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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.
- ignorance is the main problem that you deal with. being righteous doesn’t work. try to help organisations understand why their line of reasoning is wrong. assume that it is not ill-intended.
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?
- ANSWER - regardless of legality (which appears unclear) , the social norm of respecting the request of digitisating partnership to not break the spirit of the agreement tends to prevail.
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
- 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.
- 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:
- Cultural Heritage is largely analogue
- to make it widely available needs digitisation and free access via internet
- what are legal (or at least copyright) related obstacles?
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
- when does digital reproduction of existing (protected or unprotected) materials give rise to new subject matter proteced by copyright and or related rights?
- sub-questions:
- what are the underpinnings of legal status of material: mere objects (not works), works (copyrighted or in PD), material protected by related rights?
- how the different processes and techniquess of digitisation can inf the resulting legal status?
- [Thomas described methodology]
- questionnaires that were answered by a network of correspondents of practicing or academic lawyers
- 2 parts of the questionnaire:
- general questions on copyright fundamentals
- multiple choice questions on specific acts of digitisation
- specific focus on neighbouring rights: there are some countries in which photographs are protected not by copyright but by a smaller related right.
- Three types of digitisation:
- - Automated scanning - ie Google scanning complete library collections
- - Photographs created by artists or collection owner employee
- - In between...ie manual with some automated processes
some prelinary results
- mere digtisation does not create new rights, they are considered reproductions
- creation of artistic photographs create new subject matter (original or derivative)
- simpe photohraphs can be relevant to acts of simple digitisation
- the main problem is to define level of originality that needs to be added to digital representation to have something new
- usually the time the scope of this kind of digitisation is to accurately reproduce the original, so no space for added originality
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:
- produce academic papers
- put results and tools on website
- extend geographicl coverage
- extend research questions
Question: Will you send the results to the EU with a request for different legislation?
- answer from Thomas: Probably not as that will be a long and not so fruitful process, there is more value in getting in touch with cultural institutions directly
- answer from Paul - better to show people how to overcome the restrictions and help insitituions to under stand that they can waive these rights if they choose to
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).
- Gold standard would be the Rijksmuseum release (high quality, no restrictions, good metadata)
- Worst case scenario: institution claiming copyright with restrictions for PD material
- There is a number of layers in between these two options
Audience feedback:
- Alongside with this there should be an offer of assistance
- Important to explain to institutions to explain why the gold standard would be in their benefit
- Grading system could stop institutions from opening up in the first place
Discussion
- Best way to go about it is through personal contact, network (Paul)
- Europeana's take: right's statements to be as accurate as possible, and at the same time to push the sector to get the right's statements correctly. easier to work with those with the better metadata. sometimes institituions give very low quality images, but in the public domain (Joris)
- even a wrong rights statement is better than none. because it allows you to start a conversation. It is more difficult to get a discussion about the public domain when you're in the grey zone (Paul)
Question: In Europeana, are the rights statement provided in a Machine Readable format (such as http://www.w3.org/community/odrl/)
- Answer - yes.
- we have to accept some level of disagreement between what they do on their own website and what Europeana does
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
- Answer: i've learned over time that it is not a binary switch. what i thought of before as wrong i now see in a more grey situation. it depends on the type of organisation. are they willing to talk about it? we've had organisations that did not even want to engage in discussion, and when we threatened to take their stuff down, they started to engage in conversation.
- Choose a pragmatic form of activism. a not very good form is to put works on wikimedia for example and publicly state that it is in the public domain. that doesn't work
- Answer from Sanna Marttila: I have take a different approach by focusing on getting institutions to open up smaller parts of their collection as a start
- there is also always the desire by organisations to get noticed.
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?
- Answer: Good feedback. We can only make this stuff in an environment which you can understand. Scorecard should be from 'good' to 'best' not 'worst to best'. We're trying to understand the European environment only.
- Disagree at the point that if there's more money to invest it in copyright holders. Dont pay for people to understand an absurd copyright system. Make the money go to digitisation efforts and the rest into lobbying efforts. Do not play their game, but try to change the rules. It's no worth investing in a broken 19th century system.
Question: in the bar graph, the last two bars, what was that about?
- Answer: stuff in the Europeana database that we didn't like. Ireland census records examples, it did not have good metadata
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?
- Answer: how many people understand the implication of PSI directive on cultaral heritage? [no one]. Not even Thomas, and thats his job! this demonstrates that we need to understand the issues before activism in these areas.
- Thomas Answer - full PSI legislation is not right level of detail for us to address - need to find specific elements relating to copyright in cultural heritage sector to focus on