From Above the Law:
Back in 2019, Techdirt wrote about a fascinating case involving a bogus CC license on a 3D scan of a 3000-year-old bust of Nefertiti. The person at the heart of the saga was the artist and open access activist Cosmo Wenman. His web site has some background on what he calls his “freedom of information projects“:
For more than a decade, museums around the world have been making high-quality 3D scans of important sculptures and ancient artifacts. Many institutions freely share those 3D scans with the public, allowing us to view, copy, adapt, and experiment with the underlying works in ways that have never before been possible. But some keep their scans out of public view, and I’ve been trying to help them see the light.
Following his success in liberating the 3D scan of Nefertiti, Wenman is now trying to do the same with 3D scans of the works of the great French sculptor Auguste Rodin. Many of these scans have been created by the Musée Rodin in Paris. There is a long and entertaining article (in the original French and an English translation – pdf) about Wenman’s pursuit of the 3D scans, and of the Musée Rodin’s refusal to share them. Wenman took an interesting tack, claiming that the museum’s 3D scans were documents subject to France’s freedom of information (FOIA) laws. It worked:
In late 2018 I sent a formal demand to Musée Rodin for access to all its 3D scans, citing French freedom of information laws. When the museum refused to comply, I brought the matter before the French government.
In June of 2019 the French government agency that oversees FOIA matters announced its first-of-its-kind opinion, in my favor; 3D scans produced by French national museums are in fact administrative documents and are subject to public disclosure. Musée Rodin is required by law to give the public access to its 3D scans of Rodin’s works.
Another victory for Wenman, then, but rather a hollow one. Despite the French government agency’s ruling, Musée Rodin continues to withhold the 3D scans. Wenman went on to file a suit against the museum in the Administrative Tribunal of Paris. Wenman wants the court to compel the museum to comply with the law, and to impose “significant” financial penalties for any delay. After more than a year with no response, the court directed the museum to present a defense. At the time of writing, Wenman is still waiting. However, given the unequivocal nature of the rulings against the Musée Rodin, he is confident:
Musée Rodin is going to fight, but I expect to win. The outcome will affect every national museum in France, inform policies at institutions around the world, and have interesting effects on the art market.
I’m shooting for a victory for open access, and freedom and innovation in the arts.
The knock-on effects of one person’s dogged pursuit of a few computer files could have a major impact on the wider availability of 3D scans of sculptures and ancient artifacts — a real win for the public domain.
Link to the rest at Above the Law
First, the application to authors – the 3D scans are a species of intellectual property, just like an author’s intellectual property interest in a story he/she creates.
The major difference is that, if the 3D model had been created from a scan of an original physical work made by or licensed from the creator of that work or as an original digitally-created work rather than one derived from a pre-existing physical object, the creator would have a protectable intellectual property interest in resulting model, the file created and, likely physical instantiations of that creation.
In this case, the scan was made from an original work created by Rodin, not by The Musée Rodin. Since Rodin’s original copyright interest in the original work expired a long time ago, absent some meaningful additional artistic contribution by someone during the 3D scan or with the resulting file, the scan is not a new protectible creation.
If PG goes to a museum and takes an iPhone photo of a 200-year-old painting, he hasn’t created anything new. (Whether he could post-process the photo into something creatively different from the original is a matter of degree. Enough post-processing and it might be a new creation. If PG just tweaked it so it looked a bit better than what the iPhone had produced on its own, probably not.)
Intellectual property experts are free, as usual, to criticize, supplement, etc., PG’s simplified description of the IP interests and their protectability under IP law in the comments below.
It may be obvious to many from the OP, but allow PG to summarize:
- The Musée Rodin houses a large collection of artworks created by by famous French sculptor August Rodin (1840-1917) at locations in Paris and Meudon, where Rodin lived and worked during the last twenty years of his life.
- Rodin’s best-known sculpture is The Thinker.
Under the supervision of the Ministry of Culture and Communication, the Musée Rodin is a non-subsidized national museum, a status that is quite unique on the French museum scene. The collections and works of art originating from the Auguste Rodin Donation, as well the acquisitions made by the museum, are the French State’s inalienable property. The Musée Rodin is administered by a board of trustees. The museum’s task is to make Rodin’s work known worldwide and to ensure that the moral right attached to it is respected.Musée Rodin Public Establishment
It has become common for museums to perform in situ high-resolution 3-D computer scans of, at least, some of their most well-known sculptures. The result of the scan is a digital file that depicts every portion of the sculpture in great detail.
These scans can be easily shared throughout the world for, among other things, detailed examinations and analyses of the sculpture by experts everywhere without the necessity of interfering with the opportunity for the general public to view the original sculpture or risking any sort of damage to or loss of the sculpture by removing it from its current location for such examination. Like any other digital file, exact duplicates can be created at very little cost.
For purposes of a freedom of information request (which is governed by the laws of the country in question), a digital file is, absent special treatment under the law, a document like any other that a government (including government agencies) is required to produce if a FOIA request if filed in proper form.
In the US, per the US Health and Human Services you can file a FOIA request as follows:
The Freedom of Information Act (FOIA) provides public access to all federal agency records except for those records (or portions of those records) that are protected from disclosure by any of nine exemptions or three exclusions (reasons for which an agency may withhold records from a requester).
The exemptions cover:
- Classified national defense and foreign relations information
- Internal agency rules and practices
- Information that is prohibited from disclosure by another law
- Trade secrets and other confidential business information
- Inter-agency or intra-agency communications that are protected by legal privileges
- Information involving matters of personal privacy
- Certain information compiled for law enforcement purposes
- Information relating to the supervision of financial institutions
- Geological information on wells
The three exclusions, which are rarely used, pertain to certain sensitive law enforcement and national security matters.
Cosmo Wenman filed a freedom of information suit in France against the Musée Rodin when the museum apparently objected to his request for a copy of the 3D file of the Rodin statue.
Ultimately, the CADA AKA Commission D’Accès Aux Documents Administratifs (Commission for Access to Administrative Documents) ruled, in part:
the scans of works for which the Rodin Museum ensures the conservation, for purposes of both study and commercial exploitation, constitute administrative documents within the meaning of the aforementioned provisions, as soon as they have been elaborated and are held in the framework of the public service mission entrusted to this establishment. They are therefore, in principle, communicable to anyone who requests it.
The scans are administrative documents and Wenman was entitled to them.
One fact noted in a commentary PG read – The Musée Rodin receives over half of its annual revenue from its commercial activities, selling large and small reproductions of Rodin’s sculptures, printed copies of artworks, mugs, stationery, jewelry, t-shirts, lapel pins, tote bags, etc., with images derived from Rodin’s artworks, etc., as opposed to entrance fees paid by patrons.
So much for the museum’s laser focus on steadfastly protecting the artistic heritage of Rodin.
Once Mr. Wenman has a copies of the digital scans of the artworks in The Musée Rodin, you can expect him to make them widely available for anyone to download at no charge.
Mr. Wenman has been down this road before with the three-thousand-year-old Bust of Nefertiti, held by the Egyptian Museum and Papyrus Collection in Berlin.
You can download the 3-D digital file of the scan at the MakerBot Thingiverse.
Following are two videos that show/explain the 3-D printing process.
The first video is short, depicting the printing process for a smaller-than-life-size copy of the original.
The second video is longer, but more detailed, because the artist/mechanic used a home-sized printer to create a full-sized copy of the original.