Ay, There’s the Rub: When You Cannot (or Should Not) Copy Something Despite its Lack of Copyright Protection

Credit photo: author

Several decades ago, in my younger days, my wife and I spent a summer in England visiting the many historical sites of that great country. During that trip, we visited a number of cathedrals. I don’t remember them all, but Winchester was one for sure. I still have vivid memories of young students sprawled out on the floor of the cathedral taking rubbings from the brass effigies of knights and clergy inlaid in the stone floor. That was a popular pastime “back in the day” (and earlier going back to Victorian times) although today it is discouraged because of the obvious impact on the integrity of the originals from repeated rubbings. It can still be done, but normally from reproductions, such as those found at St. Martins-in-the-Fields in London, where reproductions of famous effigies from throughout England have been collected so tourists can take rubbings from them. You can also buy reproductions of the rubbings for a modest sum.

My mind flashed back to these brass tomb rubbings when I recently visited Gabriola Island, one of the southern Gulf Islands in the Salish Sea between Vancouver Island and the mainland of British Columbia. Gabriola is home to large numbers of petroglyphs (more than 70 in total), rock carvings executed by the native people of the area, the Snuneymuxw (pronounced Snoo-nai-mu), over many hundreds of years. While it is hard to date the carvings, most are believed to be several hundred years old, or older, although some may be of relatively recent vintage. They depict all manner of wildlife and anthropomorphic figures and are scattered around the island, some near the coast, others in auspicious rocky areas, most on private land.

Gabriola is also known for its unusual sandstone features. Over the centuries the soft sandstone has been eroded by the ocean to create waterside “galleries”, clearly visible at low tide. The most famous of these are the “Malaspina Galleries”, covered arcades that people can walk into. The galleries and the petroglyphs have been an attraction ever since the days of the first European explorers. The University of Washington has a photograph of an engraving dated 1792 made from a sketch drawn by Spanish explorer Jose Cardero showing European and native visitors viewing a petroglyph carved on the underside of one of the Gabriola gallery roofs.

Given the attraction of the petroglyphs, and in order to prevent damage to the originals, a few years ago a project was started to make casts of most of the glyphs and display the castings on the grounds of the local museum, laid out on the ground amongst the trees. As they soon became covered in the soft moss typical of the island, they took on the aura of the originals. People, especially student groups, were encouraged to visit the castings and the museum to learn the history of the Snuneymuxw people and as part of the educational experience, they were allowed—even encouraged—to take rubbings of the images displayed in the reproduced castings. The museum even supplied rubbing kits for a small fee.

That was then—a few years ago. Now the signs encouraging the making of rubbings have been (sort of) painted over and the rubbing kits are no longer for sale. The Gabriola Museum has posted a sign saying that after consultation with the Snuneymuxw Nation, the taking of rubbings from the castings is no longer permitted. Why the change? After all, these are “just” reproductions. And aren’t they public domain works? They are not protected by any form of copyright.

To answer this question, we need to look deeper at the origin and meaning of the glyphs, and also to understand the broader global context regarding the protection of indigenous cultural expression. As I discussed in a blog last October (Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?), a number of countries are grappling with how to adapt copyright laws to protect Indigenous Cultural Expression (ICE). One solution may be an international treaty which has been under negotiation at the World Intellectual Property Organization (WIPO) for a number of years, called the Treaty on Intellectual Property on Genetic Resources, Traditional Knowledge and Folklore, but this is a slow process that may ultimately not be productive. Another might be to establish a rights-management agency for indigenous culture, along the lines of what is being considered in Canada. This would allow users to gain consent and license the use of protected cultural expressions (images, designs, music, dances and so on) while at the same time protecting them and restricting their use, even if they are not subject to copyright. A key piece of the puzzle is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) that has been endorsed by 144 countries, including the US and Canada. The Declaration, although not binding in domestic law in many countries (US and Canada are examples) gives indigenous peoples the right to maintain, control, protect and develop cultural heritage including literature, designs, visual and performing arts, and other aspects of traditional knowledge.

In line with the right to control and protect cultural artifacts, it may be that some are considered so sacred that they should not be reproduced at all. There are numerous petroglyph sites in the US (in Arizona, New Mexico, Nevada, Utah, Washington, Illinois, Michigan, Missouri, even Hawaii) and there is a major petroglyph site in eastern Canada, north of Toronto. At Petroglyphs Provincial Park all the glyphs are protected by a weatherproof building, and even photography of the images is not allowed. At the Petroglyphs National Monument in New Mexico, the National Parks Service has this advice for visitors; 

We encourage you to respect the beliefs of the descendants of those who carved the images on the rocks. The petroglyphs within the park are sacred to many people living in the area today. Out of respect and consideration of present day peoples, we currently do not post any images on our website or place any images in our publications that display the human form. We would encourage you not to use the images for commercial purposes.

As you can see, if even photography is often not allowed or is constrained, it is understandable that taking rubbings, even of reproductions, can cross the line of what is acceptable. There is obviously a balance somewhere between limiting access and reproduction for spiritual reasons, and promoting dissemination of the images for purposes of education and awareness.

It seems to me that the Snuneymuxw people and the Gabriola Museum have been able to find that balance by keeping reproductions of the glyphs on display in a natural respectful setting–along with providing suitable explanations and interpretative materials–while avoiding demeaning the symbolism of the images by allowing them to become a form of children’s activities or “entertainment”.

As for the connection with copyright, while copyright cannot be invoked to prevent unauthorized reproduction in this case—it’s just not the right instrument—many of the principles of copyright, including the concept of moral rights, are in play here. Fundamentally, it is a question of respect; respect for the artist (or artists) who created the work, and respect for the meaning and essence of the work. While the artists who created the works are not in a position to give or withhold permission to use or reproduce them, the stewards of the works (the current leaders of the tribe or First Nation) are entitled to do so. To me that is similar to basic elements of copyright—respect for the results of creative endeavour through appropriate use with permission (with or without an incentive as the case may be).

© Hugh Stephens 2021. All Rights Reserved.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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