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

2. 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

3. 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)

4. 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.

5. 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.

6. 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

7. 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

8. 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

9. 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?

10. 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

11. 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

12. 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

13. 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

14. 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."

15. 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.

16. 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.

17. 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.

18. 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

19. 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.

20. 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.

21. ProfessoriNiklas Bruun
Contact
ProfessoriNiklas Bruun
IPR University Center
PL 4 (Yliopistonkatu 3)
00014 Helsingin yliopisto
puh