Today, Europeana published an open letter to Commissioner Oettinger in which the directors of 29 major European cultural heritage institutions demand a reform of the European copyright rules that would allow their institutions to make more of their collections available online. This letter comes in response to the Commission’s intention to review parts of the existing copyright rules to make sure that copyright functions within the Digital Single Market.
In their letter (which can be signed by additional institutions here), the directors argue that their institutions are hindered by the fact that the existing exceptions and limitations benefitting their organisations have not evolved to reflect the ways that citizens access and engage with cultural content:
Europe’s public cultural heritage institutions are key to influencing and shaping our lives with unrivalled access to information, culture and our shared history. They promote knowledge, education, research and encourage the creation of new culture.
Ways to share and engage with cultural content have been transformed in a digital age, but limitations in current European copyright rules restrict that full potential. As a result, our institutions contain large collections established and cared for using public funds but they cannot be made easily available to the public online.
Messenger boy / The Library of Congress / No known copyright restrictions
Last week the Communia Association submitted comments (PDF) to the United States Library of Congress’ Request for Information on the topic of Third Party Digitization Initiatives.
To give a little bit of context, the Library of Congress is looking for contractors to digitize some of their collections, primarily public domain content. In exchange for digitizers scanning materials at zero cost to the Library, the contractors “may market and resell, for a limited period, access to the digitized collection to cover the costs of digitization.” Contractors must provide the Library with a digital copy of the materials, and they must “make materials widely available.” The Library agrees to not make the digitized materials available online for a certain period of time (this embargo will be no more than 3 years) so that the Contractor can recoup the scanning costs. The Contractor must meet certain quality parameters and provide some metadata to the Library. Finally, the Contractor “shall not claim copyright in the digitized copies of the original Library materials…[but] may assert copyright in independent, creative elements that it may add to the original materials.”
Communia applauds the Library of Congress for taking the initiative to increase public access to its collection. In its comments, Communia urged the Library to push for broad, unencumbered public access to its digitized materials as soon as possible.
We offer a few suggestions for strengthening the Library’s Request for Proposals (RFP). A few of these suggestions are outlined below:
- The Public Domain Manifesto says that digital reproductions of works in the public domain must also belong to the public domain. And since the Contractors may not claim copyright in the digitized copies, it would be beneficial for these copies to be marked as being in the public domain using a tool such as the Creative Commons Public Domain Mark.
- The Library should consider bids from Contractors that entertain a wide variety of access models. For example, some digitizers might be in the position to offer immediate, free ad-supported access (instead of selling access on demand).
- In general, the Library should prioritize bids that provide free public access sooner than those that have longer embargo periods.
- The Library should consider involving volunteers and other community organizations willing to assist in the digitization and quality control work. For example, Wikimedia France partnered with the Bibliothèque nationale de France to process high definition files of public domain texts.
- The Library requires the vendor to provide a set of core metadata. The Library should be authorized to release this metadata into the public domain using the CC0 Public Domain Dedication, thus aligning with an open metadata model used by several large libraries around the world, including The British Library, Harvard Library, and soon to be used by Europeana.
- The Library should develop a strategic access plan and secure the necessary funding so that the materials can be properly archived and made publicly available without delay once the period of exclusivity has come to an end.
- In future RFPs, the Library should consider how to leverage the expertise and capacity of digitizers to scan not only these small, interesting, and impactful collections, but also the vast (yet less visible) trove of public domain materials that comprise the bulk of the Library’s collection.
You can view the full comments of Communia here
The UK Government has published a Government Policy Statement based on the recent Consultation on modernising Copyright held in the UK. The document summarizes the findings of the consultation and outlines policy actions that the UK government intends to take. The policy statement (pdf) covers three fields where the government intends to legislate: ‘Improvements to copyright licensing’, ‘Extended Collective Licensing’ and ‘Codes of Conduct for collecting societies’:
The Government, following the Hargreaves Review, made a number of proposals to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.
These measures bring some currently unlawful or unlicensed activities within the scope of legal activity, allowing licensing to occur and thus benefiting right holders and licensees alike. They have potential to cut costs and improve compliance with copyright law, and to improve confidence in the UK copyright system.(p.7)
In the light of the discussion about the ‘Orphan works’ directive the first two of these should be of interest beyond the borders of the Island Kingdom.Continue reading
The compromise text of the proposed orphan works directive is finally out. If nothing unexpected happens, this text should be what gets adopted later this year, what needs to be transposed into national legislation within 2 years from then, and what cultural heritage institutions that are confronted with hostage works need to deal with for the next decade or two. This text also represents the first finished legislative project that is part of the European Commissions Digital Agenda, which attempts to make Europe ‘fit for the digital age’.
Given all of the above, it is unfortunate that the text also is a legislative train wreck that fails to make any substantial improvements to the situation in which memory institutions engaged in digitization efforts find themselves. The compromise text of the proposed directive (‘compromise’ refers to a compromise between the three EU legislative bodies the Commission, the Council and the Parliament, not a compromise between the many stakeholders affected by this legislation) has essentially abandoned the initial purpose of the proposed directive. That purpose was to ensure that the public gains access to those works that are held hostage by the copyright legislation that has failed to keep up with social and technological change. Instead, the proposed directive has morphed into a twisted attempt to protect the ideology underpinning 20th century copyright legislation against the effects of the problems created by the rigidity of this very ideology.Continue reading
Information Sans Frontières (ISF), an alliance representing public cultural heritage institutions in Europe, has published a new position statement on the proposed Orphan Works directive. On 23 March the ISF reacted to the recent changes in the proposal that resulted from the ongoing negotiations between Council, Parliament and the Commission stating that it was “deeply disappointed in the outcome.” The ISF is highly critical of the latest version which has transformed the proposed Directive into an instrument that is more likely to complicate access to orphan works than to promote it.
According the ISF there are 4 main issues with the Orphan Works directive in it’s current (23 March) form:
The provision to require remuneration for past use of an orphan work as a rights holder re-appears needs to be removed. It undermines the entire purpose of the directive which is to create certainty for users of orphan works (we have raised this point before)
- The provision allowing commercial uses of orphan works (article 7 in the original proposal) needs to be restored in order to allow for public-private partnerships to fund digitization projects
- The provisions on technical requirements for record keeping related to diligent searches carried out in order to identify orphan works should be made less technology-specific.
- The ‘liability’ amendment that has been added as recital 16a needs to be removed as it increases legal uncertainty for users of orphan works and as such is counterproductive to the overall aim of the directive (facilitating the digitization of Europe’s cultural heritage).
This analysis provided by ISF is largely in line with the concerns raised by COMMUNIA in our policy paper on the proposed directive and later statements on this site. Overall Information Sans Frontières makes it clear that it considers the directive in its current form unable to achieve the objectives it is supposed to achieve. In an updated version of the position statement from 2 april the ISF concludes that:
… we hope that the high-lighted difficulties will be removed in forthcoming negotiations with the Commission and Council. If they are allowed to remain, the Directive will not achieve its purpose, according to the Commission’s IP strategy of promoting the digitisation and making available of the collections of European cultural institutions (p.13). We believe that the Directive will set damaging precedents, and will be of negligible use to our member institutions. As the intended beneficiaries of the Directive, we shall ask the Parliament to reject the Directive in plenary if these problems are not solved.
As we have mentioned here before it is alarming to see an organization representing the intended beneficiaries of the proposed directive reject it in its current form. This is more than understandable as the changes that have been introduced during the negotiations so far have turned a good but technically flawed instrument into an instrument that introduces additional uncertainties and restrictions for cultural heritage institutions that are already struggling to provide access to cultural records from much of the past century.
This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.
The Proposal for a Directive on certain permitted uses of orphan works, introduced in the European Parliament on 24 May 2011, has been following its merry way through the legislative meanders ever since. The debates around the text of the proposal are heating up right now, for the European Commission pushes for rapid adoption while stakeholders watch out against any measure possibly affecting their respective interests.
Already since the beginning of this year, the Danish Presidency has published two revised compromise proposals, one on 6 January and the second one on 10 February 2012. The last proposal was followed by a Presidency non-paper on a possible single database for orphan works for discussion at the Working Party on Intellectual Property (Copyright), held on 17 February 2012. The drafting suggestions made by the Belgian delegation have unfortunately not yet been made available.
The crux of the discussions revolves around the need under the Proposal for a directive for cultural heritage institutions to carry out a diligent search about the orphan status of a work and the extent of such an obligation. Cultural heritage institutions warn that the unhappy result of imposing such an obligation may be that large-scale digitization efforts will see no benefit, after the adoption of the Directive, over the situation they face now. The danger remains that the twentieth century will remain the unknown century for Europe’s children. Its culture will be inaccessible in digital format.
A realistic and practical approach about the kind of collection represented by orphan works is paramount. Examples are:
- Books discussing the chances of war, published 1910-1913
- Sound recordings of ordinary people, using ordinary speech, to illustrate regional dialects in Denmark
- Anonymous political pamphlets expressing dissident views under the Communist regime in Hungary
For each of these collections the commercial value of the rights is zero or nearly zero. Safeguards for rightholders of orphan works are required, but need to be proportionate to the kind of material in a collection.
A call has been made by cultural heritage institutions to the Council of Minsters’ working group for a more balanced and practical solution as follows:
- Diligent search, a valuable concept, must not necessarily apply to every work (including every embedded work), but must be proportionate to the collection being digitized
- Restrictions on commercial use must be sufficiently flexible to allow for commercial funding of digitization projects
- Requirements for recording diligent searches, and uses of orphan works, should not be over-specified in law
- If the use of an orphan work is permitted by the national licensing scheme of a Member State, the Directive should provide for the permission to extend to all Member States in that particular case. (Such a provision would not impose licensing solutions on all Member States. But it would avoid a fragmented Internal Market of mutually exclusive licensing arrangements.)
The Presidency non-paper of 14 February partly responds to these concerns by suggesting that a single database be set up following the ARROW model to convey information about which work is being used and by whom.
The question remains, however, whether the other concerns voiced by cultural heritage institutions regarding the extent and the cross-border validity of a diligent search will be addressed in the final text of the directive.
To be continued!
Information Sans Frontières, a newly formed alliance from the library world (Europeana, JISC, LIBER and EBLIDA) has just released a memorandum on the proposed orphan works directive addressed to the Council of the European Union. The memorandum, backed by some of the the most obvious beneficiaries of the proposed directive is nevertheless highly of the proposal:
Information Sans Frontières is an alliance representing the institutions in the Member States addressed by the proposed Directive. We urge that the Directive should embrace unpublished as well as published works, and creative works in all media. We are unanimously of the view that the Directive is in danger of failing to achieve its policy objectives, in particular large-scale digitization projects. The Presidency compromise proposal has several inherent contradictions with respect to the purpose of the Directive.
- It is too prescriptive of the methods to be used by the target institutions, insisting on procedures that in some cases will be impracticable
- It is insufficiently hospitable to solutions based on licensing, which are mentioned briefly in Recital 20 but which have no legislative support in the following Articles in order to allow them to function across borders
- It seeks to modify the exceptions contained in Directive 2001/29/EC by adding further restrictions on the freedom of action of the target institutions
- It prescribes over-burdensome methods for institutions to publish their records
You can read the full text of the memorandum here (ISF does not seem to have a website yet).
The memorandum echoes some of the objectives raised by COMMUNIA in our own policy paper on the directive, and raises a couple of issues that we have not touched upon. It is of course rather worrisome that and organization such as Europeana, which embodies the aspirations of the Europeana Union in the digital heritage realm, makes it this clear that the proposed directive will not make it any easier for them to achieve it’s objectives. This is even more worrying since it is the same European Commission that is formulating these objectives, via it’s Recommendation Commission recommendation on the digitisation and online accessibility of cultural material.
On the 28th of October the European Commission has adopted a recommendation on digitisation and digital preservation. This recommendation is following up on a similar recommendation from 2006. At the core of the recommendation is the request to the member states to step up their digitization efforts, pool their resources and involve private actors in digitising cultural material. All of this is related to ensure the expansion of Europeana, the Europeana Commission supported digital heritage portal for Europe.
Given that copyright remains the number one obstacle to getting cultural heritage collections online it is no surprise that this recommendation deals with copyright questions as well. In this context it is good to see that the Commission is making it clear that digital reproductions of public domain works must remain in the public domain:
…in order to allow wide access to and use of public domain content, it is necessary to ensure that public domain content remains in the public domain once digitised. The use of intrusive watermarks or other visual protection measures on copies of public domain material as a sign of ownership or provenance should be avoided. (recital 13, page 3)