Cultural Heritage Institutions: Commission’s Copyright Proposal fails to address our needs

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Last week a number of Europeana organisations representing libraries and other cultural heritage organizations released a joint response to the Commission’s copyright proposals. The paper, issued by LIBER, EBLIDA, IFLA, Public Libraries 2020 and Europeana, deals with those elements of the EU copyright framework that are directly relevant to cultural heritage institutions.

This includes four issues addressed in the Commission’s Proposal for a Directive on Copyright in the Digital Single Market (the exceptions for Text and Data Mining, Education, and Preservation copies, and the measures aimed at improving access to out-of-commerce works), and a number of issues that the Commission’s proposal fails to address, such as on-site access to collections and online document supply.

Exceptions are too narrow

The paper underlines that from the perspective of cultural heritage institutions, EU copyright reform needs to focus on updating and harmonizing copyright exceptions:

We believe that overall welfare is best served by a robust and mandatory set of copyright exceptions which facilitate access to knowledge.

Given this general approach it is not surprising the cultural heritage institutions share many of the same concerns we raised in our analysis of the Commission’s proposal. With regard to the proposed Text and Data mining exception (which we discuss here) they observe:

On text and data mining (TDM), the new exception does not go far enough. […] limiting the TDM exception’s scope is a recipe for uncertainty. Any individual or organisation who has legal access to a work should have the right to mine it, without discrimination as to purpose (commercial or otherwise). […] The potential societal gains [of a broader exception], not least in terms of stopping the flow of research to other countries with better adapted rules, are immense.

And in line with our own recommendation related to the proposed exception for digital and cross-border teaching activities, the paper observes that

On education, new rules should not add complexity for teachers and others involved in formal or informal learning. Given that education itself is one of the original goals of copyright, a simpler option is a mandatory exception for illustration for teaching and scientific research applying both to analogue and digital materials.

Missed opportunities

The paper notes that the Commission’s proposal fails to create clear rules for online document delivery to users for private research purposes, and fails to update the technologically-outdated exception that permits cultural heritage institutions to make works in their collections available for research and private study as long as they do so via dedicated terminals located on their premises (Art 5.3.n of the InfoSoc directive). By leaving the “dedicated terminals” language in place, the Commission shows it’s not committed to a genuine modernization of the EU copyright rules. In an age where most visitors of libraries, archives, and museums carry their own portable devices with access to the entirety of the web, the EU copyright rules continue to be modeled on the technological landscape of the late 20th century.

Out-of-Commerce Works

One of the main areas of concern for the cultural heritage institutions is the Commission’s proposal for improving access to out-of-commerce works held in the collections of those institutions. While the paper welcomes the Commission’s attention to the issue, the cultural heritage institutions are not convinced that the approach proposed by the Commission will actually improve the matter:

As well as being overly complicated, the proposed solution seriously limits the number of works which would be covered. Importantly, the licensing based approach proposed by the Commission does not offer a solution where there is no collecting society for a category (e.g.: audio-visual in many member states) or type of work (e.g. works that have never been in commerce), or where a collecting society exists but it is not able to offer a licence for the making available of commercially unavailable material. It may not even provide an answer to the questions raised by the CJEU. To ensure works are not forgotten and locked away unnecessarily, we need a back-up mechanism.

We therefore propose to add an exception to allow cultural heritage institutions to make out of commerce works and never in-commerce works in their collections available online for noncommercial purposes. Member States would be empowered to ensure that the exception does not apply in sectors and for types of works where licences are available. This would recognise licensing as the primary, if not the only, mechanism for dealing with out-of-commerce works.

The fact that libraries and cultural heritage institutions—who are the intended beneficiaries of the Commission’s proposal—reject it in such clear language should give EU legislators reason to rethink these policies. The last thing the cultural heritage sector needs is another set of well-intended bult ultimately unusable rules.

One can only hope that the failed Orphan Works Directive (more than 2 years after its entry into force a mere 2032 works have been registered as Orphan Works) will serve as a warning sign here.

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