and all reproductions of ancient objects, artifacts, buildings, museum pieces, and so on ad infinitum, fall entirely outside the scope of copyright protection.
Original, creative works derived from the scan data, such as analysis, figures, illustrations, and educational material can of course still be subject to copyright protection, and will in most cases.
But the raw scan data, related point-clouds, meshes and other representative forms are, per definition, and by their very existence, completely void from copyright protection.
I can imagine this conclusion might come as a surprise to quite a few people, but hopefully this post has shed some light on the legal mechanisms that underpins the state of affairs.
Where does that leave us? Is this situation a welcome one, or will it hamper progress in understanding these artifacts?
While the protection of intellectual property rights has certain important roles to play in our current society, the reasonable limitations of such legislation is just as important as the protections themselves. I believe the absence of copyrightability on scan data, which is historically and culturally significant to all of us, to be a very positive situation.
In fact, I think it is the only constructive means of operating in this field. As Ben van Kerkwyk already demonstrated, by sharing the raw data openly, a flood of awareness and action was opened. Everything from detailed analysis, to constructive criticism, and even debate on the controversiality of the objects became possible. That is what we want, if we are ever going to shed any light on what these objects actually are.
I know that immense amounts of work has been going on, behind the scenes, to collect much more data on these objects, and to rigourously and reproducably categorise, analyse and quantify it.
I have personally been lucky enough to see some of the work as it has been unfolding, and can attest to the incredible amount of attention to detail that has been expended on it. In that context, I would expect to see some of the initial results of that work in the very near future, which I am really looking forward to.
It has happened way too often in the past (and even present), that data was simply buried or "forgotten" because it didn't fit a specific narrative, and if that was to happen again, it would be a tragedy, and severly hamper our ability to inch ever closer to the truth.
It is my great hope that anyone working in this field will follow the approach that has already proved constructive and viable, and that is to openly provide the important base data for anyone that is interested in it. In fact, that is the only way this endeavour can take on the necessary credibility and reproducibility to truly gain progress towards undestanding the enigmas, that these fascinating objects hint at us.
The post image for this article is used under permission of the original author, and does not fall under CC BY-NC-SA 4.0 License