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Listen to the webinar

You can listen to the full webinar recording through this link.

About

This webinar was organised by Europeana, Open GLAM and the Special Interest Group on Intellectual Property at the Museum Computer Network. It took place on 30th of April 2020. 

Speakers

  • Aleksandra Strzelichowska, Senior Online Marketing Specialist at Europeana Foundation 
  • Mikka Gee Conway, General Counsel, the Getty Museum
  • Anne Young, Director of Legal Affairs and Intellectual Property at Newfields

Resources

You can see an edited version of the conversation, organised in a set of questions, below. This information was originally posted in the OpenGlam Medium by Scann.

What are the copyright policies that guide the usage of content for your social media accounts?

Aleksandra: For Europeana the situation is special because we give access to content from different institutions across Europe. Each country in Europe has different copyright laws and the heritage was digitized in different ways, but luckily the records on our site have licensing information, so we know exactly what can be used and how. For social media platforms, we have a four page document and according to this document, what we share on social media is content that is freely re-usable, which means public domain, CC0, CC BY and CC BY SA. Therefore content which is marked with a non-commercial license cannot be shared on social platforms. For content with a ‘no reuse statement’, we seek individual permission. But because it is hard to manage individual permissions, we try to stick to the open content.

Mikka: The Getty has a pretty robust social media program, that includes the Getty Museum, the Conservation Institute, the Research Institute and the Getty Foundation. Everyone has their own different social media account, and some of the programs have multiple ones on different platforms. It’s definitely a designated job function: only certain staff are allowed to manage those social media accounts. Our social media policy is really just focused on keeping personal and professional activities separate, on one hand, and then just guidelines about content, tone, and following copyright. On our social media we are not just posting content from the collections, but when we are sharing collections’ material, if they are in copyright, we do it only if we have a license, or if we have a good fair use case. Otherwise it’s a lot of public domain material. And also as a private foundation, content-wise, we have to steer clear of certain political and lobbying activities.

Anne: A lot of that for Newfields is very similar in our efforts. Any of our posting to social media it’s broadly governed by our intellectual property and social media policies. We only have certain staff within our marketing and communications team who are authorized to develop the content for our different social media channels, and we have guidelines as far as creating any new accounts and what that looks like for the branding and the Newfields voice. Of course this includes following all copyright laws and licensing in many occasions, or looking into where we already have broad, non-exclusive licensing agreements with different artists and works in our collection. We also work on seeing where we do have the opportunity to do a fair use utilization. Otherwise we are looking at maintaining our relationships, either with donors, or artists, or their estates, and often looking and seeking permissions. That can make a difference as well. When we look at that we ask ourselves: are these just regular posts at a social media account, or is it a post that it’s gonna be a paid post and promotional that is going to get more use than regular postings?

How do you operate these principles in practice, for example giving attribution on social media?

Anne: Attribution can take up valuable character space, but if it’s a post where we are going to rely somewhat on fair use, including that attribution is another way that helps strengthen our case. With my team we are pushing on what are shortened captions and credit lines that we can include, and where we are pulling things out, like dates or materials, that can make credit lines longer. Some credit lines can be like three miles long, so you need to work with them to know where there can be the main tags and then the subsequent credit lines follow. Twitter tends to be the hardest in that; it’s a lot of working with reply tweets, and creating chain responses. Our social media and marketing team have become very good at including that information. If we are working with a license having that information is a requirement. If we are going for fair use, the credit line helps support that. We also have some cases where we are a little more risk-averse and we make sure that we seek a license and have approval before posting, for example if we want to show the “behind the scenes” of an installation of some artworks, where we need to be respectful of the desires of the artists or their estates.

Aleksandra: For us it’s similar. Twitter can be quite tricky. We usually either post images where we just try to give as much attribution as possible, and then a link. If it’s an editorial piece that is being published, then we make sure that within the body of this editorial we have all the credit information included, and then we just use a short link to link people to it. What I wanted to share and that I find interesting is Instagram. Due to this link issue, we were quite late to the game actually with Instagram. The content that we share is not ours; we only give access to the content from other institutions across Europe, so we were very careful around only sharing public domain, CC0 content, and then tagging the institutions that were very active on Instagram. Now, with Instagram, we have this linking bio as a landing page, so when you click there, you can actually find back the post that we posted on Instagram, and then just scroll down and from there you can click through and find every record page. This was our way to be active on Instagram and to provide the information according to our standards.

Mikka: I would echo a lot of what Anne said, but it is a challenge because space is limited. I’m comfortable if the information is one click-away. Most of our posts highlight something that we are doing; it’s either a show, a press release, an object page. We are trying to push traffic to come back to our website, where all the information will be. If it’s public domain it doesn’t matter; if there is a license, that might have more requirements, including attribution, we’ll try to work some version of that into the post itself. I think we finally moved away from wanting to actually embed the image in the photo itself.

Annelisa Stephen (Assistant Director for Digital Content Strategy, Getty Trust): It’s interesting hearing people using Twitter threads and putting captions in an additional tweet. Traditionally in the past, as Mikka said, we extended the image canvas and we added the required lender or credit line, but that it’s a bit awkward, visually, and it also alters the image slightly, so it’s not a great solution. We came up with a new solution when we redesigned some pages on our website: to avoid captions, we have the metadata embedded in the image and it’s one click away from the actual full caption. We haven’t yet implemented that fully on social.

What is the workflow for social media in your institution? Do you review social media posts that include artworks before they go live (Question from the public).

Anne: Not necessarily every single one. We’ve done a lot of recurrent training with our marketing and communications team, and we have put a lot of work into developing our social media policy. We have a pretty good amount of trust in our team, in what they are drafting and putting out. Usually if they are embarking on a broad new campaign that really deviates in some way from anything that we’ve done in the past, they will usually reach out just to double check that it’s in accordance with standard procedure. A lot of that tends to be around a campaign for an exhibition, or we are highlighting things around our collections, or certain installation or certain programming, so we have already been part of some early discussions and plans; for an exhibition we already have a pre-approved set of imagery that we can utilize and that was done months before.

Mikka: Only designated people are allowed to manage those accounts and I trust them. There is ongoing training, and I feel comfortable that people generally know the rules. If there are questions they do bring them to me, but I’m comfortable that we have good controls and systems in place around what gets posted.

Aleksandra: From the point of view of the person posting, I have freedom to decide. I don’t check the guidelines on a daily basis, because otherwise it would be just impossible. Our team is responsible for creating tutorials and blog posts and we always try to have an image that is open, that we know that we can pick up on social media without major searching. This is something that helps a lot. Sometimes there are pieces of content that change their license, and I’m not aware of the change, so I have to go back and look because there’s something wrong there. In general, not on a daily basis, but if there’s something wrong we have to keep informed and control our more tricky cases.

What considerations do you have before posting content to social media in relation with its terms of use?

Mikka: You should read them. Read the terms of use. They are different for every platform, but generally speaking, the platform will assume that the poster owns the copyright or controls what they are posting. The platform won’t claim ownership of it, but it will say that by posting, you are giving a sort of guarantee that you have permission to post it, that you control the content, and all of the necessary rights, not just copyright, but also rights of privacy and publicity, or rights of trademark, music if it’s a video. Basically you are taking full responsibility for having all of that and being able to give the platform that license to display it, and share it, and do whatever they are going to do with it within the functionality of the platform. For us, that’s a very broad license, and that means that you can’t necessarily post a lot of things that you don’t have permission for, so it’s very restrictive.

How do the Creative Commons licenses and the Terms of Service interact? For example, if you have a content marked as CC NC, can you share it on social media? (Question from the public)

Mikka: To the extent that the platform is commercial, and by the terms of service says you are giving the platform the license to use it for their own marketing purposes, or commercial purposes, that wouldn’t be within the spirit of the NC license. When you use something with a CC BY NC license, the requirements are basically that you give attribution, which is possible on platforms, but also you only use it for non commercial purposes. You can debate the extent to which is commercial, what’s commercial, because the license doesn’t define it, but there’s room for interpretation. The conservative approach would be that hosting in a social media site, if not itself a commercial act, would be granting a license to others to use it for commercial purposes, and that would not be consistent with the license.

Aleksandra: An example of this kind of commercial use would be, for example, you put the post, and the commercial platform is using the reaction of their users to build their profiles and they might be sold. You might be doing it in goodwill, but still in the end, there’s someone making profit, and according to the license, you have no right to do it.

Sarah Pearson (Legal Counsel, Creative Commons): I can jump in. Several years ago, Creative Commons spent quite a bit of time doing analysis of terms of service on different platforms on this issue. I read many different, more terms of services that I’d like to admit. We spoke with the legal counsel at Twitter and other platforms, but I will note that we never spoke to an in-house counsel that had that very literal and strict interpretation of the Terms of Service. Almost every set of terms requires that you either own the copyright or have the right to use it, and we found that generally speaking, no one came out saying that you wouldn’t be able to upload CC licensed content that you don’t own.

The Non Commercial interpretation is interesting to me as well. I think that to the extent that there is any issue, it’s an issue for the platform. If anyone is commercializing there it is the platform, and I think it would be really hard to find that the uploader is somehow on the hook for the platform’s commercialization of that content. It’s a really literal interpretation of the terms of service and it seems that it would be a very tough argument to make. From Creative Commons perspective, we tend to think about it as, you either own the copyright, or you have the right to use it under a CC license. CC licenses don’t allow sub-licensing, so it’s not that the uploader is granting a license to the platform, the platform is just arguably using it under the licenses, and to the extent that it’s a problem with Non Commercial, I think it would be a problem for the platform itself. But I also understand that you could interpret that the uploader will be on the hook for it. But I’ve never heard that argument being made by the platform.

What directives have you given to your marketing team around what can and what cannot be used in social media? At my institution there’s no way for marketing and communications to know which objects have copyright restrictions, and they also don’t have access to the image assets. How do you deal with this obstacle, especially if you don’t have a DAMS? (Question from the public)

Mikka: We have a DAMS that does have rights metadata in it, and a certain amount of rights metadata has to be associated with the object before it can be put into the DAMS. Annelisa can explain this further. Everyone has access to it, when they need it. I don’t know for sure that all of the content that we post to our website comes out of the DAMS, some of it might come from other places, but in theory that’s the goal. And I give trainings on how to read the information from the DAMS and how to figure out what’s appropriate. People posting to social media need to have information on rights status.

Annelisa: On the workflow side, on the social media side, we’re really lucky to have this really well implemented DAMS, that has support from the IT side, but also even more importantly, support from a Rights and Reproduction person. That’s particularly true with the Getty Museum Rights Manager, Cherie Chen, who is extremely detail-oriented and puts in extensive information about everything: if it’s restricted, if it’s restricted from download, and she tries to unlock the asset on a one-on-one basis. There are also different fields for rights, like Mikka says, and she trains us to read that and understand it. For exhibitions we also have a folder system in the DAMS. There’s a folder with all the approved images for posts and website, and there’s a subfolder with a subset of these images that’s also approved for social.

Often images are approved for the web or for distribution to the media, but it’s not approved for our own social platforms, which is frustrating. Communications and the Rights Manager work a ton together to create that folder, which is completely indispensable for us, so we can know which things are approved. We also get involved in drawing requests when rights are going to be requested. There are all requested as a package. Some media that we think will work well on social media, can often be different from things like the ones that the media relations team will prefer to distribute. There’s a lot of people and effort involved in making that system work, and there is always every possible weird restriction under the sun in some contracts in terms of what you are allowed or not to do. You have to strike a balance between completeness in the record and what actually someone has time to do on the rights side to keep things going.

Anne: We also have a DAMS where we have rights metadata. My department works on adding that information, and gives trainings so the rest of the staff can understand how to interpret that and read it. Our marketing & communications team has access to the DAMS, so they can get to what they need. Prior to implementing that, it was a lot more hands-on. There is a lot of work that goes into that rights research and management and sharing that information, but you also need to acknowledge that there can be other things aside from just copyright that we need to consider in any given image. Perhaps when the work was acquired, are there contractual restrictions to a use that need to be considered, or there could be issues of privacy and publicity that might come up that we also need to layer in the back. That is harder to communicate and have all that input in the DAMS. With special exhibitions we avoid inputting that additional content into our DAMS, because it’s not ours.

There are licenses that need to be brought into consideration for a specific use for an exhibition or a program, so we have a pretty extensive folder structure that we have put together utilizing OneDrive. In those folders we have those image files, and then also corresponding documents that include the caption, credit information, if there’s any restriction, how it can be used, how it can’t be used. All that is clearly packaged, so they can take it and run with it. Even with a DAMS, it’s still a lot to communicate and there are always things that are not there, and you need to remind people of that in training.

Aleksandra: For us it’s more straightforward, since we are aggregating data. If it’s on the website, it should be okay to use for my team, and to put it on social media. There is a team called Data Partner Services that makes sure that all the content incoming is good quality, correctly licensed, and compliant with our publishing framework. So for us to post on social media, we actually use the website.

What do the new digital engagement strategies that museums are experimenting with [during the COVID pandemic] mean for the legal department, and for the social media guidelines that you have in general? How do these new strategies push the conversation on fair use and reuse?

Mikka: At the Getty, there has not been really yet any kind of dramatic shift or anything that has changed legally in terms of our approach or on our perception of our relationship with the platforms. Maybe on the margins there have been some cases where I’m taking more expansive views on fair use. From a legal standpoint I haven’t seen a lot of shift. It’s much more on the content side and the strategy side. In which new ways we can engage the audience and what are the things that maybe didn’t work so well in the past that are working better now?

The Getty Museum challenge of “take three household objects and recreate a work of art” wouldn’t have worked pre-COVID. Pre-COVID, that team would have been “that doesn’t work, challenges are never a good idea, they always kind of fall flat”. Now everyone is trapped at home, so it did take off in a way that we didn’t expect. We also think that people will start to burn out on screens so we may see a drop-off in the use of social media as a way to engage. People are pushing a lot of content. A lot of it is great, but it’s just a lot. But legally we haven’t really changed our approach. Others might have.

Anne: We haven’t really changed our approach too much either at Newfields. From the legal side, copyright law hasn’t changed, or the practices and requirements around that. We still need to function within those frameworks, and really falling back and relying on the policies and procedures that we already have in place. There has been a huge push on the content side: what else can we get on our main website, and promote on social media, and push people back to the website, and different engagement strategies.

The additional work for Rights & Reproductions has been to review what content do we have that is digitally based that perhaps was already created, but when it was created it was initially created for in-gallery use only? And how can we repurpose that? How can we get that on social media? How can we get that on our website? And we need to review all of that again, including some media that we were going to be using under a fair use assessment. It’s not so much that any of the process or legal requirements have changed. It has changed on the content side, and then seeing what that meant for an increase in some different workloads, and having to revisit some work for different allocations and users.

Aleksandra: We didn’t change anything, but all of what we do all of a sudden become very relevant and very important, and we are trying to be an example on how to do things online for the institutions in Europe. So we produce more content maybe these days, we do more webinars, but workflows remain the same and we of course try to do some stuff around relevant topics.

This is probably also the biggest challenge in educating your users in how to actually use the content, so do you have any guidelines or strategies on how users can reuse the content that you are sharing?

Aleksandra: Some of these strategies we have been doing for a long time now. For us, for example, we did the GIF IT UP! contest way before this crisis. What I would like to say about that which is interesting is that not always the audience will understand immediately. In the GIF IT UP! contest, a GIF making contest we organize every year in October together with DPLA, Digital NZ and Trove, we ask people to make GIFs from openly licensed content. There are always some submissions coming that are not openly licensed, but our choice is to try to educate people. Everyone who sends a submission which is mainly correct but has the wrong license, will receive an email, explaining what happened, why, and they are invited either to re-do the GIF with openly licensed content, or to seek permission. So, I think this should be also an element to think about when you do activities that actually seek engagement. Will you reject something that is incorrect if you have a contest or a challenge? How will you deal with that?

Mikka: At the Getty we started our open content program back in 2013, before I joined the Getty. My predecessor in the Legal Counsel’s role decided to create a custom set of terms of use, and put a lot of content on the website about Open Content, and what you could do with it, basically anything you want, and we definitely have tried to be as clear as possible with that. Over time, I think that it has become clear it is still not as findable as we would like. We are looking to transition over using a CC0 to make it more findable. We are not there yet, but we are getting there. In the intervening seven years, CC licenses have become a lot more common currency, people understand them better, although there’s still training to do around that. But I think the more we can use sort of a single set of nationally legible machine-readable terms, that’s probably going to help our users, and we’re planning to do that in combination with the Rights Statements. It is a challenge to clearly and concisely communicate something, especially if you are a copyright geek like me, because there is a lot of nuance, and knowing that a lot of people actually don’t read the fine print on these things, especially if there are other rights implicated not covered by the license, like privacy rights or publicity.

What happens with other rights that are not copyright in these social media strategies and engagements, for example privacy? How do you deal with those?

Mikka: With the Getty Museum Challenge people were posting that stuff themselves. We don’t know necessarily that everyone who is in one of those are actually themselves, they might be posting things of other people, but it goes back to those terms of service. When the users are posting to the platform, they are taking responsibility for saying that they got the permissions, and simply by posting it, assuming that you are posting a picture of yourself, if your profile is public, you are publishing it, and sort of really obviating privacy concerns, at least for yourself, assuming that everyone else knows that they are in the picture, and that they are ok with it being shared like that.

That being said, we actually went above and beyond by seeking permission whenever we wanted to feature one of those tweets, making sure those users where okay with this, featuring it, promoting it, even though you could take the position that they sort of consented to all of that just impliedly by just participating in your challenge and by using your hashtag. So we want to be respectful. Sometimes you go and ask for permission even when legally you might not need it, in some cases just to maintain a good relationship with your stakeholders. But I didn’t have any privacy concerns around that, and I feel very comfortable again that our team was handling our followers and the participants really respectfully. And when we promoted it, we steered people towards our own open content, like that was what we were hoping people would use.

We wanted people to engage with our collection, and we were pushing them to use the things that were not restricted by copyright. Of course, a lot of people ended up doing stuff like taking stuff from other museums, or maybe public domain from other museums that wasn’t necessarily open content, or the museums hadn’t made it open, or maybe they were riffing on copyrighted content. That’s between them and the platform, but certainly we would never want to push our users to infringe anyone’s copyright and we really wanted people to engage with our open content. But we are careful to do that, whenever we are creating these tools, to really try to make sure people understand. They do need to be mindful of the copyright status of the things they are posting online.

Any last comments?

Mikka: I just want to say that there’s a lot of talk in the air around what does the pandemic mean for copyright, and should we be making more exceptions, and you might have following this sort of thing about the Internet Archive and the National Emergency Library, and the sort of back and forth between publishers and Internet Archive, and I also remember there was a question that arose in the last call you did about online exhibitions that maybe could be done now. I just want to caution, even though I’m an open access proponent, I definitely feel that it’s important to be measured about all this, and think about what it is exactly about our changed situation that might merit pushing boundaries of copyright? It’s not just that we are home, it’s not just that works are in another place, because that’s always been true.

We’ll have a stronger case for pushing the boundaries if it’s really truly tied to the facts, and this sort of unusual situation that we’re in right now. I don’t think that responding to the crisis necessarily means that “all bets are off, do what you want for this limited period of time”. I don’t think that’s quite the right approach. This is my personal opinion. So I would caution people to just think really carefully about what is it about the project they want to do that is made harder or impossible by our current situation, and not just the usual stuff, like putting stuff online is hard, copyright is hard, getting permissions is hard: that’s always been true.

Anne: Definitely, I second that. That it’s absolutely true, and while we are in this situation, and at the end of the day, while there might be pushing some boundaries we still need to proceed cautiously because the laws itself haven’t changed, so we still need to make those risk assessments and look cautiously into everything.

Aleksandra: I think this is a good moment to just think about our digital approaches, not necessarily to do all things online, just kind of realise how many opportunities there are. I guess that in the future, of course, museums will re-open, and everyone will love going there, but maybe the next step will be something that merges everything we learned about these engagements, and what people are actually able to do and want to do if they have time and good content, with physical visits. So I think that actually figuring out digital strategies is a good activity for this time.

Disclaimer: The content of this post does not constitute legal advice nor does it refer to any particular or specific situation. If you have any doubts about your specific situation, you should consult with a lawyer.

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