Executive summary
This study was commissioned by Europeana to support the provision of 3D content to Europeana.eu in line with the Recommendation on a common European data space for cultural heritage. Among other goals, the Recommendation aims to enable innovative forms of creation, while opening up new ways of digitally engaging with and enjoying cultural content, and to support the creative industries. These goals complement the Directive (EU) 2019/790 on Copyright and Related Rights in the Digital Single Market to clarify the status of public domain works of visual art and improve legal certainty around the reuse of non-original digital surrogates and other reproduction media.
The aim of this study is to map the legal frameworks and rights management practices that apply to 3D models to establish whether the rights asserted in them are valid. The overall objective is to improve the application of accurate rights statements to the 3D models contributed to Europeana.eu and the common European data space for cultural heritage (hereafter the data space) so they may be accessed, shared and reused. The findings are as follows:
- At the time of this study, Europeana.eu publishes 4,646 3D models of cultural heritage objects and sites. While the underlying works are overwhelmingly in the public domain, 93% (or 4,366) of their 3D digitisation are subject to new copyright claims. Only 6.7% (or 311) are marked as public domain.
- Approximately 75% of these copyright assertions are likely not warranted. This is because it is unlikely that a new copyright arises in 3D models that aim to accurately reproduce a cultural heritage object or site.
- For a new copyright to arise: (1) there must be scope for creative choices to be made during the model’s production; (2) creative choices must in fact be taken; and (3) those creative choices must result in the model being the author’s own intellectual creation. The 3D model must be imprinted with the technician’s personal touch such that it is a new original expression, rather than a faithful reproduction of the source object.
- Scope for creative decisions can arise during pre-production (e.g., when selecting items for digitisation, processing software, and equipment), production (e.g., with the camera or scanner set-up, positioning the objects, lighting, and capture settings) and post-production stages (e.g., selecting the images for processing, modifying mesh, and applying editing settings or processes). When these processes are predetermined by a specific goal or set by narrow technical or functional rules, a 3D model will be characterised by its technical function and therefore be non-original.
- Even when they require significant time, expertise, and investment, non-original 3D models do not receive copyright protection. This exposes a certain irony for 3D heritage projects: the more someone invests in making a model accurate, the less likely it is to become the author’s own intellectual creation. By contrast, the more “original” the model, the less useful it becomes for study and other purposes that require reliable data and accuracy.
- Against this backdrop, this study found that data providers are either misinterpreting copyright law or failing to disclose what makes a model original in the metadata, paradata, or other descriptions, which raises reliability and verifiability issues.
- Other rights or conditions can affect a 3D model and might include related rights, property and cultural heritage laws, cultural rights and ethical considerations, and contractual or database rights. If arising, these rights also are not accurately reflected in the rights statements applied to 3D models on Europeana.eu.
- Europeana does not currently have protocols to support accurate copyright assessments, such as using the Europeana Data Model (EDM) fields to indicate a model’s scientific accuracy or creative interpretations or by setting standards in the Europeana Licensing Framework (ELF) on metadata or paradata descriptions to disclose any original elements therein.
- Europeana can help to build trust among data providers by supporting more accurate rights assessments while encouraging users to credit and provide attribution to projects. The EDM and ELF should be operationalised to enable the disclosure of information on what elements, if any, are protected in a model to also enable their study and use for scientific purposes, as well as attribution.
- The recommendations made by this report to support the application of more accurate rights statements to 3D models contributed to Europeana.eu and the data space can be extended to all data space participants.
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