1. Copyright & digital cultural heritage: an update from the Dutch practice and abroad Annemarie Beunen, copyright lawyer National Library of the Netherlands Cultivate London, Tate Modern, 27 April 2013

2. Outline Copyright theory vs clearing methods in practice Our experience in the Netherlands with large-scale digitization projects Initiatives abroad Concluding remarks

3. Copyright & cultural heritage online Governments and European Commission subsidize cultural heritage institutions (CHIs) to digitize and put their collections online. (Flagship: Europeana.eu, portal for heritage collections of CHIs in EU). Main task of CHIs is to give broad access to their collection, which is often paid for by public money. What better way to reach the public than via internet? Most people do not look any further. But this touches upon copyright if the works are still protected: 1. digitization = reproduction 2. putting online = communication to the public Ownership of physical works does not include acquiring © in them!

4. Title of the presentation

5. Copyright challenges Basic rule: every use of a ©work requires the author’s permission beforehand, unless an exception in the national Copyright Act can be invoked. Misunderstanding: all non-commercial uses do not infringe ©. EU Copyright Directive does not contain an exception which allows putting ©heritage online for everyone for free (only in a closed network on the CHI’s premises). So: permission of all right holders is required beforehand, until 70 years after their death.

6. www.publicdomainday.org

7. How to deal with copyright? Two clearing methods accepted by European Commission: 1. Search for and ask permission beforehand of every individual right holder (cf copyright law in general and EU Orphan Works Directive). 2. Collective licensing with CMOs for members against payment. With extended effect: also for non-members (cf Scandinavian Extended Collective Licensing and Memorandum of Understanding on Out-of-commerce Works 2011). Recital 24 of Orphan Works Directive: ‘This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences, (…), collective management or similar arrangements or a combination of them, including for mass digitisation.’

8. 1. Individual clearing: e.g. EU Orphan Works Directive (adopted 25 Oct 2012) Provides a solution for online use of works by right holders who are unknown or unlocatable, where you cannot get permission. Examples of orphan works: books without author names or pseudonyms many photos in archives, often without names at the back, e.g. by local or amateur photographers older works by deceased authors whose heirs are unlocatable, e.g. because of emigration. Special problems: ©works where owner of the digital rights is unknown. E.g. unclear book publishing contracts between author and publisher. works with unknown copyright status: still protected or not? E.g. works by less known authors whose year of death is unknown. Or identification problems for authors with common names.

9. Title of the presentation Examples of orphan works

10. Directive enables legal use of orphans: Only for books, journals, newspapers, films and music (illustrations, photos or art only when embedded in them). requires a diligent search for the right holder(s) of every ©work (=individual clearing), by checking a minimum set of national sources in country of 1 st publication. If no success: an exception allows CHIs to digitise and put orphans online for aims related to their public-interest mission. Provided that CHIs record the diligent searches and provide the results to the national authorities, incl their contact info and specific use of the orphans. To be recorded in 1 public EU database. Fair compensation is due to reappearing right holders for the use already made, taking into account its non-commercial character and possible harm to right holders. To be implemented in national copyright acts before Oct 2014.

11. Pros and cons of individual clearing Pros: If found, then right holders are often prepared to give permis- sion for online use by CHIs for free, for whole length of their ©. Contact with right holder results in more knowledge about his/her works. Contact address also useful for future coopera- tion e.g. exhibitions, acquiring other works for collection. Cons: High costs for: 1) diligent searches, 2) recording the searches, 3) remuneration for appearing right holders. All to be paid for with public money, for works without commercial value, otherwise they would not have been orphans, and in-commerce. Searching not doable for large-scale digitisation e.g. of newspapers, journals, or other works with many right holders.

12. 2. Collective licensing with CMOs: 2011 Memorandum of Understanding on Digitisation and Making available of Out-of-commerce Works Non-binding declaration signed by international organisations of libraries, publishers, authors and CMOs. On books and learned journals that are out-of-commerce, in paper or digital form. Allows online use by CHIs via paying for a collective licensing with representative CMOs Extended effect: CMOs can licence also for non-members. Esp. suitable for large-scale projects as no diligent search is required. Right holders may opt out (e.g. after digitisation project is made widely known beforehand). Plea for cross-border use (internet is worldwide). CMOs can now only license for use within national boundaries (geo blocking: access for national IP addresses only). Requires: Well-functioning, transparant and representative CMOs. Legal basis for extended effect and cross-border effect.

13. Pros and cons of extended collective licensing Pros: No costs for diligent searches More works can be put online in a shorter time than after searching Cons CMOs grant licences of limited duration while CHIs work for eternity: CHIs must keep on paying. CMOs do not search for non-members; risk of undistributable money. Risk that right holders opt out.

14. Large-scale projects Typical for large CHIs, like national libraries (if money is available) Diligent search for right holders of every work not feasible, e.g. countless freelance contributions in millions of pages of newspapers, journals. Plus: the older the works, the more difficult it is to find right holders, e.g. older out-of-commerce works where author is dead. Examples of large-scale projects by our library: Dutch newspapers website (ca. 9 million pages from 1618-1995) Diverse Dutch journals until 1940 (several contributions still in ©).

15. Copyright status of newspapers & journals under Dutch law 1)Contributions by employees of the newspaper/journal publisher: © for the publisher, until 70 yrs after publication. We concluded licence contracts with every individual publisher. 2)Contributions created by non-employees/freelancers: © for them, until 70 yrs after death. We concluded collective licences with CMOs also for non- members. (One photographer opted out so far).

18. Latest challenge: books & their copyright status Who owns © : author or publisher? –Lbrary has no insight in their contracts –Contracts of older out-of-commerce books often do not exist anymore –Copyright notice (e.g.: ©Ernst Gombrich 1970) has been in use in NL only from the end of 1960s. Sometimes ‘©publisher’ is mentioned incorrectly when no written ©transfer contract was signed. Who owns the digital rights? Did older transfer contracts include them? Dutch case law: –Depends on the content of the contract and the intention of the parties at that time. –If doubt, DCA says that ©transfer only covers the rights which are explicitly mentioned in the contract (‘incl future expl rights’). Conclusion: 100% certainty is impossible for older books.

19. Norway National Library: Bookshelf project since 2009 Enables online access to ©books published in Norway until 2000. Via a collective contract with Kopinor, a Norwegian CMO which represents both authors and publishers. Based on Extended Collective Licensing (ECL): Under the Norw Copyright Act, Kopinor may license works of both members and non-members. No diligent search per work required, right holders can claim licence fee with CMO or opt out. Characteristics of the contract: Gratis online access for Norwegian IP-nrs: ECL nationally restricted. Library pays a yearly fee of € 0.05 per book page until 2017. Access is ‘read only’: downloading or printing not possible.

20. French Act on out-of-commerce books 1 March 2012 Out-of-commerce (paper/digital form), published in France until 2000. Facilitates new commercial digital exploitation of full-text by commercial parties such as publishers. Unless initial publisher/author opts out within 6 months after book was included in an out-of-commerce register. Licence for commercial use to be given by a CMO, also for non- members (cf ECL). Distribution of licence fee 50/50% between author & publisher. Cons Unclear but probably: digital exploitation within France only. Putting books online not possible for libraries. For orphans for which no right holder has appeared after 10 yrs: access only onsite for patrons. To be expected: very few commercial parties interested in out-of- commerce books, otherwise they would still have been in commerce.

21. Germany Government recently has presented bills on: 1) implementing Orphan Works Directive 2) out-of-commerce works, with legal basis for ECL Bill on out-of-commerce works: –Applies to books and journals published before 1966 –To be registered in an out-of-commerce register –Authors and publishers must opt out within 6 weeks –Otherwise books may be digitised by non-commercial CHIs after paying a CMO for a licence (cf ECL and MoU). Bills expected to be passed before the summer holidays.

22. United Kingdom Government is considering legislation on: 1) Licensing of orphan works 2) Introduction of a legal basis for ECL (also for use by commercial parties)

23. Concluding remarks Clearing methods: ‘tailored ©clearing’: decide most suitable clearing method per specific work category/category of right holders. For mass digitisation: no requirement of diligent search and plea for legal basis for ECL in NL. Challenges: What is a fair licence fee for non-commercial online use by CHIs? Could also be 0 for older ©works. Have more right holders contribute to digitisation costs of CHIs. Works without commercial value will otherwise be forgotten since no one else digitises them. CMOs must be transparant & well governed for ECL to work well. To prevent future orphan works: introduce registration for rightholders? Copyright and CMOs are regulated nationally, but not the internet: cross-border effect preferred for legislation on ECL and orphan works.

24. Still more challenges, such as… Lending right for e-books. Enabling text & data mining for researchers. The ‘right to be forgotten’ in new EU privacy regulation vs. preserving the authenticity of historical sources like newspapers. Content which may be questionable from a criminal law per- spective (Nazi newspapers, extremist websites) vs. libraries must collect everything: pluriform information to reflect the diversity of society, on the basis of legal deposit legislation.