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Maintaining_a_healthy_and_thriving_Public_Domain Maintaining a healthy and thriving Public Domain - exploring the notion of originality and copyright when digitising analogue works

The Public Domain is the material from which society derives knowledge and fashions new cultural works. Having a healthy and thriving Public Domain is essential to the social and economic well-being of society. However, during the act of digitisation, organisations or the person performing the act of digitising sometimes claims copyright on the digitised work, effectively taking it out of the public domain. European copyright law does not give a clear answer if this is allowed or not as this notion of ‘originality’ is hard to define and leads to a lot of discussions. 

During this workshop we want to explore the this further and provide a series of guidelines for cultural heritage institutions when they start a digitisation program. The workshop will bring together representatives from cultural heritage institutions, legal experts and open data advocates to address the topic and come to a common approach how to deal with this issue.

Session hashtag: #OKFestPD 
Facilitators: Paul Keller (Kennisland), Joris Pekel (Europeana) and Lieke Ploeger (Open Knowledge)
http://okfestival2014.sched.org/event/e10b8d9ba5463f9aa761f7fff160b46b#.U8ZluR9khgE


Notes

This session is specifically about CULTURAL DOMAIN and DIGITISATION OF OUT OF COPYRIGHT ITEMS


 Paul Keller (Kennisland) @paul_keller

Open cultural data activists usually work on convincing large public institutions (rather than big companies) to open up their content. They still form a minority within the cultural heritage field - one of the main problems is dealing with a majority of people that does not know about copyright law and that does see the relevance of the issue. The complex mechanics and detail of international and national copyright law not understood by many people, even IP lawyers in heritage organisations.

Europeana has achieved a lot, but approx 2/3rd of assets in Europeana are not public domain / cc licensed

Cultural Heritage organisations not focussed on getting rich.  May be some desire to increase income, but it's not primary driver.

Economic reality of heritage organisations puts (especially) smaller organisations in a difficult position: costs of digitisation and provision of online access is perceived as requiring some return on investement, often with private partner (such as Google with National Library Of Austria) in a contract that places commercial exploitation of rights to use digitised assets solely with private funder for specific period (in this example, 15 years).  This is an understandable compromise from a local perspective, but damaging to wider use. Compromises however are important when you want to work with institutions. 

A new rights statement was added to Europeana as of January 2014 to identify material from public-private partnerships in digitization: 'Out of copyright - non commercial re-use'. <http://www.europeana.eu/portal/rights/out-of-copyright-non-commercial.html>

QUESTION - is this not a breach of wider copyright law?
Is this imperfect progress better than not digitisation?  Will in the future these assets move closer to proper Public Domain?  
Positive response from public when organisations open up their is a powerful driver of future similar actions
Often a first more restrictive try-out step results in freer licenses at a later point - we should not always see it as a bad development: it could be a step towards more openness. For example, Wellcome Library example - opening up image library under CC-BY was seen internally as a first step.

Discussion points
  1. If we want to be effective in our advocacy, we need to know what we are talking about [there is much variation across countries in copyright law]. As a community, we need to understand the complexities better.
  2. We need to develop a shared understanding of the tradeoffs that we are willing to accept (or not)


Joris Pekel (Europeana)  @jpekel

Explains licensing options in Europeans, and rights statements provided by Europeana.  Europeana require clear licensing info is provided by asset owner, and that this info matches that provided on owners own website.  

United Kingdom seem particularly poor at using 'All Rights Reserved' licensing. Of 2.1 million UK images in Europeana, only 1767 are marked as Public Domain / CC0.

Numerous institutions placing CC licenses on material that arguably should be Public Domain.  Many organisations (within same country) use very varied licenses for very similar material. Their domain of expertise is not copyright, so provision of clear common standards and guidelines may have a big impact in consolidating variation and promoting best practice

Example of the Gallica (French National Library) terms of use which use the 1978 law to restric resusage <http://gallica.bnf.fr/html/conditions-use-gallicas-contents>

Thomas Margoni (University of Amsterdam, IViR Institute for Information Law)   t.margoni@uva.nl

Thomas Margoni - Digitising Cultural Heritage

Definition of the problem:

Act of transforming analogue to dig creating new rights. Depends on the process employed: "machine", human amateur, artistic photography. Perfect represemtation of the "original" should not

Research Question

some prelinary results 


These guidelines could (should?) be included in future contracts between collection holders and any third party performing digitisation

IViR have started producing country-specific case law interpretations. Intend to create graphical map of Europe representaion of what you can do in each country. 

Programme with also:

Question: Will you send the results to the EU with a request for different legislation?

Idea originating from the OpenGLAM Advisory Board: creating a scorecard to show the level of openness (in analogy to the 5 stars of open data). 

Audience feedback:

Discussion

Question: In Europeana, are the rights statement provided in a Machine Readable format (such as http://www.w3.org/community/odrl/)

Question: isn't this a black and white discussion? the legal statements are quite clear. doesn't it therefore call for a black & white approach? Beeld & Geluid uses the argument: we're following the law
Question:  re scoring institutions, i like the idea, but need to be aware of cultural values - many indiginous gelleries will never be able to participate.  another example - most of world's cultural assets are in global south, but rights holder are in the global north... there needs to be more legals resources in institutions to assess copyright. There are a lot of different mediums (sound recordings etc). that is something to think about. institituions are so cautious because they don't know in what way their material is dealt with. How about make sure that you have awards for best practices?
Question: in the bar graph, the last two bars, what was that about?
Question: The European PSI directive will have a big influence on public domain and copyright. In Poland, after the first consultation, we saw there were a lot of problems with licenses and other problems. How can we advocate for the public domain?