Europe’s cultural heritage institutions deserve better

This blog post by Paul Keller was first published on the Kennisland website

For those of us looking forward to copyright rules that enable European cultural heritage institutions to provide online access to their collections, two important things happened last week: on Wednesday 29th October, the Orphan Works directive (OW directive) came into force and on Saturday 1st November, the new European Commission headed by Jean-Claude Juncker assumed office.

The first event marks the failure of the existing system, while the second one is reason to give us hope for a more meaningful modernisation of the European copyright system.

The fact that the current system does not take into account the needs of cultural heritage institutions is painfully illustrated by the Orphan Works directive. After years of legislative wrangling, Europe came up with a ‘solution' for the problem of orphan works(1) that requires cultural heritage institutions wanting to make orphan works available to undertake complicated searches for rights holders, before they are allowed to publish them. In most cases, the resources required for such searches are completely out of balance with the cultural and economic value of the work. This means that the Orphan Works directive may be a useful tool for making small numbers of high profile works available, but not as an enabler of mass digitisation projects.

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The fact that the OW directive ended up as a crippled tool that fails to address the problem it was designed to answer (enabling mass digitisation of collections), is the result of a number factors: strong pressure from rights holders and their representatives to preserve the underlying principles of copyright even in a situation where they do more good than harm; the lack of coordinated advocacy efforts from cultural heritage institutions at the European Level; and a weak European Commission that was split on copyright.

With regards to the last point there is reason to hope that the situation is changing. The Juncker Commission that came into office on the first of November has made the modernisation of copyright one of its top priorities. In his mission letters to the Commissioners in charge of a connected Digital Single Market, Juncker made it clear that he expects his team to come up with 'ambitious legislative steps' towards 'modernising copyright rules in the light of the ongoing digital revolution' within the next six months.

In other words, the time to start fighting for copyright rules that enable cultural heritage institutions to properly function online is now!

Cultural heritage institutions deserve better copyright rules

So what is at stake? The current copyright rules affecting cultural heritage institutions were drafted long before most institutions became active online and long before governments and users began pushing for the online availability of collections. Given this, it is not surprising that the rules no longer make sense.

• Europe's cultural heritage institutions deserve better than an OW directive that does not support mass digitisation and that forces them to spend scarce public resources looking for rights holders who have abandoned their works and may not exist at all. These resources would be much better spent on digitising and contextualising collections.
• They deserve better than a copyright directive that allows them to digitise works only in certain special cases(2). Digitising heritage collections constitutes the most fundamental shift in how we preserve our cultural memories since the invention of the printing press. We need copyright rules that make this transition possible with as little friction as possible.
• They deserve better than a copyright directive that allows them to make works available only via ‘dedicated terminals’(3), and specifically bans making works available online under an exception. Do we really expect our kids to go to the library to use a 'dedicated terminal' when they carry devices that provide access to the entire world in their pockets?
• Libraries in particular deserve better than a lending directive(4) that leaves them at the mercy of publishers when they want to lend out e-books. Public libraries providing public access to all books did not come about because publishers were so generous as to authorise them to do so; we have public libraries because they are important. That fact does not change because books are increasingly consumed in digital formats.

In short, Europe needs a copyright system that enables universal online access to the collections of our cultural heritage institutions.

Opposing interests?

Who or what is standing in the way of efforts to make this a reality?

Historically publishers, authors and their representatives have been deeply sceptical of any expansion of copyright exceptions that allow cultural heritage institutions (and other types of beneficiaries) to use copyrighted materials without the express permission of rights holders. A close study of this stakeholder group’s responses to the public consultation on a review of the European copyright rules reveals that their primary concern is ‘unfair competition between libraries (and similar institutions), and [their own] commercial offers’(5).

So while cultural heritage institutions argue in favour of exceptions that would allow them to make available online works that are not in commercial circulation anymore, publishers (and authors) are concerned that cultural heritage institutions will use broader exceptions to unfairly compete with them.

Fortunately, these two positions seem rather easy to reconcile. The non-commercial use of material that is no longer commercially available by cultural heritage institutions would, by definition, not compete with the commercial activities of publishers and authors. Instead, the responses to the consultation point to two complementary roles that need to be enabled by an updated copyright framework.

Publishers and creators should be enabled to continue to produce and exploit creative works without having to compete with public institutions. Cultural heritage institutions have a duty to ensure that those parts of our cultural heritage not in commercial circulation are available for the public to consult online.

The time to act is now

As the Juncker Commission gears up its efforts to modernise European copyright rules, the cultural heritage sector has no time to lose. It must ensure that the above message is communicated loud and clear to policy makers in Brussels and in individual member states. One of the reasons why the Orphan Works directive is so woefully inadequate is that cultural heritage institutions have not managed to effectively coordinate their efforts in Brussels, while rights holder representatives have a long history in doing so.

Change is not something that is going to happen by itself, it requires institutions from across Europe to make their voices heard(6) and explain that the cultural heritage sector deserves much better.

1. Orphan works are works that are still in copyright where the author or other rights holders cannot be identified or located and which may therefore not be published because permission to do so from the rights holders cannot be obtained.
2. See article 5.2.c of the Copyright directive that allows specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives.
3. See article 5.3.n of the Copyright directive that allows 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 Libraries, Archives and Museums.
4. See Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right.
5. See the European Commission’s report on the responses to the Public Consultation on the Review of the EU Copyright Rules.
6. For example by talking to policy makers, writing to MEPs and making sure that European organisations representing your sector are making this issue a priority for the months to come.