The Changing Face of Exclusive Rights on Digital Cultural Content after the 2013 PSI Directive 3 rd LAPSI 2.0 Meeting – 10 th October 2014

Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (PSI) represents the renewed legal framework aimed at improving the adoption of open data practices by European public sector bodies (PSBs) It does so by broadening the spectrum of PSBs which are subject to its rules to include museums, libraries (including university libraries) and archives → aka CULTURAL PSBs PSI (any representation/compilation of acts, facts or information whatever its medium) held by cultural PSBs → aka CULTURAL PSI 2 WHERE? HOW?

Due to the numerous benefits arising out of the digitisation of cultural heritage, its publication online, and its re-use to all stakeholders involved in the cultural sector, e.g. - cultural institutions - creative industries - European and national aggregators - SMEs operating in the tourism sector - tourists to society at large - access to culture and knowledge - new job opportunities and economic growth - cultural heritage preservation and exploitation - innovative and inclusive technologies 3

Digital Cultural Heritage (DCH) Digitisation means taking analogue content — books, films, photographs — and converting it into digital information DCH differs substantially from its physical counterpart thanks to the possibilities enabled: –by digital processing –by digital information Digitisation entails: –enhanced access (online accessibility, large-scale accessibility, interactive accessibility, personalised accessibility) –a change in the way that content is used (extraction, aggregation, reuse) 4

While the joint effect of digital processing and digital information is promising, the lawfulness of activities relating to DCH remains largely uncertain 5

1 st step: CREATION of DCH (I) (born-digital heritage vs digitised heritage) The directions of cultural heritage digitisation: 1. out-of-copyright works digitisationno authorisation 2. in-copyright works digitisation 6 WITH authorisation - by rightholder via direct or open licenses - by collecting societies (e.g. ECLs) WITHOUT authorisation - via special legislative provisions (e.g. orphan works) - via copyright exceptions and limitations: e.g. art. 5(2)(c) Directive 2001/29/EC (InfoSoc Directive) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, for non-commercial purpose

2 nd step: ACCESS to DCH 7 According to a copyright perspective, access may involve the engagement with a series of restricted activities (communication, making available) In these cases, right clearance is needed …unless copyright exceptions and limitations apply e.g. art. 5(3)(n) InfoSoc Directive 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 publicly accessible libraries, educational establishments or museums, or archives No authorisation to access Authorisation under the conditions set by the IP holder

The 2 comes after the 1: the ancillary right to digitise In Sep 2014, the CJEU ruled that Article 5(3)(n) of the InfoSoc Directive, read in conjunction with Article 5(2)(c) of the same directive, must be interpreted as allowing Member States to grant – at certain conditions – publicly accessible libraries the right to digitise the works contained in their collections (C-117/13) In other words, the ‘right’ to digitise is the pre-requisite to the ‘right’ to communicate/make available to the public in favour of publicly accessible libraries for their collections… 8

3 rd step: REUSE of DCH In contrast to conventional CH, works are digitised also to be further used in a different way, including indexes or metadata that enable or facilitate the retrieval of (even in- copyright) works → no authorisation required the exploitation of the so-called ‘computational potential’ of DCH (automated text processing, eg text- and data-mining) → allowed only under a specific exception or limitation ex art. 5(2)(c) InfoSoc Directive, eg Norway innovative re-use for digital content products and services → 2013 PSI Directive 9

In general, the 2013 Directive requires: -PSBs to ensure the re-use of accessible PSI (according to the national rules on access) -PSBs to adopt a presumption in favour of openness To the extent permitted by: 1.certain bodies of law, such as data protection law and intellectual property rights (IPRs) 2.contracts or other arrangements between the PSBs holding the documents and third parties 10

1. in-copyright cultural PSI DENIAL to reuse is possible in case of PSI for which a.third parties hold IPRs, and without the obligation to indicate the rights holder (Article /37) b.employees of PSBs hold IPRs: economic and moral rights (Rec 12, /37) c.the PSB holds IPRs (‘where the re-use of such documents is allowed’ Article /37) 2.out-of-copyright cultural PSI When PSI is reusable (according to the decision made by the PSB), then the institution shall ensure the reuse for non- commercial as well as commercial purposes but… 11 In these cases, rights clearance is needed Authorisation under the conditions set by the IP holders No authorisation to reuse

2. Exclusive arrangements for cultural PSI Exclusive arrangements are ALLOWED when necessary for: a.the provision of a service in the public interest, provided that: –the arrangement is transparent and public –the arrangement is subject to regular review and, in any event, every 3 years b.the digitisation of cultural resources, provided that: –the arrangement is transparent and public –the exclusivity does not exceed 10 years (if longer, reviewed during the 11 th year and at least every seven years thereafter) 12

In light of this… Cultural PSBs holding copyright or sui generis rights on their PSI can refuse reuse on the basis of their IPRs For out-of-copyright works exclusivity can originate from different sources rather than IPRs! Exclusive arrangements have the potential and reality of contracting in or out of public interest values, like A2K And even CH regulation can impinge on the use of cultural PSI, like in Italy So what? It’s a matter of choice! Cultural PSBs should be leaders in the creation of value from the encounter of cultural heritage and digital technologies… 13

Thank you! Bocconi University – Department of Legal Studies ASK Centre – Art, Science and Knowledge LAPSI