Cultural heritage institutions: Extend exceptions to reflect new technological realities!

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One of the more remarkable aspects of the Commission’s communication “Towards a modern, more European copyright framework” from last december was how much attention it paid to issues faced by Cultural Heritage Institutions. In the communication the Commission announced no less than four different interventions aimed at modernizing those aspects of the copyright framework that govern how Libraries, Archives and Museums can operate in the digital environment. These include the introduction of a new exception for Text and Data mining, updates to the exception for the preservation and research and private copy exceptions and the ambition to make ‘it easier to digitise out-of-commerce works and make them available‘.

As we have argued here before, Europe’s cultural heritage institutions deserve copyright rules that allow them to fully embrace the opportunities offered by the digital environment. And as we have noted before we are not alone with this opinion. Both the European Parliament (in the form of the Reda report) and prominent cultural heritage institutions from across Europe (in this open letter) have made the point the Libraries, Museums and Archives should benefit from exceptions and limitations that also apply online.

While it is unclear at this point how the commission intends to make good on its announcements from December there is some legitimate concern that heeding to pressure from publishers and other rightsholders the Commission will propose only minimal updates to the existing system and instead suggest ‘solutions’ based on (extended collective) licensing.

In this situation LIBER, IFLA, EBLIDA, Europeana and Libraries2020 have joined forces and have issued a joint statement with a list of recommendations to adapt Exceptions to Digital and Cross-border Environments. In addition to arguing for updated exceptions the five organisations also point out that currently the rights granted by exceptions and limitations are routinely overridden by contracts and/or technical measures:

The library and broader cultural heritage community supports a balanced copyright framework that not only recognises citizens’ right to information, but also respects authors’ rights to fair remuneration for their work. However, libraries and audio-visual collections in particular are witnessing first-hand how fragmented implementation of exceptions under EU copyright legislation is an increasing barrier to cross-border access to content, preventing progress in particular for students and pan-European research projects. To compound this, in all but four European Member States (Belgium, Ireland, Portugal and the United Kingdom), contract terms can override existing copyright exceptions, which further undermines the goal of a coherent European copyright framework. […]

Protecting copyright exceptions from override by contract terms and technological measures is often overlooked and the cultural heritage institutions deserve a lot of praise for bringing this very important point up in the current debate.

Where it comes to updating copyright exceptions to bring them up to date and reflect technological developments in an increasingly digital society the common statement outlines 3 issues that must to be addressed by the upcoming reform proposal. According the the cultural heritage institutions the Commission needs to:

Introduce a robust harmonised and mandatory exception that allows Text and Data Mining (TDM) both for non-commercial and commercial purposes. Any type of stakeholder should be allowed to carry out TDM where content has been legally obtained.

Clarify the preservation exception (5(2)c) to provide a clear space for preservation by cultural heritage and research institutions, reflecting the use of digital technologies for preservation and the needs of born-digital and digitised works.

Update the scope of the existing exception for private study (5(3)n) and research to take into account current practices of accessing digitised collections, including on site consultation and remote access via (closed) networks and non-commercial cross-border document supply […] and to make available online for non-commercial purposes works in the collections of cultural heritage institutions that are not available via commercial channels, or otherwise actively managed by their rights holders;

While none of these demands are new, it is an important signal that organisations representing different parts of the cultural heritage sector forward them as part of a joint statement. This will make it more difficult for supporters of the status quo to play these the different parts of the sector against each other.

The cultural heritage sector is clearly a sector that has a lot to gain from a more modern copyright framework and it is good to see the the different organisations are coordinating and that they continue to demand real reform that will result in dramatically improved access to culture and knowledge for internet users, students and researchers.

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