C OPYRIGHT C HALLENGES IN R ESEARCH 03/02/16 Atelier Multimédia, EUI 1

I.Different national copyright rules Basic copyright concepts Focus on access and use of material from libraries, archives, museums and the web: copyright exceptions for research EU vs. national level II. Copyright on artworks: exception benefitting art in the public domain Use of images from archival research Tracking “properties” in artwork 2 Two sessions

1. IP Vocabulary: Copyright = Exclusive rights on literary works that are original: writings (books, journals, newspapers, web content), software, music, audiovisual content, photos, dance, architecture (term of protection: usually life of the author plus 70 years) Exclusive rights: reproduction, distribution, communication to the public, derivative works, moral rights Patents = Exclusive right granted for an invention (term of protection: usually 20 years) Trademarks = Brand names, logos, that identify and distinguish products and services within a market (term of protection: usually 20 years) 3 Basic Copyright Concepts SESSION I

2. Basic Principles: -Originality -‘Fixation’ requirement (usually) -Protection of expression, not ideas or facts -No formalities (Berne convention) 3. Differentiation to Plagiarism: -Infringement of holder’s exclusive rights without consent/compensation- Copying of ideas without attribution -Violation of legal rules – Violation of academic rules and perhaps contractual obligations -Violation of financial and/or moral rights / Violation of moral rights 4 Basic Copyright Concepts SESSION I

1.Two categories of works  3 categories adding a grey zone (orphans, out-of-print) 2.Why the arrow representation? What is the default? 3.Legal status dictates accessibility. Rules (term of protection) and practical consequences (free v. licenced use) 5 Basic Copyright Concepts Public DomainGrey zone Copyrighted material/works SESSION I

Within the EU: Copyright is territorial = rights are enforced on a country by country basis under national law The dissemination of copyright-protected content on the Internet (e.g. by an online e-book seller) requires, in principle an authorisation for each national territory in which the content is communicated to the public. Right-holders can authorise multi-territorial or pan-European licenses. EU-level steps to facilitate multi-territorial licenses EU-level discussions about harmonisation prospects: portability of owned content 6 Lack of harmonization as the basic source of confusion SESSION I

Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society Directive 2012/28/EU on the digitization and online display of orphan works (‘certain permitted uses’) & the creation of online EU-wide database for orphan works other acquis: htm htm 7 Relevant EU Directives and Regulations SESSION I

InfoSoc Directive – Exceptions for research Photocopying exception under fair compensation Publically accessible libraries, educational establishments, museums, archives/ Non commercial use sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non- commercial purpose to be achieved quotations for purposes such as criticism or review, provided that they relate to a work or other subject- matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose 8 SESSION I

InfoSoc Directive – Exceptions for research 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 paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections; use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article. 9 SESSION I

InfoSoc Directive – Exceptions for research 3 steps test: The exceptions and limitations shall only be applied 1.in certain special cases 2.which do not conflict with a normal exploitation of the work or other subject-matter and 3.do not unreasonably prejudice the legitimate interests of the right-holder. Nationally implemented: resort to national laws 10 SESSION I

Groups affected: researchers, archivists, librarians, artists, museum curators 2014 Consultation on the Review of the EU Copyright rules: classification of interest groups: Commission steps to broaden access to online content and modernize EU Copyright rules (Release-2015): Making EU copyright rules fit for the digital age release_IP _en.htm release_IP _en.htm 11 Timing and relevance: Why Copyright? End users/Consumers Institutional Users Authors/performer s and CMOs (Collective Management Organizations) Publishers/produ cers/broadcaster s Intermediaries/di stributors/other service providers SESSION I

Making EU copyright rules fit for the digital age Revisiting the exceptions: Research & Education is declared as a priority: text and data mining technologies to analyse large sets of data / online courses Print disabled – Marrakesh Treaty Proclaimed goals – (by spring 2016): allow public interest research organisations to carry out text and data mining of content they have lawful access to (…) for scientific research purposes; provide clarity on the scope of the EU exception for ‘illustration for teaching’, and its application to digital uses and to online learning; provide a clear space for preservation by cultural heritage institutions, reflecting the use of digital technologies for preservation and the needs of born-digital and digitised works; support remote consultation, in closed electronic networks, of works held in research and academic libraries and other relevant institutions, for research and private study Reduce legal uncertainty for Internet users who upload photos of buildings and public art permanently located in public places (panorama exception) 12 SESSION I

US: Authors Guild v. HathiTrust (2012 /June 2014, decided on appeal) Authors Guild v. Google (October 2015) EU: Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG (Sept. 2014, decided) Dutch Court’s preliminary reference (also Sept. 2014) 13 Case-law developments: Digitization SESSION I

Case-law developments 14 UK fair-use/ Holocaust database IT archivistici-in-italia-la-situazione-attuale/#more-1342 SESSION I

Common problems? (examples) -Photographing archival material or artwork to use at Ph.D. or for a publication (access/ further use)/ Public domain status v. ownership of the photo or the material -Creating catalogues for museum exhibitions -Other legal considerations (i.e. privacy, confidentiality) -Towards SESSION II 15 Your experiences SESSION I

Thank you for your attention and your interest 16 Marta Caroscio, Doctor in Medieval Archaeology and History, IT Ministry of Culture Argyri Panezi, Ph.D. Candidate, EUI Department of Law