Digital cultural heritage and the concept of openness

The term ‘open’ is used to refer to information and tools which are accessible and reusable to a large extent. In a general sense, ‘open knowledge’ means that anyone is free to access, use, modify and share the knowledge, subject, at most, to measures that preserve provenance and openness.

The term ‘open’ is used slightly differently depending on the context or sector. Open movements include, for example, open access, open data, open science, open source software, open culture, open content and open GLAM (referring to Galleries, Libraries, Archives and Museums).

The various ‘angles’ of ‘open’ are sometimes supported by certain areas of law, or built upon certain legal provisions. For example, open movements build on copyright legislation or public sector information obligations and are supported through licensing or contractual terms.

The following questions focus on the areas of openness that are most relevant to the cultural heritage sector, namely open GLAM or open content and open data. As a general rule, for content to qualify as being ‘open’, it must be freely accessible as well as available for any reuse purpose, including commercial use and modification.

The term ‘open access’ has a specific meaning compared to other fields of ‘open’. Originally, the idea of Open Access (OA) as conceived by the Budapest Declaration of 2002 and the Berlin and Bethesda Declarations of 2003, referred to ’the free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.’ Thus, originally ‘open access’, in its definition, involved free reuse.

The scope of the term ‘open access’ in the context of EU Open Data and Open Science policies has no formal definition. In some cases it seems to include the possibility of reuse. The Commission Recommendation (EU) 2018/790 of 25 April 2018 on access to and preservation of scientific information defines ‘open access’ as, ’the possibility to access and re-use digital research outputs with as few restrictions as possible’, while the Open Data Directive (EU) 2019/1024 stipulates that it is, ‘the practice of providing online access to research outputs free of charge for the end user and without restrictions on use and re-use beyond the possibility to require acknowledgement of authorship.’

Other EU acts regard ‘open access’ as a tool to only secure free availability of research results, with no requirement as to the reuse conditions. According to the Regulation (EU) 2021/695 establishing Horizon Europe – the Framework Programme for Research and Innovation, as well as the Horizon Europe General Model Grant Agreement - ‘open access’ refers to the, ‘free of charge, online access for any user,’ whereas the regime of subsequent use of research results, such as scientific publications or data, is called ‘reuse’. In the field of scientific publishing the colour coded types of Open Access such as ‘Green’, ‘Gold’, ‘Platinum’, ‘Hybrid OA’ etc. refer only to the way the content was made available to the public (and to who is paying for the publications to be made accessible without a paywall).

Open GLAM refers to the movement in the cultural heritage sector that seeks to develop and adopt principles to make works, data and knowledge, available online for reuse without restrictions. From a legal perspective this implies there are no legal frameworks (such as copyright, data protection as well as cultural heritage, archaeological or archival laws) imposing restrictions on modifications and on commercial reuse. This means that, to be open, content can still be protected by copyright but it is made available by the cultural heritage organisation under terms that permit access, commercial reuse and modification.

For example, the cultural heritage organisation owns the copyright, or has permission from the rightsholder to the content and decides to make it available under an CC BY licence.

The Open GLAM movement also advocates for public domain collections to remain in the public domain once digitised, such as a digital surrogate of a public domain work.

There are other legal and ethical considerations for cultural heritage organisations to make content openly available, such as data protection, privacy and sensitivities of the works. These considerations mean that some works may not be made openly available.

Transparency about how and why works are made available is a key aspect of Open GLAM. This means that works are made available with associated metadata, clear labelling on reuse conditions, and that the cultural heritage organisation shares policies and guidance on reuse. This transparency helps audiences, communities and users gain an understanding of the cultural heritage organisation’s mission and responsibilities as stewards of cultural heritage works.

For more information, check our page on Open and Reusable Cultural Heritage and read our Public Domain Charter.

In line with the definition of ‘open knowledge’, open data is data that is accessible, usable, modifiable and exploitable, and can be shared by anyone for any purpose.

The open data movement has been strongly fuelled by the open government movement, advocating for transparency and reusability of public sector information. As a result, some legal provisions establish open data obligations in the area of public sector information. At the EU level, the legal regime of Open Data is regulated in the Public Sector Information/Open Data Directive (EU) 2019/1024 which mostly tackles the free accessibility and reuse of data gathered by public sector organisations (such as state bodies), and in some limited cases - data handled by universities and research organisations, resulting from publicly funded research.

For example, in 2019 the European Commission adopted the use of CC BY and CC0 for sharing information. At the national level, governments have been relying on the same or similar standards to release public sector information.

Open data often involves a strong technological dimension, such as the need to make data machine-readable, or to structure the data so that it can be linked with other data (linked open data). Thus, the requirements associated with opening data to the public cover not only legal, but also technical considerations. A term that is closely linked to open data is FAIR (Findable, Accessible, Interoperable, and Reusable), which is widely used in the scientific world for research data. Its principles and sub-principles include openness, but they go beyond this by specifically focusing on improving the accessibility and usability of data, without necessarily requiring openness in the broader research methodology. The FAIR principles do not explicitly address legal aspects such as licensing, leaving it to external considerations. FAIR also relates to broader concepts to openness in research, including methods, publications, licensing, community engagement, and ethics.

To read more about the topic, check the page Europeana and the FAIR principles for research data.

Digital access allows someone to view a work. Being ‘open’ allows people to lawfully use material and to use the knowledge it contains.

Something being available online does not mean that it is open. Users should assume that materials they come across online are not available for reuse unless a label or licence indicates otherwise. In other words, materials are ‘closed’ unless they are clearly marked as ‘open’. This is because copyright protection is granted automatically, and ‘all rights reserved’ is the default unless the rightsholder indicates otherwise.

For example, video content on YouTube is available online for viewing. However, most YouTube content (in common with much of the content that’s publicly available on the web) is not truly ‘open’ for lawful reuse, remixing, or sharing.

Content may not be available for reuse for any number of valid reasons.

Works may be subject to legal conditions, such as those established by copyright or personal data protection, that limit the possibilities to share or further use them. An example is if a work is subject to copyright protection, it is the author (or rightsholder’s) decision to choose to publish it openly or not. Another example is where cultural heritage institutions have copyright-protected content in their collections but are not the copyright rights holders. While they often have legal safeguards to digitise and make available online these materials, they cannot authorise any further reuse.

Other reasons for content to not be ‘open’ are contractual conditions (that impose, for example, commercial restrictions or embargoes) and ethical limitations on reuse based on concerns by indigenous communities.

Finally, content might not be open because of a decision by the person or institution that holds the rights, deciding to use these rights to place restrictions on the reuse possibilities.

It is important to both understand and respect the terms under which content is made available. Any reuse that infringes on these terms may expose the user to legal or contractual infringement and the rightsholder (or data subject, or other, depending on the legal area) to harm.

However, there are some occasions in which the ‘closing’ (or not ‘opening’) is not valid. For example, some cultural heritage institutions want to control how works in their collections are reused. Some have claimed that there is copyright protection in the digitisation that justifies ‘closing’ the work up, even in cases where this protection is not likely to exist. If that is the case, any licence limiting reuse on the basis of copyright will be unenforceable. It can be worth questioning or challenging such restrictions in order to determine whether they are justifiable.

As a starting point, European and other similar copyright regimes plan for all works to eventually become ‘open’ by entering the public domain.

But there will be cases, despite the inevitable expiration of copyright, where individual items should not become truly ‘open’ as that term is defined above. Some works will remain inappropriate to be made available openly, particularly where they include sensitive information or personal data, or when they can result in risks for individuals or communities that outweigh the public right to access and information.

Even then, in the context of cultural heritage, it is necessary for cultural heritage institutions to explore ways to make the works that they hold available to the extent possible by exploring solutions such as clear warnings or contextual clarifications, access restrictions, or the anonymisation or pseudonymisation of certain types of personal data.

Content can become more open. For example, copyright eventually expires in copyright protected works. Additionally, a copyright holder can decide at any time to apply an open licence to the work.

However, it should be noted that once a work is openly licensed using a Creative Commons Licence or when it is public domain that it cannot become closed again.

Open licences are copyright contracts that provide permission for everyone in the world to reuse licensed material, provided some obligations are met. Examples include some of the Creative Commons licences and open source licences (e.g. MIT GPLv3, etc.).

Creative Commons licences and tools are contracts designed to communicate reuse conditions in a simple way, in order to maximise the reuse of information and culture. They are mostly used alongside works made available online, and may only be applied by the rightsholder. They address the ‘problem’ that one should assume upfront that works are ‘closed’ (as indicated in the question above) unless otherwise indicated.

They are based on copyright and neighbouring rights (a lower copyright-type of protection that is granted to certain types of materials). That is, they provide information about the existence or lack of copyright and neighbouring rights, and on the basis of its existence, they establish what types of reuse are possible. They provide no warning about the existence of other types of rights, nor inform of reuse possibilities beyond copyright. As a result, a work under CC BY might be reusable from a copyright perspective but might be subject to other types of restrictions due to personality rights, for example.

Among the Creative Commons suite of licences for copyright materials, those that are open include CC BY and CC BY-SA.

Materials for which copyright does not arise, or has expired, are also ‘open’ and they may be clearly placed or marked as being public domain, by using the CC0 1.0 Universal Public Domain Dedication or the Public Domain Mark (PDM). The PDM is not a legally-binding licence, but simply a label to communicate the public domain status of a work that is unequivocally in the public domain.

Rights Statements created by the Rights Statements Consortium are a set of labels of the reuse conditions of a work in a standardised form. They refer to copyright limitations, but they also inform users of relevant legal or contractual restrictions.

Because they are labels, the suite of Rights Statements are not legally binding. Where licences are legal tools in the domain of the author/rightsholder serving to grant authorisation to the public for certain uses of the licensed content, rights statements are tools to express information, and not permission. Unlike licences, such as Creative Commons licences, rights statements do not grant permission to use. Instead, they seek to accurately reflect the copyright status of the work to which they have been applied and communicate the types of use that are already permitted. As a result, they are not necessarily ‘open’.

Europeana.eu provides access to a wide range of digitised cultural heritage from across Europe and beyond. This material is provided to Europeana by a large number of contributing institutions. Europeana strives to make this data available for reuse as much as possible.

All of the metadata (the data about this cultural content) is published using the CC0 1.0 Universal Public Domain Dedication.

Each digital object is labelled with a standardised Creative Commons Licence, Tool or a Rights Statement that makes it easy for anyone to check if or how it can be used. The choice of rights statement, and therefore the choice of ‘more or less open’ when it comes to digital objects is in the hands of data providers. The Europeana Initiative encourages data providers to allow the reuse of content as widely as possible through our policies and frameworks, namely:

• The Europeana Public Domain Charter, through which we advocate for public domain content to remain in the public domain after digitisation.

• The Europeana Publishing Framework, which introduces four tiers of criteria for measuring content quality by taking into account not just the quality of the digital resources, but also the degree of openness in the rights statements and licences applied to them.

You can read more about how Europeana support openness on this page.