One of the issues that has been glaringly absent from the Commission’s proposal for Copyright in the Digital Single Market Directive is better protection of the Public Domain from Cultural Heritage Institutions who are trying to appropriate Public Domain works that they have digitized.
Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.
The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them.
Even though the Commission has missed the opportunity to introduce clear rules protecting the Public Domain, a number of Members of the European parliament have now submitted amendments that aim at preventing further privatization of the Public Domain through digitization (or other means).
MEPs Julia Reda, Catherine Stihler, Evelyn Regner, Lidia Joanna Geringer de Oedenberg, Victor Negrescu, Sergio Gaetano Cofferati, Josef Weidenholzer, Isabella Adinolfi, Laura Ferrara, David Borrelli and Dario Tamburrano have all proposed the addition of the following (or very similar) language to the text proposed by the Commission:
Member States shall recognise that once a work is in the public domain because the copyright and related rights therein have expired or never existed, faithful reproductions in full or in part of that work, regardless of the mode of reproduction and including digitalisation, shall equally not be subject to copyright or related rights.
Bonus points go to MEPs Evelyn Regner and Josef Weidenholzer who have also proposed to rename Article 5 into “Preservation of cultural heritage and safeguarding the Public Domain“.
Even though these amendments have been tabled by a relatively large group of MEPs it is far from certain that they will make it into the European Parliament’s final report. We hope that during the ongoing deliberations more MEPs will realize the importance of closing these loopholes which allow cultural heritage institutions to keep works for which the original copyright term has long expired out of the public domain.