Digital Libraries – Copyright Issues

Assoc. Prof. PhD Tania Todorova

Library Management Department, SULSITdr.tanya.todorova@gmail.com

IP LibCMASS, Contract № 2011-ERA-IP-7

"Copyright and the Internet are two powerful engines for driving creativity and innovation for the benefit of all Europeans. They should be combined in the new project of a competitive and prosperous Digital Single Market. Such a Digital Single Market can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers.“

Viviane Reding, the EU Commissioner for Information Society and Media.

Resource: European Commission Launches Reflection on a Digital Single Market for Creative Content Online. 22.10.2009. IP/09/1563 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1563&format=HTML&aged=0&language=EN&guiLanguage=en>

Digitization of cultural heritage, the status of digital resources and observance for copyright, the development of large-scale digitization projects in the U.S. and Europe – these problems compile the trouble range of this lecture.

Copyright, libraries and users are subject that aimed to help the library managers in construction of library policies for digitization, in accordance with the requirements of the copyright and related rights law in the offering of library services and resources.

Report on Digital Preservation, Orphan Works, and Out-of-Print Works. Selected Implementation Issues. (adopted by the High Level Expert Group at its third meeting on 18.4.2007), 11 p. http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=3366

“Europeana – next steps”. Online Consultation. Backgroung. 2009. <http://ec.europa.eu/information_society/activities/digital_libraries/cultural/consult_nextsteps/index_en.htm#I>

Europeana – Next Steps. Communication from the Commission to the European Parlament, the Council, the European Economic and Council Committee and the Committee of the Regions. COM (2009) 440 final. Brussels, 28.08.2009. 10 p. <com 2009_0440 en01.pdf>

Europeana on-line library should be enlarged, but still respect copyright, say MEPs. // Culture, 23.02.2010, REF. : 20100223IPR69351 <http://www.europarl.europa.eu/news/expert/infopress_page/037-69352-054-02-09-906-20100223IPR69351-23-02-2010-2010-false/default_bg.htm>

The selection of content to be digitised and brought into Europeana is determined by the Member States and their cultural institutions, in line with their cultural and/or information policies.

Nevertheless, to meet the expectations of users as to what they will find in Europeana, a particular effort may be needed in relation to specific categories of material.

Overall, the contribution by the different Member States to Europeana is still unbalanced, in terms of both number of objects and types of material.

Resouce: It is Time for Europe to Turn over a New e-leaf on Digital Books and Copyright. Joint Statement of EU Commissioners Reading and McCreevy on the Occasion of this Week’s Google Books Meetings in Brussels. 07.09.2009. MEMO/09/376 <http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-infso_en.htm#hearing_google_book_sеttlement

“We need to take a hard look at the copyright system we have today in Europe.

Is the present framework still fit for the digital age?Will the current set of rules give consumers across Europe access

to digitised books? Will it guarantee fair remuneration for authors? Will it ensure a level playing field for digitisation across Europe, or

is there still too much fragmentation following national borders?What could be the contribution of Europeana, Europe's digital

library, when it comes to working on a European response to digitisation efforts in other continents?

Is Europe's copyright framework modern enough when it comes to digitising orphan works and out-of print works? These books represent the vast majority of European libraries' collections (around 90%). In our view, these books must be recovered and given a new lease of life."

Works are in the public domain if they are not covered by intellectual rights at all, if the intellectual property rights have expired, and/or if the intellectual property rights are forfeited.

In a general context public domain may refer to ideas, information and works that are "publicly available", but in the context of intellectual property law, which includes copyright, patents and trademarks, public domain refers to works, ideas, and information which are intangible to private ownership and/or which are available for use by members of the public.

This material is an important source of re-use by citizens and companies alike and a driver of creativity in the internet age.

For this reason, the European Commission has underlined the need to keep "public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet".

Resources: Boyle, James (2008). The Public Domain: Enclosing the Commons of the Mind. CSPD. p. 38.Graber, Christoph Beat and Mira Burri Nenova (2008). Intellectual Property and Traditional Cultural

Expressions in a digital environment. Edward Elgar Publishing. pp. 173.Center for the Study of the Public Domain. <http://www.law.duke.edu/cspd>  

Much of the material accessible in digital format through Europeana is in the public domain.

How to bring in-copyright content into Europeana?

One of the key challenges for Europeana is to include in-copyright material, so as to avoid a ‘20th century black hole’ - a situation in which much cultural material from before 1900 is accessible on the web, but very little material is available from the more recent past.

This requires good collaboration between cultural institutions and rightholders, in full respect of copyright legislation.

Such collaboration can take the form of agreements between national cultural institutions and rightholders or of links from Europeana to sites operated by rightholders.

Links to private initiatives – e. g. Libreka! Buecher & E-Books. http://www.libreka.de/ and Gallica - http://gallica.bnf.fr/

Gallica Bibliotheque nationale de France Digital Library <http://gallica.bnf.fr/>

A good example of this type of partnership is Gallica2, the site of the National Library of France. It gives free access to public domain material and provides links to the in-copyright content of French publishers. The publishers decide how much of their content they want to show through Gallica2, and users can acquire the full works from their sites. A similar model could be considered for Europeana.

The advantage for the users is that they not only get direct online access to public domain material, but they can also easily find in-copyright content they may want to acquire. The advantage for the publishers would be a higher visibility of their works to a Europe-wide audience.

Libreka! Buecher & E-Books. <http://www.libreka.de/>

One of the areas where progress urgently needs to be made to facilitate digitisation that will benefit the content accessible through Europeana is the area of out-of-print works and orphan works.

How to bring in-copyright content into Europeana?

What are Out-of-Print Works?

Out-of-print work defined as a work that is not commercially available, as declared by the appropriate rightholders, regardless of the existence of tangible copies of the work as normally understood.

Resource: Report on Digital Preservation, Orphan Works, and Out-of-Print Works. Selected Implementation Issues. (Adopted by the High Level Expert Group at its Third Meeting on 04.06.2008), p. 9. <http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=3366>

[Definition as in the Final Report of 3.06.2008 of the High Level Expert Group (HLEG) - Copyright Subgroup on European Digital Libraries established by the Eurupean Commission in relation to the i2010 Digital Libraries initiative, as adopted by the HLEG on 4 June 2008.]

What are Orphan Works?

A work is orphan with respect to rightholders whose permission is required to use it and who can either not be identified or located after a diligent search. The search must be both in good faith and reasonable.

Resources: Ferrao, Luis. The i2010 digital libraries initiative – Orphan works : [Power Point Presentation; European Commission]. Brussels, Centre Albert Borschette, 09.06.2008.

eIFL Handbook on Copyright and Related Issues for Libraries. // eIFL.net http://www.eifl.net/cps/sections/services/eifl-ip/issues/eifl-handbook-on

Hofman, Julien. Introducing Copyright. A plain language guide to copyright in the 21st century. Vancouver, Commonwealth of Learning (COL), 2009, p. 69. <http://www.col.org/SiteCollectionDocuments/Introducing_Copyright_online_edition.pdf

The main reason why a library usually needs to contact the copyright holder is in order to obtain permission to use the work in ways not covered by national copyright exceptions. A significant part of our cultural and scientific heritage is said to be orphaned.

The problem affects libraries, archives and museums, authors and other creators of new or derivative works, publishers and the producers of sound recordings, films and broadcasts. This is especially true for preservation and digitization projects, new publications about historical subjects and audiovisual works. Already the bane of the film and broadcasting industries, the problem of orphan works now impedes many library and archive mass digitisation projects. Meanwhile, the number of orphan works is on the increase, especially for online work, where material is posted on websites without metadata identifying the rightholder or without information on how to contact the responsible person.

eIFL Handbook on Copyright and Related Issues for Libraries. // eIFL.net <http://www.eifl.net/cps/sections/services/eifl-ip/issues/eifl-handbook-on>

This is because the inclusion of orphan works often entails expensive, time-consuming enquiries to find the rightholder, that may be turn out to be fruitless.

In some countries libraries have a statutory right to copy works in their holdings for preservation purposes, including rights to digitize, but they may still need to obtain permission to provide remote access.

This means that the library could spend time and effort on expensive digitisation projects in order to produce a type of “dark archive” that can only be accessed by a limited group of users. Libraries and archives tend to be risk averse and may not have access to legal advice. Even where orphan works provide significant resources for scholarship, they may be excluded because the library cannot risk litigation.

This results in gaps in digital collections.

What level of search should be undertaken?

The only formal guidance that exists thus far are the Europeana Diligent Search Guidelines developed for the European Commission’s Europeana digital library project.

These voluntary guidelines can be adapted on a case-by-case basis and may be useful for small-scale researches, but few they have been criticised as being too cumbersome for use in mass digitisation projects.

In the adopted by the High Level Expert Group (HLEG) on 4 June 2008 “Report on Digital Preservation, Orphan Works, and Out-of-Print Works” you could find:

The Model Agreement for the digitization and making available of out-of-print works to authorised users in closed network (Annex 3);

The Model Agreement authorizing libraries to allow online access to out-of-print books (Annex 4);

Key Principles for Orphan Works and Out-of-Print Worksdatabases (DB) and Rights Clearance Centres (RCC) etc.

Digital Libraries Initiative: Agreement between Cultural Institutions and Right Holders on Orphan Works. 04. 06.2008. // Europe. Press Releases RAPID. <http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=4145>

A Memorandum of Understanding on Diligent Search Guidelines for Orphan Works was signed by representatives of libraries, archives, audiovisual archives and right-holders in the presence of Commissioner Viviane Reding.

It will help cultural institutions to digitise books, films and music whose authors are unknown, making them available to the public online.

There are few comprehensive online sources of information to help find missing rightholders.

A good place to start is the WATCH (Writers Artists and Their Copyright Holders) database. <http://tyler.hrc.utexas.edu/> and FOB (Firms Out of Business) – database of publishing, literary and other firms out of business. <http://tyler.hrc.utexas.edu/fob.cfm>.

The proposed Google Books Search Rights Registry may in time be another source.

Other developing resources are the European Commission funded ARROW project (The Accessible Registries of Rights Information and Orphan Works: <http://www.arrow-net.eu>) and the MILE Orphan Works Database (Metadata Image Library Exploitation – MILE: <http://www.mileproject.eu/orphanworks>).

Google Books Search Rights Registry < http://www.googlebooksettlement.com/>

ARROW - The Accessible Registries of Rights Information and Orphan Works <http://www.arrow-net.eu>

MILE - Metadata Image Library Exploitation <http://www.mileproject.eu/orphanworks>

In the context of digitisation of older works, there is a striking and highly relevant difference with the US in terms of copyright legislation.

The term of copyright protection has been harmonised in Europe and in the US to 70 years after the death of the author, but US legislation includes a cut-off date of 1923 (works published before 1923 are in the public domain).

Therefore much material of European origin from before 1923 can be digitised and made available in the US without a licence agreement, while it may not be available to European citizens through services such as Europeana.

The practical consequence is wider online access to digital books in the US than in Europe, and solutions involving rightholders and cultural institutions should be considered in order to redress this situation.

These solutions could include speeding up the creation of registries for orphan and out of print works - already underway through the ARROW project - or the pragmatic use of a cut-off date that would impose a lower threshold for diligent search for works from before a certain date.

Resource: Europeana – Next Steps. Communication from the Commission to the European Parlament, the Council, the European Economic and Council Committee and the Committee of the Regions. COM (2009) 440 final. Brussels, 28.08.2009. 10 p. <com 2009_0440 en01.pdf>

In Octomber 2009 the European Commission launched a reflection paper on a European Digital Single Market and launched a public consultation calling for fresh ideas for a more vibrant market for online distribution of creative content. The paper highlights the importance of copyright as a basis for creativity in, Europe's cultural heritage.The Commission said that specific consumer- and competition-friendly rules were needed to create a genuine Single Market for creative content on the internet. To do this, it set out three areas where legislative action was needed to:

Make sure creativity is rewarded so that creators, rightholders, and Europe's cultural diversity can thrive in the digital world;

Give consumers clearly-priced, legal means of accessing a wide range of content through digital networks anywhere, anytime;

Promote a level playing field for new business models and innovative solutions for the distribution of creative content across the EU.

Resource: European Commission Launches Reflection on a Digital Single Market for Creative Content Online. 22.10.2009.IP/09/1563 <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1563&format=HTML&aged=0&language=EN&guiLanguage=en>

Campaign "Join Europeana"MEPs support the goal of having 10 million objects in

Europeana by June 2010 and call for a target of at least 15 million by 2015;

“Access to the Europeana portal and viewing documents without downloading must be free of charge for private individuals and public institutions" and any charges for downloads and printouts of copyright materials "should be socially acceptable";

MEPs also stress that "the portal should take into account the needs of disabled people";

MEPs also propose a funding and advertising campaign entitled "Join Europeana" etc.

Resources: Europeana on-line library should be enlarged, but still respect copyright, say MEPs. // Culture, 23.02.2010, REF. : 20100223IPR69351 <http://www.europarl.europa.eu/news/expert/infopress_page/037-69352-054-02-09-906-20100223IPR69351-23-02-2010-2010-false/default_bg.htm>

More resources needed for Europeana on-line library. // Culture, 05.05.2010, REF. . : 20100504IPR74113<http://www.europarl.europa.eu/news/expert/infopress_page/037-74114-125-05-19-906-20100504IPR74113-05-05-2010-2010-false/default_bg.htm>

IFLA Presidental Meeting 2011

Libraries Driving Access to Knowledge:Action for Europe

14 April 2011 - 15 April 2011

Koninklijke Bibliotheek, National Library of the NetherlandsThe Hague, Netherlands

The IFLA Presidential Meeting 2011 was a two-day conference jointly organised by the International Federation of Library Associations and Institutions (IFLA) and the Netherlands Library Forum (FOBID).

Under the theme Libraries driving access to knowledge: Action for Europe, this conference had prominent and inspiring speakers to address current issues for libraries concerning copyright, open access and human rights. The audience was open for anyone who is interested. Also invited are stakeholders, politicians and decision-makers from European political institutions, UN bodies, international NGOs, private sector and industry, library organizations and the press.

More information: http://www.ifla.org/en/president/programme/2011

The emergence of new communication and information technologies, new media and new media predetermines the ambition of copyright legislation worldwide to respond to these developments, to keep pace with changes and to provide the necessary legal framework.

Emphasizing the role of libraries as creators of digital content, as gateways for access to digitized information and as a factor in overcome the digital divide and isolation - this lecture summarizes the positions of European Commission and library organizations IFLA, EBLIDA, LIBER, eIFL etc. and their interaction with the World Intellectual Property Organization (WIPO) in defending the interests of libraries and their users in preparing changes to information legislation, who aimed placing the management of copyright in line with the digital technologies and expand use of Internet.

Digital Libraries – Copyright Issues

Assoc. Prof. PhD Tania Todorova

Library Management Department, SULSITdr.tanya.todorova@gmail.com