Can technoheritage be owned?

Oleg Koulikov for the Boston Globe

In 1947, French statesman and novelist André Malraux, famously wrote about the concept of a “museum without walls.” The idea was simple, radical and beautiful: Reproduction, he wrote, had made it possible to liberate art from its historical location and origin, allowing the viewer to see art in completely new combinations and contexts.

Today, art is liberated in ways that Malraux could have never imagined. From Wikimedia Commons to Google Images, one-of-a-kind artifacts are frequently available to anyone with a Wi-Fi connection. The preservation and replication of antiquities has never been easier.

Nor, however, has art been more vulnerable — across the world, war, terrorism, and natural disasters regularly threaten to contract our pool of cultural resources. Indeed, an entire swath of startup enterprises have been based on the simple principle that what one group or storm destroys, an endless array of new technology can re-create, making copies that are more enduring, sustainable, and user friendly than the original antiquities that inspired them.

Consider the ancient city of Palmyra in Syria, which has been under assault amid that country’s civil war. A few weeks ago, extolling the virtues of 3D replication, The New York Times published an article, “If all else fails, 3D Models and Robots Might Rebuild Palmyra,” noting that technology could serve to mitigate the damage of war and conflict to historical monuments. “This is the moment we have been waiting for,” said Roger Michel, the founder and head of the Institute for Digital Archaelogy. “If they knock it down,” he said, “we will rebuild it. If they knock it down again, we will rebuild it again.”

Yet while it’s easy to predict that technology will solve — or at least mitigate — the problem of cultural destruction, the big picture is much more complicated. Today’s archaeological moment demonstrates both the possibilities and limitations behind what we call “technoheritage” — the marriage of technology and cultural heritage. Museums have had to embrace the explosion of digitization technologies, 3D printing, virtual and augmented realities that can precisely replicate works of art and make them available to a wider audience. In an era where iconic works of cultural heritage are being defaced and destroyed, these technologies have never been more important. However, just as technology has the power to preserve and protect ancient artifacts, it also invites a dizzying array of legal conflicts over their digitization and replication, particularly regarding the intersection of copyright law with cultural identity.

Items that might be in the public domain start looking more and more like items of private property, subject to the control of a single entity, and part of a culture of “hyperownership,” a term that researchers Amy and Christopher Blackwell have used to describe a world in which “seemingly everything is subject to being owned by someone.” The same issues that we see in every other context regarding the intersection of copyright and technology surface again. But here, the failure to recognize the distinct differences between cultural property and intellectual property leads to troubling results.

Last December, two artists walked into the Neues museum in Berlin and, in defiance of the strict no-photography rule, allegedly generated a 3D scan of the famous bust of Nefertiti from a hidden Kinect. The artists then used a resin-based printer to produce their own version, “The Other Nefertiti.” Their project had two motivations. To display their 3D print in Egypt as a repatriative statement against the theft of ancient artifacts by Western nations (billed as “the first return to Egypt in 100 years”), and to defy the strict limitations that museums often place on sharing the informational data regarding their collection with the public. They released the data online with a Creative Commons license so that anyone could download and replicate the bust. According to the artists, “people can reclaim the museums as their public place through alternative virtual realities, fiction, or captivating the objects like we did.”

A few weeks later (thanks to some fact checking by a few dedicated bloggers), it turned out that the “precise scan” that the artists allegedly produced was most likely a scan that came directly from the Neues museum itself. Ironically, this only further underscores the value of what the artists were trying to say about the relationship between technology, cultural artifacts, and the notion of private property.

By digitizing and replicating objects of cultural heritage, we risk inviting a host of legal disputes over access and ownership. Take, for example, the promise — and the legal perils — of 3D printing. It used to be that copying technology was so underdeveloped that it was easy to tell the difference between a reproduction and the original. That is no longer the case. Scanning and 3D printing technology are so advanced that they enable a creator to obtain incredibly precise and detailed information about an object and produce a perfect copy.

Yet the sophistication of 3D printing might also be its greatest challenge. Every time someone makes a copy of something, whether through a photograph or a 3D printer, they (often unknowingly) employ copyright and contract law to regulate their creations. While we normally think of legal protection as good for artists, it can also be a bad thing for the public who want access to their goods, particularly when items of cultural heritage are already in the public domain. Yet when cultural properties become duplicated and digitized, they become converted, essentially, into items of intellectual property, and their owners often fail to recognize the limitations of legal control as a result.

Even when their cases lack legal support, museums and governments can try to use copyright or contract law to restrict access to cultural materials, to claim that they own all of the data and images outright, or to use digital rights management technology to lock up their data altogether. The result is “copyfraud,” a term coined by law professor Jason Mazzone to describe when an owner asserts protection in elements or creations that are actually not copyrightable. There have been several cases of entities claiming a property or copyright interest in data or images derived from ancient artifacts — and then restricting access to researchers as a result. In one case, a college asked an artist to take down 3D files of a replica of a Michelangelo sculpture that was installed on its campus, even though the sculpture was firmly in the public domain. In an even more ironic case, a designer named Ulrich Schwanitz created a 3D file for the famed “Penrose” or “impossible” triangle and then challenged others to do the same thing. Yet when another person figured out how to replicate Schwanitz’s (hidden) 3D design and posted it on the Internet, Schwanitz sent him a cease and desist letter — even though he did not own a copyright in the original triangular design.

Even universities that champion innovation — like Stanford University, which has spent the last 10-plus years building a 3D scan of Michelangelo’s “David” — strongly restrict access to their “David” datasets to only “published” or “established” researchers and scholars, prohibiting researchers from circulating the datasets to their classes or posting the information on the Internet. (Researchers are also admonished, as legal researcher Charles Cronin reports, to “keep your renderings and other uses of the data in good taste,” since the artifacts are the “proud artistic patrimony of Italy.”)

Something different is happening here. When cultural property is converted to a 3D print or rendered in virtual or augmented reality, it starts to look and feel like other forms of intellectual property. But are these disputes reruns of the same IP disputes we’ve already seen in the emergence of other, new technologies? Or are we seeing something different where cultural heritage is concerned? Will all these advances in technology have the same impact on museums, archaeology, and other preservation industries as digitization had on the music or film industry? What are the unintended consequences not yet anticipated on the public domain, our vast swath of cultural knowledge that is already open for all?

Years ago, legal commentators like Pamela Samuelson and Lawrence Lessig warned us about moving from a world characterized by the freedom of information to a “pay per use” society. As we move from a world of tangible cultural properties into a world of intangible cultural images, we might unwittingly create a world full of licensing disputes, unwanted restrictions — and limit our cultural knowledge in the process.

Sonia K. Katyal is a professor of law at the University of California, Berkeley, and faculty co-director of the Berkeley Center for Law & Technology. Simone C. Ross is cofounder and chief program officer at Techonomy.