1. CULTiVATE Copyright & collections online Annemarie Beunen Copyright lawyer, National Library of the Netherlands Lecturer, Law Faculty of Leiden University 30 October 2011

2. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Putting ©works online Touches upon the author’s exploitation rights: 1. Digitisation = reproduction 2. Putting online = communication to the public Ownership of physical works does not confer © in them! Copyright challenges: Basic rule: every use of a ©work requires the author’s permission beforehand. Copyright acts do not contains an exception which allows putting collections on the internet. So: permission of all right holders is required beforehand (= opt in-system of ©).

3. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Physical world Special exceptions enable a library to perform its statutory tasks in the public interest: Libraries may lend books to the public against a lending right fee for right holders (art. 12 subs. 3 DCA). KB and libraries of educational and research institutions are excluded from paying this fee (art. 15c). Libraries, museums and archives may exhibit their own collection and items on loan (art. 23).

4. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Digital world As a result of the EU Copyright Directive (art. 5), the DCA allows libraries, museums and archives since 2004 to: Digitise ©works: -for preservation purposes ‘if they threaten to decay’ -for migration purposes (art. 16n) Make digital ©works from the collection available in a closed network on the premises of the institution only (art. 15h). BUT no exception for Internet use: library needs permission!

5. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Interests of heritage institutions v. ©holders Cultural heritage institutions: Public task & mission: give broad access to their collections, bought with public money. People often do not look any further than the internet. The public is especially interested in recent material, thus ©. Right holders: Wish to keep control over (the reuse of) their works. Fear that their works will be misused when put online. But they also see possibilities: Give licence against payment, e.g. CMOs & Google Book Settl Give free access: academics & e.g. starting musicians who wish to be read/listened to as much as possible

6. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Database of Digital Daily newspapers (DDD) KB digitises Dutch newspapers to put them online for free consultation by the public, with government funding. Total of ca. 8 million newspaper pages (1618-1994): 5 million pages are out of © 3 million in © For those 3 million, the KB requires permission from: 1.Publishers: for items by their employees published after 1940. Via licence contracts with individual publishers. 2.Living freelancers & heirs of freelancers † after 1940. Collective contract with collecting societies representing freelance-journalists and -photographers.

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8. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Orphan works Searching for & negotiating with right holders who are not members of CMOs = very time-consuming & costly. The older the works the less successful is a ‘diligent search’: orphan works: works of unknown or untraceable right holders. BUT ©=opt in-system: requires permission before use! So, under current © law, orphan works may not be used. Valuable material would remain unknown to the public. However, for large scale digitisation like newspapers: search per work = too time-consuming & costly.

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10. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Orphan works: unknown right holders

11. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Possible solutions Without diligent search: 1.Prevent future orphans by recording in databases who is the right holder of a work (& what reuse allowed: CC licences). 2.Scandinavian Extended Collective Licensing: CMOs are by law permitted to also licence works of non-members incl potential orphan works, if representative & opt out-option. 3.NL self regulation: user pays for an indemnity with a CMO: non-members who show up later can claim licence fee or opt out. No legal basis (yet); user still infringes ©. (Cf rejected Google Book Settlement).

12. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation With diligent search: 4. Canada ©Board: gives a national licence against a fee for orphans after unsuccessful reasonable search efforts. 5. US bill: financial liability after a complaint is limited if user proves he made a diligent search (=0 for non-profit institutions which stop the use after a complaint). 6. Exception in copyright act permitting use of orphan works after a diligent search. Preferable for large scale digitisation: collective licensing model because no diligent search required.

13. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation European Commission: Europeana vs Google Book Former Commissioner Viviane Reding, speech in 2009: If we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content will not take place in Europe, but on the other side of the Atlantic. EC, ‘The Google Book Settlement (GBS) - Impacts from a European perspective’, information note, 27 Nov 2009, nonpaper 15109/09: The Commission supports approaches which are open to private-sector initiatives and to technological innovation that comply with IP rights and are pro-competitive in nature. Commercial projects alone cannot cover the public interest dimension of the digitization of cultural products. Report New Renaissance by Comité des Sages for Commissioner Neelie Kroes, January 2011.

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15. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Proposal for EU Orphan Works Directive, May 2011 Applies to libraries, museums, archives, educational establishments, film and audio heritage institutions, public broadcasters. Concerns books, journals, audiovisual works and audio recordings in their collections. Identification of orphan work requires diligent search in the work’s country of first publication. Sources to consult for diligent search to be determined by each Member State. Minimum sources in Annex. CHIs must maintain records of searches, and publish the results and their use of orphans in online databases. Orphans may be used in acc with ‘public interest mission’, incl digitisation and online cultural and educational access.

16. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Mutual recognition of orphan status among Member States: cross border effect within EU. Version 21 Oct: via an exception requiring that the use does: not conflict with the normal exploitation of the work, and not unreasonably prejudice the legitimate interests of rightholders. Member States may require a remuneration for such use for right holders who surface afterwards. Current proposal is bad for CHIs because of legal uncertainty: scope of exception unclear, and overridable by contract reservation must still be made for surfacing right holders, apart from large costs for diligent search per work. Happily, Extended Collective Licensing models are left unprejudiced. Dutch consultation on OW Dir: many parties favour collective model.

17. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation MoU on Out-of-Commerce Works, Brussels 20 Sept 2011 Digit & online access by libraries, museums, archives, educ establishments. Books and journals that must be out-of-commerce, also in electr form. ECL model governed by 3 principles: 1. freedom of contract 2. representative CMO may also contract for non-members, incl potential orphans, against a remuneration. Right holders may opt out. 3. cross border effect (cf use in Europeana), calls for legislative efforts Non-binding. When applicable? Esp. suitable for large scale digitisation. Weighing: - OW Dir: costs for 1) dil search, 2) licence fees for found right holders, and 3) remuneration in case of surfacing rightholders. - MoU: ECL remuneration for rightholders. Other (less expensive) options? Authors favouring Open Access or CC li- cences desire no remuneration, but individ appr requires dil search costs. Korteweg/Hugenholtz April 2011: CMO fees for CHIs difficult and arbitrary. Axhamn/Guibault August 2011: report on usefulness of ECL to boost Europeana.

18. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Stedelijk Museum Amsterdam vs CMO Pictoright Museum searches for artists in its collection who are not CMO-members. Asks them to give a licence for free enabling the museum to put the work online. Options: licence for use by museum only, or CC-licence (CC-BY-NC, or CC-BY-SA which enables free reuse of the work, e.g. in Wikipedia). CMO warned artists not to chose the CC-BY-SA ‘for one practically gives away one’s copyright in the work’. Museum: artists react positively, we inform them well, they know what they do. Project on hold…

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20. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Concerns for the future Going digital will cause ever rising licence costs for CHIs: ECL model: CMOs license for short terms, CHIs work for eternity: unaffordable future. EC/governments promote creative reuse by end users; the more reuse possibilities the more expensive the licences. Charging end users inevitable (pay per use) More rightholders will want to exploit out-of-commerce works themselves: -they smell money, compare fees proposed by GBSettl -will not give licences to CHIs anymore, or unaffordable -only via PPPs in which CHIs bear part of digitisation costs & private partner commercializes works.

21. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Other ©related costs: Process of negotiating with right holders/CMOs & drafting licence contracts Maintain register with rights information & CHI’s licences per work Notice&Take Down procedure (also for privacy complaints) Reservations for claims But digitisation alone is already very expensive! PPPs on PD Digital preservation

22. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Communia Network on OW Directive, 21 Oct 2011: Memory institutions must be enabled to fulfil their traditional function in the online environment. In order to be able to provide access to knowledge and culture they must benefit from compulsory and harmo- nized exceptions and limitations that allow them to make their collections available online for non-commercial purposes.