Enabling online access to out of commerce works held by cultural heritage institutions. An exceptions based approach PAUL KELLER 4th EUROPEANA LICENSING WORKSHOP, LUXEMBOURG

• Resolving issues related to cross border will be very difficult

• ECL requires well working collective management (cannot be assumed to be a given although ColSoc directive can be expected to improve the situation).

• difficult to implement for all types of collections (there are many collections that consist of types of works for which there is no tradition of (collective licensing)

• Means issuing licenses on behalf of creators without their consent.

Problems with the ECL approach

We are right in the middle of a fundamental transformation of how we preserve and provide access to cultural heritage.

The current EU copyright rules are not adapted to this situation. It is not sufficient that the existing exceptions enable cultural heritage institutions to…

… specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage (InfoSoc art. 5(2)c).

… use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals of works which are contained in their collections (InfoSoc art. 5(3)n).

… make available orphan works online after a per work diligent search for rights holders (limited to certain types of works).

We need a structural solution for providing online access to works that are not commercially available or easily available for licensing.

“Making it easier to the digitise out-of-commerce collections and make them available, including across the EU.”

CC BY (wikipedia user tpholland)

• An exception that allows them to make works from their collections available online that are not commercially available or otherwise actively managed (Europeana and others)

• An exception that allows them to make works in their collections available onsite, including via devices brought in by visitors (CENL)

• An exception allowing the electronic lending of books and other works in the collections of libraries (EBLIDA and others)

• An exception allowing Text and Data mining for commercial and non commercial purposes (LIBER and others)

What have CHIs asked for?

• allow public interest research organisations to carry out text and data mining of content they have lawful access to, with full legal certainty, for scientific research purposes;

• provide a clear space for preservation by cultural heritage institutions, reflecting the use of digital technologies for preservation and the needs of born-digital and digitised works;

• support remote consultation, in closed electronic networks, of works held in research and academic libraries and other relevant institutions, for research and private study;

Exceptions under consideration

Different spheres of circulation of cultural works

ensure that cultural heritage that is not in commercial

exploitation anymore remains available for the public

primary exploitation of creative works (needs to be protected from unfair competition)

Publishers and Creators

Different spheres of circulation of cultural works

ensure that cultural heritage that is not in commercial

exploitation anymore remains available for the public

primary exploitation of creative works (needs to be protected from unfair competition)

Cultural Heritage Institutions Publishers and Creators

Main challenge for today

Work on language for an exception that allows cultural heritage institutions to fulfill their role online without impacting the activities of rights holders, publishers and other commercial intermediaries.

Thank you Kennisland supports cultural heritage institutions in advocating for copyright rules that allow them to open up their collections online

Paul Keller pk@kl.nl

This presentation is licensed under a Creative Commons Attribution license. - Portrait foto: Giorgos Gripeos CC BY