Professor Niklas Bruun The preservation of the European film heritage – is copyright an obstacle? Bayreuth 11.5.2011 Professor Niklas Bruun DIGITAL AGENDA FOR EUROPEAN FILM HERITAGE (DAEFH) IPR University Center/University of Helsinki

Starting points Cinema is digital – 2011–2012 final tipping point. D-cinema distribution in place The film heritage of Europe will be lost within a few years if nothing is done About 1200 films produced yearly within the European Union Member States 2.6.2018

Problem areas collection preservation access management the purpose of the whole exercise (preserve the history of mankind for future generations or general cultural or educational access) 2.6.2018

Collection The present situation is very different in separate Member States: A total of 11 Member States have legal obligation for the deposit cinematographic works In 15 Member States the compulsory deposit only extends to films that have recieved public funding In Belgium and the Netherlands only voluntary deposit. 2.6.2018

Collection of digital material Only a minority of Members States collects such material Legal efforts on EU-level to support collection, Council Conclusions 2010 (OJ C 324/1) The European Union wants to promote and adapt instruments on deposition to apply in the digital area. FIAPF/ACE framework agreement on voluntary deposit of films to preservation archives. 2.6.2018

Copyright and collection Is there a problem?? What will the collector do? Ownership of the films (the material)/ownership in copyright Knowledge of right holders for clearance – a problem with old films Here the problem with orphan works come up/if legal issues are relevant 2.6.2018

Preservation What are we collecting? What are we doing with the collected material? Improvements of quality European Standards? In order to make online access in Europe possible? The problem with digital form – it needs updating 2.6.2018

Preservation 2 Who are the archives? You can as a rightholder give up control for preservation – in some cases If you cannot copy you cannot preserve and the data will disappear ----- Content access …is the fear Archives need to move to digital 2.6.2018

Restoration Mature technology = low or no development Not possible to restore / digitize everything = a case-by-case scenario Costs are high – how to cover and reduce them? 2.6.2018

European Union and Europeana All analog elements become useless for access (= all out of print) Demand is high Access has high commercial and cultural value (e.g. no education without access) To digitize everything seems impossible – but most/all FHI digitize already 2.6.2018

Copyright problems Old films – knowledge and information concerning rightholders; Solution – regulation on Orphan works 2. What can the archives do? A question of exceptions and limitations 3. Access – the most difficult problem: Commercial/non commercial use 4. Territoriality 2.6.2018

Orphan works A Directive in the pipeline on certain permitted uses of orphan works The objective is to create a legal framework to ensure a legal crossborder online access to orphan works contained in digital libraries Starting point that a diligent search always has to be done in order to find the rightholders 2.6.2018

Films from the 2000 onwards A significant part of them will be collected by archives although many difficulties (US/English films etc). The problem: How can these archives be made accessible? Exceptions for non commercial use Contractual arrangements Legal solutions 2.6.2018

Exceptions The Information Society Copyright Directive (2001/29/EC) provides for two relevant exceptions: 1) Under the Article 5 para 2(c), Member States may provide "an exception to the right of reproduction in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage." 2.6.2018

Exceptions 2 2) Under Art 5 para 3 (n), Member States may provide "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 establishments referred to in para 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections." This exception only make copyrighted films in archives available to a very limited audience and for limited purposes. These exceptions implemented in all MS except for the UK and Cyprus.   2.6.2018

Extended collective licensing (ECL) Originally Nordic hybrid of voluntary collective licensing and compulsory licensing Provides full coverage • Requirements: A genuine need that cannot be satisfied by voluntary licensing Underlying blanket license between collective management organization (CMO) and user, licensing certain types of works for specified uses. 2.6.2018

Extended collective licensing 2 CMO representative of “numerous” or “significant number” of rightholders whose works are of the type licensed and are used in the country in question Provision in copyright legislation extending effect of agreement to right holders who are not affiliated with the CMO. Non-affiliates entitled to the same benefits as affiliates; individual compensation Non-affiliates (mostly) entitled to opt out. 2.6.2018

ECL – a realistic solution? Strong opposition – organisations must have a mandate In certain parts of Europe – an optional alternative Perhaps for Orphan works? Individual contracting – limited effects 2.6.2018

Legislative solutions Obligation to deposit can be extended The problems with orphan works should be solved The INFOSOC-directive Art 5 para 3 (n) exception should be revised in order to allow for restricted online educational use A compulsory license could be introduced in order to establish a right to compensation for rightholders for non-commercial communication of films to the public: Schools, universities etc. 2.6.2018

Conclusion Preservation of our European cultural film heritage is an important mission – there is not much time to loose Copyright law clearly pose challenges for these activities, solutions both on national and EU-level is needed, the problem is partly rooted in the split of the audiovisual market into national/EU/glo-bal. 2.6.2018

ProfessoriNiklas Bruun Contact ProfessoriNiklas Bruun IPR University Center PL 4 (Yliopistonkatu 3) 00014 Helsingin yliopisto puh. +358 50 5996801 niklas.bruun@helsinki.fi www.iprinfo.com 2.6.2018