Identifying cultural resources to digitize involves considering a number of factors. Some are relatively straightforward: Are there characteristics of the cultural resource that make it technically hard to digitize? Are there intellectual property rights that would prevent digitization? What budgetary constraints must be taken into account?

Others will require more careful consideration and analysis: Are there cultural concerns that might make a cultural resource a poor fit for Open Access? Are cultural resources in danger of degradation or damage? Is there strategic, operational, or academic interest in prioritizing specific cultural resources in the collection?

This section will help you find answers to some of those questions.

5.1. Which Works Are Good Technical Matches with 3D Scanning?

Once a pool of cultural resources has been identified for digitization, the physical properties of those resources will largely dictate the method of digitization, or even disqualify them from digitization.

Generally speaking, digitization will be more complex (or may not be possible) for cultural resources that are highly reflective, too fragile to safely rotate in order to capture all sides in a scan, or feature extremely fine elements like hair or feathers.

Refer to the Appendix section Common 3D Capture and 3D Creation Techniques and Software for details on applications and limitations of different capture technologies. The following examples cover a range of hypothetical 3D digitization subjects and possible capture techniques dictated by the physical properties of the subject. In addition to digital capture technologies, a 3D artist could be used to create a 3D model of the object. It may also be assumed that for any of the following subjects, a 3D model could be created by a 3D artist who might use the physical cultural resource (and existing media thereof) as a reference.

A summary table is provided for quick reference, with more detailed notes beneath:

Potential Digitization Technique(s)
Subject Digitization Complexity Photogrammetry Structured Light LiDAR X-Ray CT Motion Capture
Insect Specimen 4/5 ✔*
Coin 3/5 ✔*
Mammal Bone 2/5
Engraved Metal Platter 3/5 ✔*
Glass Vase 4/5 ✔*
Statue 2/5 ✔* ✔* ✔*
Building Interior & Exterior 2/5
Performance 5/5 ✔* ✔* ✔*

* See notes for this subject type for specific workflow

5.1.1. Insect Specimen

Significant Characteristics:
Very small (less than 1 inch), highly detailed, fine and thin features, internal and external features, complex self-occluding forms.

Potential Digitization Technique(s):

Photogrammetry “focus stacking” workflow, x-ray CT.

Digitization Complexity:

4/5.

Examples:

Cryptocephalus sericeus by Digital Archive of Natural History, CC BY 4.0, Technique: Photogrammetry + Focus Stacking

_

Ligia by fishguy, CC BY 4.0, Technique: X-ray CT scan to surface model.

5.1.2. Coin

Significant Characteristics: Very small (less than 1 inch), highly detailed surface features, metallic, internal and external features.

Potential Digitization Technique(s):
Photogrammetry with polarized light + focus stacking workflow, structured light scanning, x-ray CT.

Digitization Complexity:
3/5.

Examples:

Aureus de Marc Aurèle by Musée Saint-Raymond, Technique: Photogrammetry
Dupondius d’Octave à la tête de bélier by Musée Saint-Raymond, Technique: structured light scanning.

5.1.3. Mammal Bone

Significant Characteristics: Very small (less than 1 inch) to medium size (a few feet), internal and external features, complex self-occluding forms.

Potential Digitization Technique(s):

Photogrammetry, structured light Scanning, x-ray CT.

Digitization Complexity:

2/5.

Examples:

Risch-Rotkreuz, Mammut-Stosszahn / mammoth tusk by ADA ZG, CC BY 4.0, Technique: X-ray CT to surface model
Thylacinus Cynocephalus cranium by Centre for Digital Humanities Research, CC BY 4.0, Technique: Photogrammetry.

5.1.4. Engraved Metal Platter

Significant Characteristics:

Metallic/shiny, fine surface detail, thin.

Potential Digitization Technique(s): Photogrammetry with polarized light, structured light scanning, r-ray CT.

Digitization Complexity:

3/5.

Examples:

Bowl by Världskulturmuseerna, CC BY 4.0, Technique: Structured light scanning.
Decorative Battle Axe by Arms Museum, Technique: Photogrammetry.

5.1.5. Glass Ornament

Significant Characteristics:

Transparent, shiny, fine surface detail, internal and external features.

Potential Digitization Technique(s):

Photogrammetry with polarized light + dulling spray, structured light scanning, x-ray CT.

Digitization Complexity:

4/5.

Examples:

Machine-made Glass Bottle (redone) by mhoots23, CC BY 4.0, Technique: Laser scanning + dulling spray.
Blue glass bead with ‘eye’ decoration, T 051 by Limerick3D, Technique: Photogrammetry.

5.1.6. Statue

Significant Characteristics:

Medium sized (~2 to 20 feet), internal and external features, complex self-occluding forms.

Potential Digitization Technique(s):

Photogrammetry, structured light scanning (depending on subject size), x-ray CT (depending on subject size), LiDAR.

Digitization Complexity:

2/5.

Examples:

1952.513 Head of Amenhotep III by Cleveland Museum of Art, Technique: Photogrammetry.

5.1.7. Building Interior and Exterior

Significant Characteristics:

Large, immovable, multiple materials.

Potential Digitization Technique(s):

Photogrammetry, LiDAR.

Digitization Complexity:

2/5.

Examples:

SY Carola (point cloud) by Scottish Maritime Museum, Technique: LiDAR + photogrammetry
The Great Drawing Room by The Hallwyl Museum (Hallwylska museet), CC BY 4.0, Technique: Photogrammetry.

5.1.8. Performance

Significant Characteristics:

Comprising a physical performer and accompanying motion, potentially also costumes and props.

Potential Digitization Technique(s):

Photogrammetry, structured light scanning (for the performer), motion capture (for the performance).

Digitization Complexity:

5/5.

Example:

We do not currently have a good example of an Open Access representation of a performance. Please email engelberg.center@nyu.edu to suggest one.

There may also be non-legal factors to consider when selecting cultural resources to digitize and make available to the public.1 These factors may vary widely depending on the nature of your collection. One factor to consider is how you can effectively propagate an awareness of the cultural resource’s original cultural context.

The best way to address these concerns will vary widely, depending on the nature of the cultural resources and the sensitivities involved. In some cases, it may be beneficial to consult with the cultural originators (or their descendants) of a cultural resource to identify concerns that the communities may have in relation to digitization and Open Access programs.

One innovative approach to cultural resources originating with indigenous communities has been the Traditional Knowledge (TK) labelling system.2 The TK label system makes it easy for indigenous communities to communicate context and preferred uses to others. These labels are not intended to be legal restrictions on users. Instead, they are designed to communicate additional cultural context to users interested in incorporating that context into their own exploration of the resource. TK labels can easily be incorporated into the presentation of the digitized version of the cultural asset.3 Cultural Institution Notices are tools specifically designed to be used by cultural institutions as they engage in collaborative partnerships with communities to address problematic histories, unclear provenance, and incomplete attribution.

Copyright status is another factor to consider when identifying cultural resources to make available to the public.4 Although copyright law varies from country to country, this section is intended to provide a working overview of the main concepts to consider.5 This should make it easier to coordinate with the legal department of your institution or outside legal experts to identify works unencumbered by copyright restrictions. In most cases, it will be easier to start working with items that are in the public domain, which means that their use is not restricted by copyright law.

Generally speaking, copyright automatically protects creative works from the moment of creation for a period of time. While that “period of time” has evolved over the years, today in most places the term of copyright protection is the life of the author plus 70 years.6 Although it can sometimes be complicated to calculate the term of copyright protection for an individual work created in the past, as a general rule of thumb, the older a work is the more likely it is to have entered the public domain.7 For example, in the United States most works created before 1924 have entered the public domain. As a group, archeological objects are also likely to be in the public domain.

While the category of “creative works” eligible for copyright protection when they were created is broad and will likely include most works held by GLAM institutions, there are important exceptions to be aware of. In most cases, copyright does not protect natural specimens like plants, insects, or fossils. Nor does it protect purely functional items, such as a collection of machines or other mechanical items. These items are often in the public domain from the moment they come into existence. Your legal partners will be able to assist in helping identify collections that may be excluded from copyright protection.

Once the period of protection for a work has expired, it enters the public domain. There it joins other works that were never protected by copyright in the first place. Public domain status is important for both the digitizing institution and the public. For the digitizing institution, works in the public domain can be digitized without raising copyright concerns. For the public, an object in the public domain is free to be re-used without fear of violating copyright law.

Digitizing an in-copyright work without permission will likely infringe on the rights of the copyright holder. In light of this, it may be wise to begin digitization with works that are already in the public domain.

For works already in the public domain, there have been questions as to whether the act of digitizing a cultural resource that is in the public domain creates a copyright in the “new” digital copy. The United States courts have been reluctant to recognize a new copyright interest in a digitized public domain cultural resource.8 As of this writing, the treatment of digitized public domain works in the EU is more varied.9 However, the new Article 14 of the EU Copyright Directive10 appears to move away from endorsing the idea of granting a new copyright interest in the digitization of public domain works (specifically works of visual art). National implementation of this directive will clarify some of the specific rules around digital versions of public domain objects. Section 7.7 suggests using licensing best practices to further clarify that the digitizing institution neither has nor claims additional legal rights to the digitized cultural artifact.

In addition to the digitized cultural artifact itself, many institutions will make para- and metadata about the object available to the public. This metadata may include straightforward technical information, such as the work’s dimensions, year of creation, or physical location in the institution itself. It may also include more nuanced information, such as prose written by a curator providing context and background information.

As a general matter, individual pieces of technically descriptive information—facts about an individual cultural object—will not be protected by copyright.11 In contrast, written descriptions and other prose-based context will be protected by copyright.12 Section 7.4 suggests licensing best practices for this type of information.

Although copyright is often the first legal consideration for Open Access digitization projects, the act of digitizing and releasing digital versions of objects in your collection can raise a number of other potential legal challenges. As noted earlier, objects may be encumbered by moral rights, cultural heritage laws, or other non-copyright-based restrictions on use. Your legal collaborators may be able to help you identify additional rules to be aware of when selecting works for digitization and dissemination.

In doing so, it is important to avoid the temptation of the “easy no.” When digitizing large numbers of physical items, it can be easy to imagine edge scenarios where some specific use of the digitized version of the item could violate a law or right (e.g., “what if someone took a digitized version of this crown, created a replica, and tried to pass themselves off as a monarch?”). When faced with this possibility, it can be tempting to broadly exclude categories of works from a digitization program. Avoid this trap by fully articulating the nature of the concern. Also, explore if the concern is specific to 3D models. In many cases the same concern could, at least in theory, be applied to 2D images as well. If your institution is comfortable making 2D images of an object available to the public, in most cases it should also be comfortable making 3D versions available as well.

Finally, in many cases, including a disclaimer that indicates that the files are being released to be used “for any lawful purpose” can address some of these concerns from the perspective of the institution. These types of disclaimers are discussed in Section 7.7.1.1.



NEXT SECTION Digitize


Notes

  1. Professor Sonia Katyal explores the relationship between some legal and non-legal factors in her article, Technoheritage. See generally _Sonia K. Katyal, _Technoheritage, 105 Calif. L. Rev. 1111 (2017). 

  2. Local Contexts provides resources specifically for cultural institutions interested in using the Traditional Knowledge Labels and Cultural Institution Notices. https://localcontexts.org/ educational-resources/ cultural-institution-notices, last visited June 2, 2020. 

  3. There are a host of other cultural considerations to be aware of in many digitization projects. See, e.g., Mathilde Pavis and Andrea Wallace, Response to the 2018 Sarr-Savoy Report: Statement on Intellectual Property Rights and Open Access Relevant to the Digitization and Restitution of African Cultural Heritage and Associated Materials, JIPITEC (March 25, 2019), https://www.jipitec.eu/issues/ jipitec-10-2-2019/4910 

  4. Although copyright law is the most significant legal constraint on digitization and re-use of works, it is not the only possible constraint. Specific countries may have additional restrictions such as moral rights and cultural property rules that may govern use. Work with your legal partners to identify and resolve any additional legal barriers specific to your collection before moving forward. 

  5. The UC Berkeley Library system has produced a series of Responsible Access Workflows to illustrate how they navigate copyright, contractual, privacy, and ethics concerns related to a work. Responsible Access Workflows, Berkeley Library, https://docs.google.com/presentation/ d/1V66PGpIq9xqXxdvngpD3rk AMoIw2hIyVVDS4Iv4VFOM/ edit#slide=id.g56280a330b_0_0, last accessed June 2, 2020. 

  6. This rule is not universal. For example, in Mexico the term of protection is 100 years after the death of the author. 

  7. The Wikimedia Commons maintains a list of copyright rules by country. Copyright Rules by Territory, Wikimedia Commons, https://commons.wikimedia.org/ wiki/Commons:Copyright_rules_by_territory, last updated April 12, 2020. Europeana provides a calculator for some works in some EU countries. Button-Based Public Domain Calculator, Europeana Connect, https://archive.outofcopyright.eu/ calculator.html (last accessed April 16, 2020) There are also many idiosyncrasies around specific works and countries._ See, e.g., Katarzyna Strycharz, _Public Domain: Why it is not that simple in Europe, Medium (January 26, 2016), https://medium.com/copyright-untangled/ public-domain-why-it-is-not-that-simple- in-europe-1a049ce81499 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145862 

  8. See generally Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008), and Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999). For a more detailed analysis, see Michael Weinberg, 3D Scanning: A World Without Copyright, Shapeways (May 2016), https://www.shapeways.com/blog/ wp-content/uploads/2016/05/white-paper-3d-scanning- world-without-copyright.pdf; see also Paul Banwatt and Laura Robinson, Dispatches from the Front Lines of 3D Copyright, 28 Intell. Prop. J. 237 (2016). 

  9. See Thomas Margoni, The Digitization of Cultural Heritage: Originality, Derivative Works and (non) Original Photographs, Institute for Information Law (December 3, 2014), https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2573104 

  10. For a discussion of Article 14 and its possible ramifications, see Alexandra Giannopoulou, The New Copyright Directive: Article 14 or When the Public Domain Enters the New Copyright Directive, Kluwer Copyright Blog (June 27, 2019), http://copyrightblog.kluweriplaw.com/ 2019/06/27/the-new-copyright-directive- article-14-or-when-the-public-domain- enters-the-new-copyright-directive 

  11. See e.g., Feist Pub’lns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350–51 (1991) (“Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection and arrangement of facts, but the copyright is limited to the particular selection and arrangement. In no event may copyright extend to the facts themselves.”) Some jurisdictions, including the EU, do offer protections for information compiled into databases. See, e.g., Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, Official Journal of the European Communities (March 11, 1996), https://eur-lex.europa.eu/L exUriServ/LexUriServ.do?uri=CELEX: 31996L0009:EN:HTML 

  12. See e.g., Krista L. Cox, Metadata and Copyright: Should Institutions License Their Data About Scholarship? 1, 2, n.1 (2017), https://digitalcommons.unl.edu/cgi/ viewcontent.cgi?article=1060&context=scholcom (noting that while “short factual pieces of data [in metadata] are not copyrightable because they are short phrases and pure facts….longer descriptions may well indeed rise to the level of creative expression and could be protected by copyright, unlike short factual pieces of information”).