Europeana and the accessibility of digital cultural heritage

Europeana and the accessibility of digital cultural heritageAuthor’s Rights and the online disclosure of cultural heritage collections Barbara Dierickx & Rony Vissers KBR, Brussels December 16 2009

Europeana and the accessibility of digital cultural heritagePACKED vzw = Platform for the Archiving and Conservation of Audiovisual Arts Packed vzw is the national Belgian coordinator of ATHENA project ‘Access to Cultural Heritage Networks Across Europe’ (http://www.athenaeurope.org) Goal of ATHENA: - Research on metadata standards, semantics, multi-linguality, copyright… - Deliver content from museum collections to Europeana Packed vzw is the leader of a work package on intellectual property rights and the online disclosure of digital museum collections (WP6)

Europeana and the accessibility of digital cultural heritageDigitisation - Offers new opportunities for the preservation of cultural heritage content - Is necessary for the distribution of cultural content through the world wide web <-> Author’s RightsDigitisation = Reproduction + uploading to the web = making available -> This is an exclusive rights of the authorContent in collections of museums, libraries, broadcasting organisations, ... = protected by intellectual property rights of a third person (author, performing artist, producer, …) -> Permission for use of the work

Europeana and the accessibility of digital cultural heritageWhat is author’s right? = Kind of monopoly awarded to the creator, i.e. exclusive right to perform certain actions with regards to original creations (making it public, reproduction, ...) > Materialised form (not ideas) + originality (characteristic for the creator) > Moral rights + economic rights > Limited in time: 70 years after death of the creator > Books, music, photographs, films, paintings, geographical maps, computer software... Protection is the result of the creation, no special action required What is not protected? Public domain: 70 years after death, not original Object in collection of institution ≠ institution manages all the rights

Europeana and the accessibility of digital cultural heritageMoral rights + economic rights Moral rights: - Right to decide when and how to make public - Right to paternity (name, pseudonym, anonymous) - Right to integrity (no changes, no damage of name and honour) -> Not transferable Economic rights (exploitation): - Right to make reproductions - Right to control the distribution - Right to public communication, display, performance ->Transferable

Europeana and the accessibility of digital cultural heritageWho is the author? Author = the natural person who has created the work > but he can transfer some of his rights to his employer, publisher, … Presumption: the author is the person whose name is mentioned on the work, unless otherwise provenAuthor’s right (continental countries like Belgium) - Emphasis on author (natural person) - Moral rights - Exceptions: strictly describedCopyright (Anglo-Saxon countries like U.K. and U.S.) - Emphasis on investment - Moral rights almost non-existing - Exceptions: ‘fair use’EU Copyright Directive <-> national practices

Europeana and the accessibility of digital cultural heritageNeighbouring Rights > Not a protection of the work itself but of a performance - Musicians, actors, … (performing artists) - Producers - Broadcast organisationsParadox Author’s Rights stimulate cultural production, but create at the same a monopoly position

Europeana and the accessibility of digital cultural heritageDo all works enjoy protection? Originality? Original photo = own intellectual creation of the author > Picture of museum object or reproduction of archival document = original? Goal of a reproduction: truthful, realistic and technically perfect representation Two-dimensional: painting, drawing, document Three-dimensional: statue, installation, building Lack of intellectual input photographer <-> ‘sweat of the brow’ (UK) Belgium: grey zone without legal jurisprudence

Europeana and the accessibility of digital cultural heritageExceptions 1 A list of exceptions: citation, caricature/pastiche, temporary/technical reproduction, education, … Our interest = exceptions to the benefit of libraries, archives, museums Certain reproductions & forms of disclosure are allowed -> under strict conditions Example: reproduction for preservation - Belgium: reproduction allowed “in the framework of and justified by the preservation of the cultural and scientific patrimony”- Example: the Netherlands - Italy- Example: sound recording British Library

Europeana and the accessibility of digital cultural heritageExceptions 2Example: making available through a closed network - Physical limitation <-> opportunities of internet + ambitions of Europeana - Example: Dutch Filmmuseum and CinematekOther exceptions: - Example: reproduction and communication to the public “for the purpose of advertising, for public exhibitions or public sales of artworks, in as far as it is necessary for the promotion of those events, not including any other commercial use” is allowed without explicit permission. But: the archiving of a webpage?

Europeana and the accessibility of digital cultural heritagePermission for use: license agreement 1 Rights holder grants permission for an agreed kind of use (in a specific context, under # conditions, …) E.g. for the online display of a work Negotiating an agreement = huge tasks for big collections with many author = severe financial implications for heritage institutions in case the author is represented by a collecting society E.g. SABAM - One-stop-shop for author’s rights <-> search for rights holder - Lower levies for heritage institutions - Remuneration is obligatory <-> individual contact with rights holder

Europeana and the accessibility of digital cultural heritagePermission for use: license agreement 2 Example: Royal Institute for Cultural Heritage (KIK/IRPA) Mission = develop and manage a scientific photographical inventory of art objects in Belgium Website: metadata + thumbnail E.g. ‘Ensor’ or ‘Magritte’: artwork copyright protected Only display of metadata possible, no thumbnail Negotiating with collecting societies through alliance of federal scientific institutions = solution?

Europeana and the accessibility of digital cultural heritagePermission for use: license agreement 3 Permission for online disclosure <-> common practice of cultural heritage institutions: physical disclosure of collection never implied getting permission -> online disclosure is seen by the institutions as an extension of this practice License agreements = challenging / exceeding the possibilities of cultural heritage institution Concluding new license agreement: broad permission Display of previews = free of copyright? - Low resolution / cropping <-> ‘valuable’ re-use? - Thumbnail / cropped image as moral rights infringement?

Europeana and the accessibility of digital cultural heritagePosition of the author > Works created as employee: rights held by the creator or rights held by the employer? Rights hold by the creator. The transfer of rights to employer is since 1994 only possible by an explicit and written agreement. Online images: - Was photographer a freelancer / contractually employed? If the photographer was an employee, was there a transfer of rights to the employer? - Is there copyright on the photographed object itself?

Europeana and the accessibility of digital cultural heritageWhat does copyright mean for orphan works? Orphan work = unknown and untraceable author -> permission for use can not be obtained -> no reproduction or online display possible Heritage field demands legal exception for orphan works: permission on condition of reasonable remuneration to rightsholder in case of identification Europe: - Memorandum of Understanding on Orphan Works - High Level Expert Group ‘Final Report of the Copyright Subgroup’

Europeana and the accessibility of digital cultural heritageWhat does copyright mean for orphan works? Heritage institutions: - In practice it very rarely occurs that a rightsholder of a presumed orphan work present himself with a claim - An extensive search for a rightsholder implies many costs given the current circumstances ‘Notice and takedown’ policy: prevents claims but does not guarantee the continuous online existence of the content

Europeana and the accessibility of digital cultural heritageWhat does copyright mean for orphan works?Report ‘In From The Cold’326 cultural heritage institutions (museums, libraries, archives, galleries)Average of 92% of orphan works in collection5 to 10 percent of works; archives 21 to 30 percentTime-consuming search for the rights holder: “On the project, it took two people three years full time to work on the copyright for 40,000 works.” “As part of their Archival Sound Project, the British Library identified 299 rights holders whose permission was required. An analysis of the project revealed that: ‘A total of 150 hours was spent by a freelance researcher, and 152 hours was spent by British Library staff on seeking permission, which resulted in eight permissions being received.’”

Europeana and the accessibility of digital cultural heritageThe solution? Different opinions …-‘opt-out’ policy: placing images online without permission. Complaint ofrightsholder: content is taken offline immediately -> Investment in digitisation without guarantee that result will stay online- Avoiding all risks: clearing all rights yourself -> Expensive and labour-intensive way of working- Work with collecting societies -> Efficient and user-friendly model on paper but lack of transparency, associated costs and limited flexibilityHeritage sector demands a new legal exception in copyright that will allow forfree disclosure of protected works from their collection through the internet

Europeana and the accessibility of digital cultural heritageThe solution? Government as facilitator …Report ‘Auteursrecht in de digitale samenleving’Responsibility of the cultural heritage sector: need for coordinated definition ofposition within different cultural subsectors, through platform organisations orinterest groups -> Get a stronger voice as a stakeholder in the copyright policy on European and Belgian levelCreation of an external consultation body: Flemish Cultural government asideal initiator for the instalment of a consultation body on copyright in order tofacilitate the dialogue -> creation of a standard contractual licensing model that can be supported by rights holders as well as cultural representatives

Europeana and the accessibility of digital cultural heritageThe solution? Europe(ana) …Demand for such an exception has been expressed to the EuropeanCommission in reaction on ‘Green Paper on Copyright in the KnowledgeEconomy’ and consultation ‘Europeana: next steps’Europeana ‘Public Domain Charter’: work that is in the public domain in analogform should retain this status after digitisation Public Domain = works on which term of protection for copyright has expired + ‘essential commons of information’ATHENA: Guidance of partner institutions within current legislative frameworkin search of clearing rights on objects as much as possible -> online toolSeptember 2010.

Europeana and the accessibility of digital cultural heritageNew trendsCurrent legislative framework: - No all-embracing exception to CR for all forms of digitisation, preservation and disclosure that cultural heritage institutions would want to carry out. - No uniform package of guidelines on digitisation, disclosure and distribution of digital cultural heritage.Consequence: cultural heritage institutions have to figure out for themselveswhat exceptions copyright grants them, and under which conditions they canbe called upon.

Europeana and the accessibility of digital cultural heritageNew trendsDiscrepancy between legal regulations and trends in practice: ‘print-on-demand’, digital preservation, digital libraries and aggregators of culturalheritage …Side of the (cultural) user: complexity and lack of transparency of legislation fornon-jurists leads to insecurity on the # of permissions that are (not) requiredfrom # rightsholdersScope of legal exceptions is too little knownEmerging from the cultural heritage field + fuelled by organisations such asWikimedia Foundation and Creative Commons: new ways of digital heritagedistribution to a global audience.

Europeana and the accessibility of digital cultural heritageNew trendsIn return for releasing digital content -> return for the participating institution;extension of network, connecting to previously unknown audience, matching ofsources to which the institution previously had no access.Wiki Loves ArtBundesarchiv + WikipediaNationaal Archief + Flickr CommonsOpen Beelden

Wiki Loves Art Museums open their doors to visitors during one month so they can take pictures of the collection. Pictures are displayed on Wikipedia under a CCLicense, so articles can be enriched with these images. Website: http://www.wikilovesart.nl/

Bundesarchiv + Wikipedia The German Bundesarchiv cooperates with Wikimedia Germany. 100.000 images from the archive are made available on Wikipedia under a CClicense. In exchange, Wikimedia matches the images of the Bundesarchiv with content from the German National Library and Wikipedia. Website: http://commons.wikimedia.org/wiki/Commons:Bundesarchiv

Nationaal Archief + FlickrCommons The Dutch Nationaal Archief made a part of its photo collection worldwide available through Flickr The Commons, an initiative that offers public institutions a common platform to share their photo collections with a large audience, in order to expand their knowledge about the collections with information from the website visitors. Website: http://www.flickr.com/photos/nationaalarchief/

Open Beelden Open Images is a new media platform that offers access to a selection of archival materials for creative re-use. Fragments from audiovisual collections may be remixed here into new works. Website: http://www.openbeelden.nl

Europeana and the accessibility of digital cultural heritageCase: newspaper digitisation at the Royal Library of BelgiumProgramme for the digitisation of collections of federal scientific institutionsRoyal Library and Studie- en documentatiecentrum Oorlog en HedendaagseMaatschappij (SOMA) started in 2007 with the digitisation of Belgian press from1830 to 1950 + clandestine and censored press from both world wars. … Restricted by copyright?Thank you for your attention barbara@packed.be rony@packed.be http://www.packed.be

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Europeana and the accessibility of digital cultural heritage

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