Copyright advocacy update: Future access to cultural heritage, geoblocking or a Digital Single Market?

Europeana Board Member Paul Keller reacts to a newly proposed article by the European Council that goes against the idea of Digital Single Market. Read his in in-depth article here.

More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), discussions continue both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s consolidated compromise proposal was made public. The proposal includes an entirely new article on ’Collective licensing with an extended effect’.

Extended collective licensing and cross border use

To anyone familiar with the Commission's proposal (and our criticism of the proposal) this addition will appear somewhat odd as the Commission's original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.

Articles 7-9 of the Commission's proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.

Going against a Digital Single Market for cultural heritage?

By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU member states.

By introducing the ability for more flexible domestic ECL systems, the Member States make the provisions aimed at allowing EU wide access to out of commerce works less attractive. From our perspective, this would be a huge loss that goes directly against the objective of the directive to create a Digital Single Market that enables cross border access to the digitised cultural heritage collections of institutions all across the EU.

The new proposal will likely lead to a situation where a lot of digital collections will only be available from within the Member State where the institution owning the collection resides. While it is unlikely that this is the intention behind the new article it would move us further away from Europe wide access to digitized cultural heritage and closer to a reality in which geo blocking access to culture becomes the norm

We invite you to read our in-depth article on the IPR page.

Note: On behalf of the Europeana Network Association, the Europeana Foundation represents the view of cultural heritage institutions in the debates around the EU copyright reform. Read the full consensus driven mandate. The mandate was approved with a clear majority of the Europeana Network Association Members Council, with a small number of organizations recording their dissent (which are clearly recorded in the mandate).