In March 2019, the courts ruled that the ban on photographing temporary exhibitions at the Louvre was as legal as it was justified. A new arm wrestling match this time involves the 3D data from the sculptures in the Rodin Museum. The Committee on Access to Administrative Documents shall consider this information to be perfectly communicable.
For years, multimedia artist and entrepreneur Cosmo Wenman has been fighting a battle: to free works digitized in 3D by museums, to make them accessible to the public, with a multitude of applications to be considered: research support, adaptations, copies, accessibility for the blind, etc. For his part, he has opened an Etsy shop where he sells reproductions born of these three-dimensional clouds.
In June 2014, an announcement from the Baltimore Museum of Art (BMA) aroused his interest. The institution is proud to announce that their scan of Rodin’s Thinker will soon be available. ” This will be the first time we have made a 3D scan of a BMA work available and we are excited to see how it could be used by researchers and the public around the world ,” says BAM.
But months and even years go by without this 3D point cloud being disseminated. In June 2017, Cosmo Wenman asked the museum for a copy of these files. There follows a long exchange of letters in which the establishment finally invites him to return to the Rodin Museum.
To understand why, just read the legal page of the French museum dedicated to this collection. ” By three donations of 1 April, 13 September and 25 October 1916, accepted by the law of 22 December 1916, Auguste Rodin donated to the French State all of his work and the related artistic property rights “.
The museum was then invested ” as Rodin’s successor in title within the meaning of the legal provisions on literary and artistic property “. And by virtue of a decree of February 2, 1993, he was entrusted with the noble mission of ” to make Rodin’s work known and to ensure respect for the moral right attached to it “.
Exchanges continued between Cosma Wenman and this time the Parisian establishment. On June 5, 2017, the latter asked him about the use he intends to make of the scan of the Thinker. Mr. Wenman replied that his company simply intended to use this data for professional and commercial purposes, in particular by producing bronzes of different sizes in indefinite quantities.
Moreover, ” to avoid any infringement of the moral rights of the Rodin Museum, these reproductions would be manufactured, advertised and sold outside France, without being presented as originals “. Thus, ” this use would be compatible with the public domain status of the works of Rodin ” he warns.
Refusal by the Rodin Museum, which also informed him that a mission was underway at the Higher Council for Literary and Artistic Property. ” The Rodin Museum is a national museum under the supervision of the Ministry of Culture, and it must therefore await the conclusions of the current mission before deciding on issues related to the use of 3D digitization ” wrote Hugues Herpin, the museum’s head of department, to him on June 5, 2018.
The explanation is fragile. On the one hand, the sole purpose of this famous mission launched on 8 January 2018 was the drafting of ” a charter of good practices concerning the use of three-dimensional scanning and printing processes and aimed at preventing the illicit use of works”. Its interim findings were revealed in our columns on May 20. They propose different tracks such as a commitment to place the phrase ” reproduction ” or a tracking number on each file and each reproduction.
But this remains only a charter, without normative scope.
On the other hand, on 4 July 2018, Olivier Japiot, president of the CSPLA and responsible for this mission, wrote to Cosmo Wenman to assure him that he had ” no authority” over the museum and that the disputed point ” is not part of my mission for the Ministry of Culture “.
On September 14, 2018, visibly annoyed, Catherine Chevillot, director of the Rodin Museum, answered more curtly: ” For almost a year, contrary to your assertions, the agents of the Rodin Museum have been responding to your innumerable requests. We have nothing to add “.
” Moreover,, adds this general heritage curator, the Rodin Museum remains the sole judge of the advice and documents they wish to surround themselves with or to provide themselves with “. And the latter to refer him laconically to Decree 81-255 of 3 March 1981 on the repression of fraud, which defines the limits to his powers.
Pugnacious, the artist-entrepreneur assures us that this position is abusive, and that if there has been so much mail, it is mainly because the museum has never deigned to answer it properly. Moreover, in his view, ” neither Decree No. 81-255 nor moral rights allow the Rodin Museum to interfere with the public’s legal access to or reproduction of works in the public domain “.
According to him, ” presumed violations of this decree and of moral rights must be judged by the courts after a possible infringement, not a priori by the Rodin Museum “. Therefore, ” the unjustified and extra-judicial interference by the museum in my lawful activity and in the legitimate use of a work in the public domain has caused me and my company financial damage “.
How can a museum be compelled to disclose data in its possession to a third party? Simple. Cosmo Wenman then called in Alexis Fitzjean ó Cobhthaigh, a lawyer at the Paris Bar. The latter initiated a request for communication of administrative documents by taking advantage of the CADA’s opinion of June 28, 2018, issued following the request of our colleague Xavier Berne (request for communication of the source codes of the software used to calculate the housing tax and property tax).
He very officially requested from the museum ” the files containing the three-dimensional digitized version (3D scan) of Mr. Auguste Rodin’s “ Penseur “, including the version used to print copies of the Penseur promoted on[the official site], as well as any other version of better quality”.
In order to see how his client’s solicitations were appreciated internally, his request also covers the communication of ” all e-mails, exchanged, sent or received by the Rodin Museum, one of its employees or one of the members of its management team, having as their subject, dealing with or mentioning Mr. Wenman’s previous requests “.
Explicit refusal by the Director of the Rodin Museum, who, full of good will, initially replied that ” if e-mails can be considered as communicable administrative documents, it is up to you to specify your requests by indicating what correspondence you are requesting communication of, specifying the identities of the sender and recipient, the date of the correspondence and the subject of the correspondence “.
In any case, adds the museum director, this right of access presupposes that a copy has been kept in paper or digital form, suggesting a conservation policy for mail that is at the very least special …
It’s not easy to provide such information from a document you don’t know about because you don’t have access… In response, the lawyer gave him a short introductory computer course: ” as regards correspondence mentioning my client, all you would have to do is make a simple search in your automated data processing system with the following discriminators: “Cosmo”, “Wenman” and “Cosmo Wenman”, as well as “BMA”, “artbma.org” and “Baltimore”, and then to send me the results of this search “.
Above all, on the heart of the application, the establishment ” disputes that three-dimensional digitizations of works constitute communicable administrative documents within the meaning of the code of relations between the public and the administration “.
The director opposes in particular article L. 311-4 of this code, according to which ” administrative documents are communicated or published subject to literary and artistic property rights “, ” being reminded that the Rodin Museum is invested with the status of Rodin’s rightful claimant within the meaning of the legal provisions on literary and artistic property “.
Finally, she drums, ” the trademarks R, RODIN, AUGUSTE RODIN and Musée RODIN are the exclusive property of the Musée Rodin. Thus, any reproduction, use, affixing, imitation or alteration, in any manner whatsoever, of one or more of these trademarks, constitutes an infringement engaging the liability of its author and is strictly prohibited within the meaning of Article L 716-1 of the Intellectual Property Code “.
Alexis Fitzjean ó Cobhthaigh replied that the moral right ” does not in any case authorize any hindrance to the use of a work, but only limitations on uses that may harm the image of the artist“. It is therefore impossible to base a refusal to disclose on such a right.
If the moral right is ” perpetual, inalienable and imprescriptible “, the economic right is in principle extinguished 70 years after the death of the author. ” An intellectual work that has entered the public domain is [henceforth] free of economic rights, so that a third party may exploit such a work perfectly well (…) subject only to the sole condition that it does not infringe on the moral right, which remains perpetual.
In this case, Mr. Rodin’s works have been in the public domain for many years. Finally, ” the circumstance that the Rodin Museum has registered trademarks is not a ground for objecting to the communication of the documents whose communication I am requesting for my client “.
The case was referred to the CADA on 8 February, and the CADA issued its opinion on 6 June 2019. And this is a victory for Cosmo Wenman, who was warned last Friday: “the digitisation of works preserved by the Rodin Museum, for both study and commercial purposes, constitute administrative documents within the meaning of the above-mentioned provisions, as soon as they have been prepared and are held within the framework of the public service mission entrusted to this establishment. They may therefore, in principle, be communicated to any person who so requests“.
In the exchanges between the museum and CADA, the director of the Rodin Museum certainly “underlined the disadvantages that the communication of the files requested would entail, both in terms of the institution’s resources, the preservation of the integrity of the data collected and the risks of counterfeiting and artistic fraud“.
According to its latest activity report, according to its last activity report, entrance fees were equivalent to commercial activities (shop, VOC, bronze, photo agencies, etc.), i.e. 3.4 million euros compared to 3.2 million euros. That third parties could print in 3D or even commercialize bronzes generated from the data collected by the museum could be painful…
Appropriations: Rodin Museum
However, the Commission can search the codes, “there is no legal basis for refusing to disclose an administrative record on such grounds“.
Thus it issues a favourable opinion on the communication “of the files containing the three-dimensional digitised version of works“. Quite simply, as is its mission, the museum will be “in charge of enforcing the moral rights of the sculptor and must ensure that the work is respected when reusing the documents requested“.
It recalls that the museum may, if it so wishes, require the payment of a fee, since the request is for ” information resulting from the digitization of the holdings and collections of libraries, including university libraries, museums and archives, and, where appropriate, associated information when the latter are jointly marketed“, as provided for in Article L324-2 of the RCAP.
If this is the case, the Rodin Museum could therefore “license the reuse of three-dimensional digitizations and add atariff. However, this tariff is limited by law, since the total proceeds from this royalty must not exceed “the total amount of the costs of collecting, producing, making available or disseminating, retaining their information and acquiring intellectual property rights. »
What’s next? Or the museum follows the (non-imperative) advice of the CADA obediently and the story ends there. Alternatively, it persists in refusing such communication, in which case the dispute will be decided by the administrative courts. In any case, this is the first time that the CADA has noted that 3D data generated from a scan of a three-dimensional work are administrative data that can be communicated to citizens.
- Download CADA’s opinion