Poland restricts access to digitized cultural heritage

Soon the most valuable digital works of art and culture may be available all around Europe, free of charge, licenses, watermarks, and in open, machine-readable formats.  Together with their metadata they can be used to not only promote rich heritage of our culture, but also to build innovative applications, web services and boost the creative economy all across the Europe. This is the promise made by the European Union, as contained in the new Directive on the re-use of public sector information.

But establishing a single framework, which enables the cross-border offer of products and services is not an easy thing. According to the last report of the PSI Group, Member States are struggling with many challenges while implementing the Directive into domestic law. As might be expected, the correct choice of licensing, charging and redress mechanisms are especially hard to solve.

In the recent Communia policy paper on the re­use of public sector information in cultural heritage institutions, we were  concerned that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. Work on the implementation of the Directive into Polish law shows that this scenario can happen in Poland.

In November 2014, Poland has published a draft proposal of the new bill, which assumes that documents held by cultural heritage institutions are within the scope of the Directive only if they are in the public domain, either because they were never protected by copyright or because copyright has expired.

The problem, therefore, lies in the fact that the remaining resources, even if the institution owns the copyright, have been excluded from the scope of the proposed law. The Ministry of Culture and Digital Heritage, which has been in favour of this very narrow reading of the Directive, believes that it should not apply either to works created by employees of institutions or to works, for which third parties have transferred rights to cultural institutions. What does this mean in practice?

Most importantly, re-use rules will not apply to such important information as descriptive metadata, bibliographic and catalog data. Without metadata and descriptions heritage resources will become useless for those wanting to re-use digital cultural resources. Similarly, public cultural institutions – for example modern art galleries – will still be able to restrict access to the information that they hold, even though it has been produced with public funds.

And such an implementation is in our opinion [see our policy paper p. 4-6]  contrary to the very principle that inspired both the 2003 and 2013 Directives and could lead to the creation of unnecessary hurdles to the re­use of public sector information.

What is maybe even worse, Polish cultural institutions will also be able to impose additional conditions – restricting commercial use (promotion or advertising) or allowing only certain forms and scope of reuse. Even for works that are in the public domain.

This implementation has the combined support of collective management organizations, museums (which in general are much more conservative than libraries in their approach towards digitization and sharing of cultural objects) and the Polish Ministry of Culture and Digital Heritage. One of the concerns raised is that the private sector will be able to build competitive services, museum catalogues or images banks, to those provided by the museums. But wasn’t it the idea of new PSI Directive? In general, it is surprising to see these organizations favour an approach that limits as much as possible reuse of cultural works – since such sharing is explicitly defined as part of their public mission.

All around the world, public domain is treated as the information that is free from intellectual property barriers. Anyone can use and reuse it, remix, combine and translate without obtaining permission. For commercial and non-commercial purposes. But no one can ever own it. In theory. Observing the legislative process in Poland, it becomes clear that in some countries the implementation of the new PSI Directive can indeed not only do more harm than good with regard to access to cultural heritage, but even threaten the idea of the public domain.

We hope that ultimately the Ministry of Administration and Digital Affairs – which is responsible for drafting the bill – will propose a law that supports a modern approach to digital cultural heritage and protects the Public Domain.  And that with time the Ministry of Culture and Digital Heritage will adapt Poland’s cultural policy as well so that allowing access and reuse is seen as part of the public mission, and not as threat to culture.

Europe’s cultural heritage institutions deserve better

For those of us looking forward to copyright rules that enable European cultural heritage institutions to provide online access to their collections, two important things happened last week: on Wednesday 29th October, the Orphan Works directive (OW directive) came into force and on Saturday 1st November, the new European Commission headed by Jean-Claude Juncker assumed office.

The first event marks the failure of the existing system, while the second one is reason to give us hope for a more meaningful modernisation of the European copyright system.

The fact that the current system does not take into account the needs of cultural heritage institutions is painfully illustrated by the Orphan Works directive. After years of legislative wrangling, Europe came up with a ‘solution’ for the problem of orphan works that requires cultural heritage institutions wanting to make orphan works available to undertake complicated searches for rights holders, before they are allowed to publish them. In most cases, the resources required for such searches are completely out of balance with the cultural and economic value of the work. This means that the Orphan Works directive may be a useful tool for making small numbers of high profile works available, but not as an enabler of mass digitisation projects.

The fact that the OW directive ended up as a crippled tool that fails to address the problem it was designed to answer (enabling mass digitisation of collections), is the result of a number factors: strong pressure from rights holders and their representatives to preserve the underlying principles of copyright even in a situation where they do more good than harm; the lack of coordinated advocacy efforts from cultural heritage institutions at the European Level; and a weak European Commission that was split on copyright.

With regards to the last point there is reason to hope that the situation is changing. The Juncker Commission that came into office on the first of November has made the modernisation of copyright one of its top priorities. In his mission letters to the Commissioners in charge of a connected Digital Single Market, Juncker made it clear that he expects his team to come up with ‘ambitious legislative steps’ towards ‘modernising copyright rules in the light of the ongoing digital revolution’ within the next six months.

In other words, the time to start fighting for copyright rules that enable cultural heritage institutions to properly function online is now!Continue reading

COMMUNIA policy paper on digitization agreements

The aim of this policy paper is to make policy recommendations for cultural institutions to preserve the Public Domain when using digitization services provided by private entities. This becomes particularly relevant in the context of the 2013 Public Sector Information (PSI) Directive which adds Museums, Libraries and Archives in the list of Public Sector Bodies (PSBs) that have to make their information reusable.

The Public Domain ensures the free dissemination of knowledge and provides everyone with the potential to access and create new works based on previous works. Thus, all Public Domain works should be free for everyone to use and reuse. Yet, as many cultural heritage institutions are entering into contractual agreements with third parties for the digitization of Public Domain works, there are serious concerns regarding the conditions of access, use and reuse of the resulting digitized copies.

Ideally, digital copies of Public Domain materials would be made immediately and freely available to the public. However, in practice, many of these public-private partnerships impose contractual restrictions that limit access and re-use of Public Domain materials. These restrictions have the same effect as introducing a new proprietary right over the digitized copies of Public Domain material, thereby substantially limiting the use and reuse of content that belongs to the common cultural heritage by subjecting it to a requirement of prior authorisation.

This risk is further increased with the introduction of the PSI 2013 regime, which allows the conclusion of exclusive agreements between private entities and PSBs under restrictive terms and with a potential perpetual validity.

Continue reading

Communia condemns the privatization of the Public Domain by the Bibliothèque nationale de France

Last week the Bibliothèque nationale de France (BnF) concluded two new agreements with private companies to digitze over 70.000 old books, 200.000 sound recordings and other documents belonging (either partially or as a whole) to the public domain. While these public private partnerships enable the digitization of these works they also contain 10-year exclusive agreements allowing the private companies carrying out the digitization to commercialize the digitized documents. During this period only a limited number of these works may be offered online by the BnF.

Photo by Scarlet Green (CC-BY)

Together with La Quadrature du Net, Framasoft, SavoirsCom1 and the Open Knowledge Foundation France COMMUNIA has issued a statement (in french) to express our profound disagreement with the terms of these partnerships that restrict digital access to an important part of Europe’s cultural heritage. The agreements that the BnF has entered into, effectively take the works being digitized out of the public domain for the next 10 years.

 

The value of the public domain lies in the free dissemination of knowledge and the ability for everyone to access and create new works based on previous works. Yet, instead of taking advantage of the opportunities offered by digitization, the exclusivity of these agreements will force public bodies, such as research institutions or university libraries, to purchase digital content that belongs to the common cultural heritage.

 

As such, these partnerships constitute a commodification of the public domain by contractual means. COMMUNIA has been critical of such arrangements from the start (see our Public Domain Manifesto) and our Policy Reccomendations 4 & 5. More interestingly these agreements are also in direct contradiction with the Public Domain Charter published by the Europeana Foundation in 2011. In this context it is interesting to note that the director of Bibliothèque nationale de France currently serves as the chairman of the Europeana Foundation’s Executive Board.

 

Communia comments on Library of Congress Third Party Digitization Initiatives


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 (PDF).

 

UK government proposal to modernize copyright underlines failure of EU approach to hostage works

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

‘Orphan works’ compromise fails to deliver

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: Orphan works directive in it’s current form creates more harm than good

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:

  1. 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)
  2. 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
  3. 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.
  4. 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.

Cultural heritage institutions concerned over proposed European orphan works directive

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 Frontiers highly critical of proposed orphan works directive

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.