I saw this tweet from a colleague, Maarten Horn, yesterday. I began thinking of replying and then realised I had a lot more to say than I could fit into a few tweets.

Read the conversation on Twitter, here.

What follows refers specifically to the granting of rights to look at, describe, draw, photograph and reproduce images of ancient and archival material, drawing on my experiences in Egyptology. I realise much of what I have to say here would not apply to intellectual property of many other kinds.

Over the years I’ve come across lots of situations in which rights are asserted or assumed, and rules or even laws assumed and apparently broken. As an author I have requested and been granted permission to use material, and I have also acted on behalf of a publisher and institution granting permission for the reproduction of images of ancient and archival material in its possession (The EES).

In general, the situation – the rules and how they are applied (if they even exist) – is very unclear, and there’s rather a lot to consider, including:

• The difference between what is law, and what is simply a commonly accepted standard of practice or a rule particular to an individual or institution.
• The way such laws / standards / rules might differ from one context to the next or in different countries etc.
• The consequences. Breaking the law is very serious, obviously; falling short of standards or flaunting the rules of an organisation with which you may wish to collaborate again may be less serious but it is discourteous, and as such may harm your working relationships.
• The rationale behind rules. I have encountered situations in which rights have been asserted or rules imposed when there was no sound basis for it, preventing material from being used which in the end was in no-one’s interests, and by extension was detrimental to scholarship (it seemed to me).
• Who owns the rights? The author? The artist? The photographer? The publisher? The individual or institution that owns the thing being described, drawn or photographed? All of them??

Before going into this in any more detail, how should I reply to Maarten?

First of all it seems to me at best discourteous if nobody was asked for permission in this case (or perhaps just clumsy if the author is inexperienced and really has no idea how such things work, but in that case the publisher could have advised them). The author using the images that appeared in Maarten’s work (hereafter ‘author X’) could have tracked Maarten down online or contacted the publisher to ask. Despite this, it seems to me possible that no rules were broken, especially if author X had secured permission from whoever owns the objects as Dr Will Carruthers has already suggested:

In that case author X (or his publisher) might well have felt no further permissions were required. Still, whatever the rules, it’s just good manners to ask and such things do matter, particularly in a small field like Egyptology where everyone knows everyone else, and we all have to work together.

Another consideration would be what rights were asserted by the rights owner and how this was expressed in Maarten’s publication. Presumably it was something like ‘image courtesy of <<name of institution>>, all rights reserved’. In that case it would be unambiguous: permission would have to be sought. There are other kinds of rights however such as ‘creative commons’ which allow rights holders to “pick and choose which rights they want to control and which they want to grant to others.”¹ Author X may have known that the rights holder in this case universally grants permission for its material to be used in certain contexts.

When I worked for the EES I was, for a while, in charge of dealing with requests for permission to reproduce images in the Society’s copyright, generally either photographs from the archive or images of papyri in the Oxyrhynchus collection. I can’t remember ever refusing permission. Usually, the only question would be whether the image was to be used for a scholarly i.e. non-commercial venture – most commonly a scholarly article – or a commercial project such as a book or television programme. In the latter case there would be a fee to pay, but for scholarly use permission would be granted free of charge. The fees we did receive were a nice little source of pocket money but not really significant. It seemed to me that the bigger picture for the Society was that that we had a responsibility to make our material available for scholarly / educational purposes, not to discourage or prevent it from being used by charging fees scholars could not afford, and that we would benefit from the heightened awareness of the Society that we hoped circulation of our material would bring. Permission was, of course, only granted on condition that the Society be acknowledged (‘Courtesy of the Egypt Exploration Society’).

Had I ever come across an instance in which a scholar made use of one of our images in an article without having asked for permission I would probably have been a little bit annoyed, but provided they acknowledged the Society’s copyright I would probably have concluded that it wasn’t worth doing anything about it, and that in fact, the author had perhaps done the right thing in saving themselves, and me, the time as I would only have granted permission anyway.

In 2007 thousands of images in the Society’s archives were digitised thanks to a generous donation. This was a great boon for us – it made browsing and searching the collection, and providing high quality images to researchers, much easier. We were quite guarded about circulating them to begin with however: what if people started using them without our permission? Well, after a while we realised that people probably weren’t going to do that, that they would generally follow our rules and acknowledge the Society’s ownership of the images, or even pay a fee if required. In recent years the Society has made the majority of these images available for free online (here) – a fantastic initiative which no doubt has been a great boon for scholars, saved the Society’s staff a great deal of time in tracking images down and sending them off, and helped raise awareness of its history and work.

Time and effort

One of the advantages of creative commons licences is that they provide for exactly this kind of situation i.e. for material to be used in certain ways without the need for the time-consuming process of permission being requested and granted. The reality is that many institutions granting permissions are understaffed and cannot always deal with such requests as quickly as authors etc. might like. In a worst-case scenario this could prevent material from being included in published work which is in no-one’s interests. At the EES I always felt that the important thing was that the material be used. As I’ve already said, I can’t recall coming across a situation in which there was any reason not to grant permission, the only question was whether or not we should charge a fee, and I would never have wanted to deter anyone from using an EES image because it was too expensive – I would much rather have offered a discount or waived the fee entirely and had our image be the one chosen for the documentary or the front cover of the book, than stick doggedly to the rules and end up with no fees and someone else’s image used instead. In reality such situations hardly ever arose – commercial publishers and production companies were generally happy to pay our fees – but I appreciate that other institutions might take a different approach if reproduction fees are more significant to them than they were to the EES when I was there (2001-16 incidentally).

In practical terms…

If anyone had really wanted to use one of our images in such a way that we would have refused permission, or without paying a fee when we would have requested one, then there would have been very little we could have done to stop it.

In practice, in situations such as the ones discussed here, if someone had wanted to break the EES’ rules, there wouldn’t have been much we could have done about it. It might be impolite, and might spoil what would otherwise be a good working relationship, but otherwise there’s little that can really be done.

I learned this in my first couple of years there in fact, albeit in a slightly different circumstances. The Society was – and still is – a publisher of books and periodicals (a journal and a magazine). As far as the Society was concerned its excavation and other scientific reports were in its copyright, and always had been. On one or two occasions we found that old site reports had been reproduced without our permission for sale at a profit. We would have wanted to assert the sole right to reproduce these volumes, to help raise awareness of the Society and its work and to generate revenue. On one occasion I contacted a publisher in America to draw their attention to our claim and was simply told that according to US law the copyright had expired a certain number of years after the death of the author, and that we therefore had no rights. I knew of laws like this of course but hadn’t thought that different ones might apply in the US, and in any case felt he was missing the point that rights lay not with the author but the EES. I had to admit, however, that I was no lawyer and, moreover, even if I had felt we had a case would the Society have wanted to pursue it? Of course not. We wouldn’t have had the resources, and there was nothing stopping us from republishing the volumes ourselves (except that we didn’t really have the resources!). Eventually I would have to concede that if anything these other publishers were providing a service that the Society itself could not in making long out-of-print volumes available again. These days I am a huge fan of initiatives such as Google Books and archive.org which have made thousands of volumes – including many older EES reports (e.g. this one) – freely available online.

When rights are wrong(ly asserted)

Considering that:

• In my experience at least there is rarely any reason not to grant permission;
• That frameworks exist to allow material to be reproduced without permission being actively sought / granted (e.g. creative commons licenses);
• That dealing with permissions requests can be very time consuming, sometimes to the extent that institutions are unable to handle the workload;
• That in many instances no-one really loses out if material is re-used without permission;
• That there is something to be lost if permission is not or cannot be granted i.e. because it’s in everyone’s interests that the material can be circulated – scholarship in Egyptology depends on knowledge – descriptions, drawings photos etc – being circulated as comprehensively and widely as possible. An article about an object or site suffers if it does not include a good image(s) of that object or site;

…I have often found myself wondering if rights have been asserted when it would be better all round if they were not.

A few case studies that raise similar issues:

Up until recently it was against the Ministry of Antiquities’ rules to take photographs in any ancient tomb or archaeological museum in Egypt. I suspect the reasoning, initially, was that the Ministry would be able to generate much-needed revenue though the purchase of postcards and books at its sites, and through reproduction fees, and this may have worked. However, it must also have meant that many tourists were left disappointed that they were unable to take photos of the amazing things they were seeing – or simply paid the guardian on duty a little tip and went ahead anyway. And it meant that scholars like me fell back, for their lectures etc., on very old photos of their own or better ones scanned from books, or simply didn’t have photos to show. In recent years the rules have been almost completely relaxed, presumably because the Ministry concluded that the benefits of allowing photographs to be taken and posted to social media outweighed the potential gift shop sales and photography fees. And perhaps because it had become clear that policing a no-photo policy in an age when everyone carries a camera with them and expects to be able to take photos at all times had become unworkable. In this case the assertion of rights and granting of permission only by request probably proved unworkable and counter-productive. I congratulate them on the new policy!

While requesting images to be included in a book of mine a few years ago the publisher and I contacted several colleagues to ask for permission to reproduce their images. Two cases stood out:

In the first, I asked a colleague for permission to use a photo of some fragments discovered during an excavation they had directed. The image had been published in a specialist magazine. I mentioned the fragments in my text and felt it was important that my readers could see what had been found. My colleague granted permission but only after hesitating, explaining that academics are sometimes a little ‘paranoid’ about such things. I was puzzled by this: the image had already been published, and my text was uncontentious. What could anyone stand to lose from the image being published again? If anything, I hoped that my colleague and their excavations would benefit from my helping to circulate information about the material found to a wider audience. I was of course pleased and relieved to receive permission, and also grateful for the explanation, not least as the notion of paranoia seemed an admission that the hesitation was not entirely rational, which helped explained why I found the hesitation so puzzling.

In the second instance, I asked the director of a project I had worked for myself for permission to reproduce a photo I had taken of a tomb wall. As far as the publisher was concerned, as the photo was mine there should be no need to ask for permission but I felt it would be courteous to ask, and that not doing so would risk spoiling relations with a good friend and colleague. In this case the answer was (paraphrasing) ‘yes, but please don’t use your photo because it’s not very good. Here’s a better one taken by the team photographer.’ Moreover, my colleague asked to read my text to make sure I wasn’t saying anything inappropriate. Again, I felt this was not something I ought to feel obliged to do but, not wanting to spoil a good relationship, I agreed. Fortunately, my colleague agreed that there was no problem and that we could go ahead. The explanation was that in the past, other members of the same project had claimed to have discovered the tomb themselves. I was somewhat alarmed that anyone would do this – this particular tomb wasn’t really discovered by anyone having been visible since antiquity and appeared frequently in literature from the time of the earliest European travellers onwards, so any such claims would, transparently, have been ludicrous – and even more so that my colleague would think I would make such a claim…

In both cases it seemed to me that my colleagues were not being entirely reasonable. In these cases permission was granted eventually, but it makes me wonder how often that’s not the case.

And indeed, there have been other occasions when I have failed to secure permission. In one case, a museum holding an object I wanted to illustrate simply failed to reply to my messages. In this instance I assume the museum in question simply didn’t have the resources to reply deal with such enquiries. Fortunately in this case I was able to find an alternative image and secure permission via other means.

On another occasion I was prevented from even mentioning the existence of a particular monument on the basis that it hadn’t yet been fully published. I had thought there would be no issue with this as I had been careful not to include any information that hadn’t already been published but this briefly got me into a little bit of trouble. In this case, no laws were broken and the denial of permission was, to my mind, unreasonable and in fact counter-productive, and I felt the book, its readers and even the institution denying permission(!) were worse off as a result. But the maintenance of good working relations with my colleagues took precedence and were, thankfully, restored in short order.

Conclusion

Over the years I’ve accumulated quite a bit of experience of permissions requests in various different situations. It seems to me that there’s a lack of clarity and consistency in what the rules should be, and how they should be applied. It also seems to me that there is a tendency on the part of some individuals and institutions to assert rights or require permissions when perhaps there is no need, or even to deny permissions when there is no good reason to do so. I’m no lawyer but it seems to me that the principles of intellectual property law are there to protect creatives and other individuals / institutions who invest in works created – their property – to afford them a degree of control over how it is used and to allow them to generate the income they need to carry on their work. I have encountered situations in which creative work has been used without permission or acknowledgement, denying the creator the opportunity to control how their work is used, and the credit they deserve. Clearly this is wrong. But I have also encountered situations in which permissions processes have been imposed unnecessarily and counter-productively, and, worse, others in which permissions has not been granted without good reason, to the detriment of all concerned. It’s just a personal view but I think it would be very helpful if there were greater clarity as to what standards or practice or rules we should all aim to uphold, and probably greater understanding and application of creative commons licensing.

Thoughts?

 

Notes

1. See https://en.wikipedia.org/wiki/Creative_Commons. Accessed 10 January  2023.