europeana and the accessibility of digital cultural heritage

Europeana and the accessibility of digital cultural heritage

Author’s Rights and the online disclosure of cultural heritage collections

Barbara Dierickx & Rony Vissers

KBR, Brussels

December 16 2009


PACKED 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)

Digitisation- 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 Rights

Digitisation= Reproduction + uploading to the web = making available -> This is an exclusive rights of the author

Content 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



What 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 originalObject in collection of institution ≠

institution manages all the rights


Moral 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


Who 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 proven

Author’s right (continental countries like Belgium)- Emphasis on author (natural person)- Moral rights- Exceptions: strictly described

Copyright (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


Neighbouring Rights

> Not a protection of the work itself but of a performance- Musicians, actors, … (performing artists)- Producers- Broadcast organisations

Paradox

Author’s Rights stimulate cultural production, but create at the same a monopoly position


Do 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, documentThree-dimensional: statue, installation, building

Lack of intellectual input photographer <-> ‘sweat of the brow’ (UK)

Belgium: grey zone without legal jurisprudence


Exceptions 1

A list of exceptions: citation, caricature/pastiche, temporary/technical reproduction, education, …

Our interest = exceptions to the benefit of libraries, archives, museumsCertain 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


Exceptions 2

Example: making available through a closed network- Physical limitation <-> opportunities of internet + ambitions of Europeana- Example: Dutch Filmmuseum and Cinematek

Other 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?


Permission 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



Example: Royal Institute for Cultural Heritage (KIK/IRPA)

Mission = develop and manage a scientific photographical inventory of art objects in Belgium

Website: metadata + thumbnailE.g. ‘Ensor’ or ‘Magritte’: artwork copyright protectedOnly display of metadata possible, no thumbnail

Negotiating with collecting societies through alliance of federal scientific institutions = solution?



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?


Position 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?


What 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’



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



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 percent

Time-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.’”


The solution? Different opinions …

-‘opt-out’ policy: placing images online without permission. Complaint of rightsholder: 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 flexibility

Heritage sector demands a new legal exception in copyright that will allow for free disclosure of protected works from their collection through the internet


The solution? Government as facilitator …

Report ‘Auteursrecht in de digitale samenleving’

Responsibility of the cultural heritage sector: need for coordinated definition of position within different cultural subsectors, through platform organisations or interest groups

-> Get a stronger voice as a stakeholder in the copyright policy on European and Belgian level

Creation of an external consultation body: Flemish Cultural government as ideal initiator for the instalment of a consultation body on copyright in order to facilitate the dialogue

-> creation of a standard contractual licensing model that can be supported by rights holders as well as cultural representatives


The solution? Europe(ana) …

Demand for such an exception has been expressed to the European Commission in reaction on ‘Green Paper on Copyright in the Knowledge Economy’ and consultation ‘Europeana: next steps’

Europeana ‘Public Domain Charter’: work that is in the public domain in analog form 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 framework in search of clearing rights on objects as much as possible -> online tool September 2010.


New trends

Current 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 themselves what exceptions copyright grants them, and under which conditions they can be called upon.


New trends

Discrepancy between legal regulations and trends in practice: ‘print-on- demand’, digital preservation, digital libraries and aggregators of cultural heritage …

Side of the (cultural) user: complexity and lack of transparency of legislation for non-jurists leads to insecurity on the # of permissions that are (not) required from # rightsholders

Scope of legal exceptions is too little known

Emerging from the cultural heritage field + fuelled by organisations such as Wikimedia Foundation and Creative Commons: new ways of digital heritage distribution to a global audience.


New trends

In return for releasing digital content -> return for the participating institution; extension of network, connecting to previously unknown audience, matching of sources to which the institution previously had no access.

Wiki Loves Art

Bundesarchiv + Wikipedia

Nationaal Archief + Flickr Commons

Open Beelden

Wiki Loves ArtMuseums 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/

http://www.wikilovesart.nl/

Bundesarchiv + WikipediaThe 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

http://commons.wikimedia.org/wiki/Commons:Bundesarchiv

Nationaal Archief + FlickrCommonsThe 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/

http://www.flickr.com/photos/nationaalarchief/

Open BeeldenOpen 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

http://www.openbeelden.nl/


Case: newspaper digitisation at the Royal Library of Belgium

Programme for the digitisation of collections of federal scientific institutions

Royal Library and Studie- en documentatiecentrum Oorlog en Hedendaagse Maatschappij (SOMA) started in 2007 with the digitisation of Belgian press from 1830 to 1950 + clandestine and censored press from both world wars.

… Restricted by copyright?

Thank you for your attention

[email protected]@packed.be

http://www.packed.be

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europeana and the accessibility of digital cultural heritage

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