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.