1. The European copyright framework and the digitization of cultural heritage
University of Graz

2. Free access to digital archives and collections? Utopia?
Introduction
Free access to digital archives and collections? Utopia?

3. Subject matter of copyright
‘original works’ are copyright protected
Berne Convention for the Protection of Literary and Artistic Works
It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
Originality
Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.
No full harmonization in EU so far ‘The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.’ ‘The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; …works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.’
ideas?
formulas?
registration?

4. Non decisive criteria novelty copyright notice
aesthetic, artistic or scientific value
legally compliant content
physical fixation
legal capacity
suggestions
registration

5. Authorship The author is the original creator of the work
If you create a work with someone together -> shared ownership
Creation during employment? Who is the author? Who is the right holder?
Implied granting of rights in the case of service obligations? -> national laws
Mere initiators, assistants etc. are not authors as long as their contribution itself is not original
Always the person providing the personal mental performance is the author

6. Which rights does the author have?
Moral rights -> national laws
Economic rights -> harmonized by EU-law (InfoSoc-Directive)

7. Reproduction right
Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
(b) for performers, of fixations of their performances;
(c) for phonogram producers, of their phonograms;
(d) for the producers of the first fixations of films, in respect of the original and copies of their films;
(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.

8. Making available right
1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
-> public?
CJEU: two cumulative criteria, ‘act of communication’ of a work and the communication of that work to a ‘public’
indeterminate number of potential recipients and a fairly large number of persons
-> Accessibility is sufficient!

9. Exceptions and limitations
allow people to use a work without permission in certain circumstances

10. Copyright basics What is the subject matter of copyright?
Who is the author? Who is the right holder?
What can I do with a copyright protected work?
Is there a free use?
How long is a work copyright protected?
Only results of an intellectual process
Work for hire-doktrine?
Exclusive rights
exceptions and limitations

11. Term of protection

12. Copyright protection period
Protection of immaterial goods is limited in time
In the past the term of copyright protection has been extended several times
Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights
no difference by the various categories of work, but uses the term of protection of 70 years post mortem auctoris to all works.

13. Copyright protection period
Copyright: lifelong + 70 years
post mortem auctoris
For joint works of several authors the time of death of the last surviving author shall prevail (Berne Convention)
The operative for calculating the term of protection time of death has not been harmonized by the Directive.
international element: substantive law applicable is to determine

14. Digitization

15. Digitization
server upload/download

16. Right to digitize? Copying is an exclusive right!
There are several rules for making a (digital) copy of a copyright protected work as an exception
problem: different national and optional exceptions and limitations in national laws
just 1 mandatory exception in EU-copyright so far
quickly deleted memory
for transient copys

17. Right to digitize?
Member States may provide for exceptions or limitations to the reproduction right provided for the following cases:
(b)  in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subjectmatter concerned;
(c)  in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;
Art 5 InfoSoc-Directive

18. Right to make available?
Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
(n)  use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;
no mandatory exception!
there can be different national exceptions!
Art 5 InfoSoc-Directive

19. Right to digitize? Right by digitizing?
Litigation LG Berlin Reiss-Engelhorn- Museum vs Wikipedia
Cäsar Willich (1862)

20. Orphan Works

21. Orphan works
works such as books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other rightholders are not known or cannot be located.
Orphan works are part of the collections currently held by European libraries, museums, archives, film and audio heritage institutions, and public service broadcasting organisations. The lack of data on their ownership has often constituted an obstacle to their digitisation and making them available online. ?

22. Orphan works privileged institutions - libraries
- educational establishments
- museums
- archives
- film or audio heritage institutions
- public-service broadcasting organisations

23. What is an orphan work? The directive applies to:
(a)  works published in the form of books, journals, newspapers, magazines or other writings contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions;
(b)  cinematographic or audiovisual works and phonograms contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institu­ tions; and
(c)  cinematographic or audiovisual works and phonograms produced by public-service broadcasting organisations up to and including 31 December 2002 and contained in their archives;
which are protected by copyright or related rights and which are first published in a Member State or, in the absence of publication, first broadcast in a Member State.

24. What is an orphan work?
The directive also applies to works and phonograms
which have never been published or broadcast but which have been made publicly accessible by the organisations with the consent of the rightholders, provided that it is reasonable to assume that the rightholders would not oppose the uses referred to in Article 6.
Member States may limit the application of this paragraph to works and phonograms which have been deposited with those organisations before 29 October 2014.

25. What is an „orphan“ work?
1. A work or a phonogram shall be considered an orphan work if none of the rightholders in that work or phonogram is identified or, even if one or more of them is identified, none is located despite a diligent search for the rightholders having been carried out and recorded.
2. Where there is more than one rightholder in a work or phonogram, and not all of them have been identified or, even if identified, located after a diligent search has been carried out and recorded in accordance with Article 3, the work or phonogram may be used in accordance with this Directive provided that the rightholders that have been identified and located have, in relation to the rights they hold, authorised the organisations referred to in Article 1(1) to carry out the acts of reproduction and making available to the public covered respectively by Articles 2 and 3 of Directive 2001/29/EC.

26. Orphan works-Directive 2012/28/EU
conditions
- orphan works as subject matter
- privileged institutions
- diligent search

27. Diligent search
1. For the purposes of establishing whether a work or phonogram is an orphan work, the organisations referred to in Article 1(1) shall ensure that a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram.
2. The sources that are appropriate for each category of works or phonogram in question shall be determined by each Member State, in consultation with rightholders and users, and shall include at least the relevant sources listed in the Annex.
3. A diligent search shall be carried out in the Member State of first publication or, in the absence of publication, first broadcast, except in the case of cinematographic or audiovisual works the producer of which has his headquarters or habitual residence in a Member State, in which case the diligent search shall be carried out in the Member State of his headquarters or habitual residence.
In the case referred to in Article 1(3), the diligent search shall be carried out in the Member State where the organisation that made the work or phonogram publicly accessible with the consent of the rightholder is established.

28. Diligent search
4. If there is evidence to suggest that relevant information on rightholders is to be found in other countries, sources of information available in those other countries shall also be consulted.
5. Member States shall ensure that the organisations referred to in Article 1(1) maintain records of their diligent searches and that those organisations provide the following information to the competent national authorities:
(a) the results of the diligent searches that the organisations have carried out and which have led to the conclusion that a work or a phonogram is considered an orphan work;
(b) the use that the organisations make of orphan works in accordance with this Directive;
(c) any change, pursuant to Article 5, of the orphan work status of works and phonograms that the organisations use;
(d) the relevant contact information of the organisation concerned.

30. Orphan Works Database
The Orphan Works Database provides information related to orphan works contained in the collections of publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations established in the Member States.
The database enables beneficiary organisations – such as those mentioned above – that want to make use of orphan works in digitisation projects to have easy access to relevant information about them. These organisations shall also record works in the database that they have identified as orphan during diligent searches. 
Information received from beneficiaries is forwarded to EUIPO by the competent national authority designated in each Member State, e.g. Ministry of Culture or National IP Office. Only after EUIPO receives the information about orphan works, does that information become accessible in the database.

32. Orphan Works Database
The database covers information about a wide range of works first published or broadcast in the EU Member States:
works in the print sector, such as books, journals, newspapers, magazines or other writings;
cinematographic or audiovisual works and phonograms;
unpublished works under certain conditions;
works embedded or incorporated in other works or phonograms, e.g. pictures, photographs;
partial orphan works, i.e. those for which some right holders have been identified and located and have given permission to use the work in relation to rights they hold.

33. Conclusions

34. Summary every member state has its own copyright law system
there is a EU-wide copyright law framework
there are only optional exceptions and limitations
there are several rules for digitizing cultural heritage
no general right to digitize
right by digitizing -> picture licensing

35. Outlook

36. Outlook

37. Outlook – Com 2016(593)
Preservation of cultural heritage Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1)(a) of Directive 2009/24/EC and Article 11(1) of this Directive, permitting cultural heritage institutions, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation of such works or other subject-matter and to the extent necessary for such preservation. -> mandatory for all EU-Members!