For more than a decade, museums around the world have been making high-quality 3D scans of important sculptures and ancient artifacts. Some institutions, such as the Smithsonian and the National Gallery of Denmark, have forward-thinking programs that freely share their 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 many institutions keep their scans out of public view.
The Louvre, for example, has 3D-scanned the Nike of Samothrace and the Venus de Milo. The Galleria dell'Accademia in Florence 3D-scanned Michelangelo's David. The Bargello has a scan of Donatello's David. Numerous works by Auguste Rodin, including the Gates of Hell, have been scanned by the Musée Rodin in Paris. The Baltimore Museum of Art got in on the Rodin action when it scanned The Thinker. The Metropolitan Museum of Art has scans of works by Bernini, Michelangelo, and many others. But instead of allowing them to be studied, copied, and adapted by scholars, artists, and digitally savvy art lovers, these museums have kept these scans, and countless more, under lock and key.
In Berlin, the state-funded Egyptian Museum and Papyrus Collection has a high-quality, full-color 3D scan of the most iconic portrait sculpture ever produced, the 3,364-year-old Bust of Nefertiti. It has held this artifact since 1920, just a few years after its discovery in Amarna, Egypt; Egypt has been demanding its repatriation ever since it first went on display. The bust is one of the most copied works of ancient Egyptian art, and has become a cultural symbol of Berlin. For reasons the museum has difficulty explaining, this scan too is off-limits to the public.
Rather, it was off-limits. I was able to obtain it after a 3-year-long freedom of information effort directed at the organization that oversees the museum.
In August 2016, with the help of the Berlin-based attorney and law professor Kristoff Ritlewski, I sent the Egyptian Museum a request for the scan, citing German freedom of information laws, which grant everyone an unconditional right to access official information from federal agencies. That goes for any official record—conventional files, electronic records, drawings, graphics, plans, and sound or video recordings.
The museum quickly referred the matter to the Prussian Cultural Heritage Foundation, which oversees Berlin's state museums. The foundation—known in German as the Stiftung Preußischer Kulturbesitz (SPK)—is one of the largest cultural organizations in the world. When it received my records request, it acknowledged the existence of the Nefertiti scan and acknowledged that the organization was required by law to give me access to it. But it also declared that directly giving me copies of the scan data would threaten its commercial interests. The Egyptian Museum sells expensive Nefertiti replicas in its gift shop, and it implied that it needs to protect that revenue to finance its ongoing digitization efforts.
In museum-world parlance, this argument against open access is known as "the gift shop defense."
While the law required it to grant me access to the scan, it also gave SPK discretion over the mode of that access. The foundation offered to let me "inspect" the data in a controlled setting, either in its offices in Berlin or, since I live in southern California, at the German consulate in Los Angeles.
The organization was treating its scan of Nefertiti like a state secret.
My ultimate goal in all this was to convince SPK to make its scan freely available to the public, without any access or usage restrictions. A mere inspection of the scan would be worthless to me, but I wanted to see SPK's definition of legally mandated "access" in action before I pressed them further. I accepted their offer to inspect the data at the consulate, but the consulate then mysteriously withdrew its offer to assist. Instead, SPK made arrangements for me to inspect the scan at the Los Angeles office of the law firm WilmerHale, one of the most expensive, well-connected law firms in the world.
The inspection was, as I anticipated, absurd. I told SPK as much, though in more diplomatic terms. The foundation had provided a slow, underpowered laptop that was barely capable of displaying the large files. You can watch my video of the inspection here:
Without direct transmission of the data to me, it was simply impossible to effectively examine the scan, let alone learn anything new about the original artifact.
I told SPK the inspection was inadequate. I asked them to reconsider their position, and to prioritize the benefits to the public of open access over gift shop revenue.
I also made a new freedom of information request, this time for info about that revenue. I asked for records of their revenue from the sales of replicas of any artifacts, including the Bust of Nefertiti, that were derived from their scans. I asked for records of revenue from the licensing of any of their scan data to third parties. And I asked for any records that demonstrated how that revenue was directed to digitization projects. Finally, I asked them if they would accept a financial donation in exchange for making their Nefertiti data freely available to the public and, if so, what their price was.
SPK's response, five months later, was revealing.
The foundation rejected the idea of accepting a donation in exchange for unrestricted public access to the Nefertiti scan, but it nonetheless invited me to negotiate over terms and a price for a license to use the scan for my own commercial purposes.
SPK confirmed it had earned less than 5,000 euro, total, from marketing the Nefertiti scan, or any other scan for that matter. SPK also admitted it did not direct even that small revenue towards digitization, explaining that it was not obliged to do so. In the nearly 10 years since it had created the Nefertiti scan, SPK had completely failed to commercially exploit the valuable data idling on its hard drives.
All SPK's reasons for not giving me the Nefertiti data fell apart. The gift shop defense had been smoke.
As if in recognition of this, there was something else in their response—something I did not expect. A USB drive containing the Nefertiti scan.
SPK reiterated that it had no legal obligation to give me the data in this direct format. I was receiving the scan this way, the organization explained, only to address my specific concerns about being able to examine it effectively. The foundation emphasized that it was providing this to me only for informational purposes, not for commercial use. It was SPK's way of saying, "Here it is, now leave us alone."
While it was satisfying to see SPK bend, what I'd really wanted was for them to liberalize their policy and make the Nefertiti data available to everyone, without usage restrictions. But they'd given it only to me, and they had prohibited commercial uses. By fulfilling their legal obligations, even if so narrowly, I no longer had freedom of information laws as a tool to push SPK for wider access.
When I looked at the data for the first time, though, there was another surprise.
To mark their territory, SPK had inartfully carved a copyright claim directly into the flat underside of the 3D model. And without explanation, it had included a Creative Commons "CC BY-NC-SA" license.
It's unclear which elements of their digital copy of the Bust of Nefertiti SPK imagines it has a copyright in. The original artifact is clearly in the public domain. And copyright attaches to original works; copyrighting a copy doesn't make sense. Especially if the original is in the public domain. It has a chilling effect on the public's lawful use of public domain works, and creates paradoxes in enforcement. In any event, whatever you make of SPK's ambiguous copyright graffiti, there can be no doubt about the meaning of the Creative Commons license. It requires users of the data to identify the original source of the material, and it bars commercial uses. But it also explicitly allows for the copying, redistribution, adaptation, and transformation of the data. The license also states that users "do not have to comply with the license for elements of the material in the public domain."
So there it is; SPK appears to have almost completely buckled.
I say almost because, even after all this time, they still left it to me to actually put their Nefertiti scan online and make it available to a wider audience. They should be embarrassed. I don't have curators, an administrative staff, or a legal department. SPK, with its state-sponsored mission to serve the public, has an extensive web presence and a 390 million euro annual budget.
You'd think SPK could spend half an hour throwing a webpage together and uploading the data for everyone to access. But they haven't, so I've done it for them.