Who Owns the Digital?
The issue of digital copyright is one that has yet to be negotiated fully by the state as can be seen by the recent publication of ‘The Copyright and Related Rights (Miscilanious Provisions) Bill 2016’ (O’Dell 2016). Despite this being drafted in direct response to the Copyright Review Committee’s ‘Modernising Copyright’ document (2013), it has failed to consider the broader implications of digitisation and intellectual property in the current technological climate. It has particularly fallen short in areas relating to 3D recording of cultural heritage and archaeological monuments. In my own work, I have to date, relied upon a general understanding of photographic copyright when producing photogrammetric models and granted/assumed rights of access.
A considered review of these areas in the early stages of my projects has streamlined the process of digitisation and meant that dissemination of data was easily achieved from the outset. It has not however, clarified the issue of copyright in terms of the 3D data produced. This is largely due to the uncertainty surrounding originality of the works being produced and state ownership rights over the monuments themselves. Weinberg’s (2016, 9-10) discussion on Expressive and Representational scans has provided some tentative guidance in my own digitization process however.
As models of heritage monuments/artefacts generated from laser scanning or photogrammetry are created to replicate the monument as baseline data for analysis and conservation in perpetuity, they are by definition representational models. Therefore, the degree to which I can express copyright over the resulting models may unfortunately be no more than the degree with which I can claim copyright over a piece of text that I have photocopied from another original, fixed work. A potential gray area may however exist when creating photogrammetric models of heritage monuments that is not observed in scanned data. As photogrammetry uses overlapping sequences of photographs, I may retain copyright over those digital mediums (Figure 1) and potentially the resulting 3D model produced. However, it is still by all accounts a representational model of a monument that belongs to the state and does not constitute an original work in its own right.
In the past I have used photogrammetry to record commemorative stone monuments, largely in the public domain where right of access can be assumed. I have never encountered any issues in capturing or disseminating the results which I had until very recently (with thanks to AFF622), presumed was due to the following reasons:
- Photogrammetry relies on the capture of overlapping photographs of a feature to produce a 3D model and is therefore likely protected under the Freedom of Panorama act.
- There is no copyright on archaeological monuments.
- I have contacted relevant stakeholders (NMS, OPW, heritage officer, city/county council or archaeologist, private landowner etc) to discuss works.
- Right of access has been granted or could be assumed.
- I had adopted an open data ethos from the outset ensuring that all collated data would be freely available for research and would not be of financial gain.
- All stakeholders have been fully acknowledged.
Despite Weinberg’s discussion on representational data having clarified some queries in terms of copyright, the issue remains to be tested legally and until it is, I am doubtful of any further (or initial) clarification under the forthcoming ‘Copyright and Related Rights (Miscellaneous Provisions) Bill 2016’. For now it would appear that instead of asking “Who Owns the Digital”, a more constructive question may be “Who owns the Original”. Any other issues may better be solved under contract.
 those designed explicitly to interpret the scanned object differently, and to imbue the resulting file with expressive purpose that varies in some way from the original”
 those designed primarily to transfer a physical thing into a digital medium
 Photographs of monuments and landscapes fall under the Freedom of Panorama