Barbara Dierickx, Rony Vissers Europeana Meeting, Belgium 16 December 2009

1. Europeana and the accessibility of
digital cultural heritage
Author’s Rights and the online disclosure of
cultural heritage collections
Barbara Dierickx & Rony Vissers
KBR, Brussels
December 16 2009

2. Europeana and the accessibility of digital cultural heritage
PACKED vzw
= Platform for the Archiving and Conservation of Audiovisual Arts
Packed vzw is the national Belgian coordinator of ATHENA project
‘Access to Cultural Heritage Networks Across Europe’
(http://www.athenaeurope.org)
Goal of ATHENA:
- Research on metadata standards, semantics, multi-linguality, copyright…
- Deliver content from museum collections to Europeana
Packed vzw is the leader of a work package on intellectual property rights
and the online disclosure of digital museum collections (WP6)

3. Europeana and the accessibility of digital cultural heritage
Digitisation
- Offers new opportunities for the preservation of cultural heritage content
- Is necessary for the distribution of cultural content through the world wide
web
<-> Author’s Rights
Digitisation
= Reproduction + uploading to the web = making available
-> This is an exclusive rights of the author
Content in collections of museums, libraries, broadcasting organisations, ...
= protected by intellectual property rights of a third person (author,
performing artist, producer, …)
-> Permission for use of the work

4. Europeana and the accessibility of digital cultural heritage
What is author’s right?
= Kind of monopoly awarded to the creator, i.e. exclusive right to perform
certain actions with regards to original creations (making it public,
reproduction, ...)
> Materialised form (not ideas) + originality (characteristic for the
creator)
> Moral rights + economic rights
> Limited in time: 70 years after death of the creator
> Books, music, photographs, films, paintings, geographical maps,
computer software...
Protection is the result of the creation, no special action required
What is not protected? Public domain: 70 years after death, not original
Object in collection of institution ≠ institution manages all the rights

5. Europeana and the accessibility of digital cultural heritage
Moral rights + economic rights
Moral rights:
- Right to decide when and how to make public
- Right to paternity (name, pseudonym, anonymous)
- Right to integrity (no changes, no damage of name and honour)
-> Not transferable
Economic rights (exploitation):
- Right to make reproductions
- Right to control the distribution
- Right to public communication, display, performance
->Transferable

6. Europeana and the accessibility of digital cultural heritage
Who is the author?
Author = the natural person who has created the work
> but he can transfer some of his rights to his employer, publisher, …
Presumption: the author is the person whose name is mentioned on the
work, unless otherwise proven
Author’s right (continental countries like Belgium)
- Emphasis on author (natural person)
- Moral rights
- Exceptions: strictly described
Copyright (Anglo-Saxon countries like U.K. and U.S.)
- Emphasis on investment
- Moral rights almost non-existing
- Exceptions: ‘fair use’
EU Copyright Directive <-> national practices

7. Europeana and the accessibility of digital cultural heritage
Neighbouring Rights
> Not a protection of the work itself but of a performance
- Musicians, actors, … (performing artists)
- Producers
- Broadcast organisations
Paradox
Author’s Rights stimulate cultural production,
but create at the same a monopoly position

8. Europeana and the accessibility of digital cultural heritage
Do all works enjoy protection? Originality?
Original photo = own intellectual creation of the author
> Picture of museum object or reproduction of archival document =
original?
Goal of a reproduction: truthful, realistic and technically perfect
representation
Two-dimensional: painting, drawing, document
Three-dimensional: statue, installation, building
Lack of intellectual input photographer <-> ‘sweat of the brow’ (UK)
Belgium: grey zone without legal jurisprudence

9. Europeana and the accessibility of digital cultural heritage
Exceptions 1
A list of exceptions: citation, caricature/pastiche, temporary/technical
reproduction, education, …
Our interest = exceptions to the benefit of libraries, archives, museums
Certain reproductions & forms of disclosure are allowed
-> under strict conditions
Example: reproduction for preservation
- Belgium: reproduction allowed “in the framework of and justified by the
preservation of the cultural and scientific patrimony”
- Example: the Netherlands - Italy
- Example: sound recording British Library

10. Europeana and the accessibility of digital cultural heritage
Exceptions 2
Example: making available through a closed network
- Physical limitation <-> opportunities of internet + ambitions of Europeana
- Example: Dutch Filmmuseum and Cinematek
Other exceptions:
- Example: reproduction and communication to the public “for the purpose
of advertising, for public exhibitions or public sales of artworks, in as far as
it is necessary for the promotion of those events, not including any other
commercial use” is allowed without explicit permission.
But: the archiving of a webpage?

11. Europeana and the accessibility of digital cultural heritage
Permission for use: license agreement 1
Rights holder grants permission for an agreed kind of use (in a specific
context, under # conditions, …)
E.g. for the online display of a work
Negotiating an agreement
= huge tasks for big collections with many author
= severe financial implications for heritage institutions in case the author
is represented by a collecting society
E.g. SABAM
- One-stop-shop for author’s rights <-> search for rights holder
- Lower levies for heritage institutions
- Remuneration is obligatory <-> individual contact with rights holder

12. Europeana and the accessibility of digital cultural heritage
Permission for use: license agreement 2
Example: Royal Institute for Cultural Heritage (KIK/IRPA)
Mission = develop and manage a scientific photographical inventory of
art objects in Belgium
Website: metadata + thumbnail
E.g. ‘Ensor’ or ‘Magritte’: artwork copyright protected
Only display of metadata possible, no thumbnail
Negotiating with collecting societies through alliance of federal
scientific institutions = solution?

14. Europeana and the accessibility of digital cultural heritage
Permission for use: license agreement 3
Permission for online disclosure <-> common practice of cultural heritage
institutions: physical disclosure of collection never implied getting
permission -> online disclosure is seen by the institutions as an extension
of this practice
License agreements = challenging / exceeding the possibilities of cultural
heritage institution
Concluding new license agreement: broad permission
Display of previews = free of copyright?
- Low resolution / cropping <-> ‘valuable’ re-use?
- Thumbnail / cropped image as moral rights infringement?

15. Europeana and the accessibility of digital cultural heritage
Position of the author
> Works created as employee: rights held by the creator or rights held by
the employer?
Rights hold by the creator. The transfer of rights to employer is since 1994
only possible by an explicit and written agreement.
Online images:
- Was photographer a freelancer / contractually employed? If the
photographer was an employee, was there a transfer of rights to the
employer?
- Is there copyright on the photographed object itself?

16. Europeana and the accessibility of digital cultural heritage
What does copyright mean for orphan works?
Orphan work = unknown and untraceable author
-> permission for use can not be obtained
-> no reproduction or online display possible
Heritage field demands legal exception for orphan works: permission on
condition of reasonable remuneration to rightsholder in case of
identification
Europe:
- Memorandum of Understanding on Orphan Works
- High Level Expert Group ‘Final Report of the Copyright Subgroup’

17. Europeana and the accessibility of digital cultural heritage
What does copyright mean for orphan works?
Heritage institutions:
- In practice it very rarely occurs that a rightsholder of a presumed orphan
work present himself with a claim
- An extensive search for a rightsholder implies many costs given the
current circumstances
‘Notice and takedown’ policy: prevents claims but does not guarantee the
continuous online existence of the content

18. Europeana and the accessibility of digital cultural heritage
What does copyright mean for orphan works?
Report ‘In From The Cold’
326 cultural heritage institutions (museums, libraries, archives, galleries)
Average of 92% of orphan works in collection
5 to 10 percent of works; archives 21 to 30 percent
Time-consuming search for the rights holder:
“On the project, it took two people three years full time to work on the
copyright for 40,000 works.”
“As part of their Archival Sound Project, the British Library identified 299
rights holders whose permission was required. An analysis of the project
revealed that: ‘A total of 150 hours was spent by a freelance researcher,
and 152 hours was spent by British Library staff on seeking permission,
which resulted in eight permissions being received.’”

19. Europeana and the accessibility of digital cultural heritage
The solution? Different opinions …
-‘opt-out’ policy: placing images online without permission. Complaint of
rightsholder: content is taken offline immediately
-> Investment in digitisation without guarantee that result will stay online
- Avoiding all risks: clearing all rights yourself
-> Expensive and labour-intensive way of working
- Work with collecting societies
-> Efficient and user-friendly model on paper but lack of transparency,
associated costs and limited flexibility
Heritage sector demands a new legal exception in copyright that will allow for
free disclosure of protected works from their collection through the internet

20. Europeana and the accessibility of digital cultural heritage
The solution? Government as facilitator …
Report ‘Auteursrecht in de digitale samenleving’
Responsibility of the cultural heritage sector: need for coordinated definition of
position within different cultural subsectors, through platform organisations or
interest groups
-> Get a stronger voice as a stakeholder in the copyright policy on
European and Belgian level
Creation of an external consultation body: Flemish Cultural government as
ideal initiator for the instalment of a consultation body on copyright in order to
facilitate the dialogue
-> creation of a standard contractual licensing model that can be
supported by rights holders as well as cultural representatives

21. Europeana and the accessibility of digital cultural heritage
The solution? Europe(ana) …
Demand for such an exception has been expressed to the European
Commission in reaction on ‘Green Paper on Copyright in the Knowledge
Economy’ and consultation ‘Europeana: next steps’
Europeana ‘Public Domain Charter’: work that is in the public domain in analog
form should retain this status after digitisation
Public Domain = works on which term of protection for copyright has
expired + ‘essential commons of information’
ATHENA: Guidance of partner institutions within current legislative framework
in search of clearing rights on objects as much as possible -> online tool
September 2010.

22. Europeana and the accessibility of digital cultural heritage
New trends
Current legislative framework:
- No all-embracing exception to CR for all forms of digitisation,
preservation and disclosure that cultural heritage institutions would want to
carry out.
- No uniform package of guidelines on digitisation, disclosure and
distribution of digital cultural heritage.
Consequence: cultural heritage institutions have to figure out for themselves
what exceptions copyright grants them, and under which conditions they can
be called upon.

23. Europeana and the accessibility of digital cultural heritage
New trends
Discrepancy between legal regulations and trends in practice: ‘print-on-
demand’, digital preservation, digital libraries and aggregators of cultural
heritage …
Side of the (cultural) user: complexity and lack of transparency of legislation for
non-jurists leads to insecurity on the # of permissions that are (not) required
from # rightsholders
Scope of legal exceptions is too little known
Emerging from the cultural heritage field + fuelled by organisations such as
Wikimedia Foundation and Creative Commons: new ways of digital heritage
distribution to a global audience.

24. Europeana and the accessibility of digital cultural heritage
New trends
In return for releasing digital content -> return for the participating institution;
extension of network, connecting to previously unknown audience, matching of
sources to which the institution previously had no access.
Wiki Loves Art
Bundesarchiv + Wikipedia
Nationaal Archief + Flickr Commons
Open Beelden

25. Wiki Loves Art
Museums open their doors to visitors during one month so they can take pictures of the
collection. Pictures are displayed on Wikipedia under a CCLicense, so articles can be enriched
with these images. Website: http://www.wikilovesart.nl/

26. Bundesarchiv + Wikipedia
The German Bundesarchiv cooperates with Wikimedia Germany. 100.000 images from the
archive are made available on Wikipedia under a CClicense. In exchange, Wikimedia matches
the images of the Bundesarchiv with content from the German National Library and
Wikipedia. Website: http://commons.wikimedia.org/wiki/Commons:Bundesarchiv

27. Nationaal Archief + FlickrCommons
The Dutch Nationaal Archief made a part of its photo collection worldwide available through
Flickr The Commons, an initiative that offers public institutions a common platform to share
their photo collections with a large audience, in order to expand their knowledge about the
collections with information from the website visitors. Website:
http://www.flickr.com/photos/nationaalarchief/

28. Open Beelden
Open Images is a new media platform that offers access to a selection of archival materials for
creative re-use. Fragments from audiovisual collections may be remixed here into new works.
Website: http://www.openbeelden.nl

29. Europeana and the accessibility of digital cultural heritage
Case: newspaper digitisation at the Royal Library of Belgium
Programme for the digitisation of collections of federal scientific institutions
Royal Library and Studie- en documentatiecentrum Oorlog en Hedendaagse
Maatschappij (SOMA) started in 2007 with the digitisation of Belgian press from
1830 to 1950 + clandestine and censored press from both world wars.
… Restricted by copyright?
Thank you for your attention
barbara@packed.be
rony@packed.be
http://www.packed.be