Presentation on theme: "Copyright & digital cultural heritage: an update from the Dutch practice and abroad Annemarie Beunen, copyright lawyer National Library of the Netherlands."— Presentation transcript:
Copyright & digital cultural heritage: an update from the Dutch practice and abroad Annemarie Beunen, copyright lawyer National Library of the Netherlands Cultivate London, Tate Modern, 27 April 2013
Outline Copyright theory vs clearing methods in practice Our experience in the Netherlands with large-scale digitization projects Initiatives abroad Concluding remarks
How to deal with copyright? Two clearing methods accepted by European Commission: 1. Search for and ask permission beforehand of every individual right holder (cf copyright law in general and EU Orphan Works Directive). 2. Collective licensing with CMOs for members against payment. With extended effect: also for non-members (cf Scandinavian Extended Collective Licensing and Memorandum of Understanding on Out-of-commerce Works 2011). Recital 24 of Orphan Works Directive: ‘This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences, (…), collective management or similar arrangements or a combination of them, including for mass digitisation.’
2. Collective licensing with CMOs: 2011 Memorandum of Understanding on Digitisation and Making available of Out-of-commerce Works Non-binding declaration signed by international organisations of libraries, publishers, authors and CMOs. On books and learned journals that are out-of-commerce, in paper or digital form. Allows online use by CHIs via paying for a collective licensing with representative CMOs Extended effect: CMOs can licence also for non-members. Esp. suitable for large-scale projects as no diligent search is required. Right holders may opt out (e.g. after digitisation project is made widely known beforehand). Plea for cross-border use (internet is worldwide). CMOs can now only license for use within national boundaries (geo blocking: access for national IP addresses only). Requires: Well-functioning, transparant and representative CMOs. Legal basis for extended effect and cross-border effect.
Pros and cons of extended collective licensing Pros: No costs for diligent searches More works can be put online in a shorter time than after searching Cons CMOs grant licences of limited duration while CHIs work for eternity: CHIs must keep on paying. CMOs do not search for non-members; risk of undistributable money. Risk that right holders opt out.
French Act on out-of-commerce books 1 March 2012 Out-of-commerce (paper/digital form), published in France until 2000. Facilitates new commercial digital exploitation of full-text by commercial parties such as publishers. Unless initial publisher/author opts out within 6 months after book was included in an out-of-commerce register. Licence for commercial use to be given by a CMO, also for non- members (cf ECL). Distribution of licence fee 50/50% between author & publisher. Cons Unclear but probably: digital exploitation within France only. Putting books online not possible for libraries. For orphans for which no right holder has appeared after 10 yrs: access only onsite for patrons. To be expected: very few commercial parties interested in out-of- commerce books, otherwise they would still have been in commerce.
Germany Government recently has presented bills on: 1) implementing Orphan Works Directive 2) out-of-commerce works, with legal basis for ECL Bill on out-of-commerce works: –Applies to books and journals published before 1966 –To be registered in an out-of-commerce register –Authors and publishers must opt out within 6 weeks –Otherwise books may be digitised by non-commercial CHIs after paying a CMO for a licence (cf ECL and MoU). Bills expected to be passed before the summer holidays.
United Kingdom Government is considering legislation on: 1) Licensing of orphan works 2) Introduction of a legal basis for ECL (also for use by commercial parties)
Still more challenges, such as… Lending right for e-books. Enabling text & data mining for researchers. The ‘right to be forgotten’ in new EU privacy regulation vs. preserving the authenticity of historical sources like newspapers. Content which may be questionable from a criminal law per- spective (Nazi newspapers, extremist websites) vs. libraries must collect everything: pluriform information to reflect the diversity of society, on the basis of legal deposit legislation.