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Cultural Heritage rights in the age of digital copyright

Stefano Costa - December 21, 2010 in COMMUNIA, Events, Public Domain, WG Archaeology, WG Cultural Heritage, Workshop

The following guest post is from Stefano Costa at the University of Siena. Stefano is Founder of the IOSA initiative and Coordinator of the Open Knowledge Foundation’s Working Group on Open Data in Archaeology.

On December, 10th the COMMUNIA WG3 gathered in Istanbul for the final workshop, with the aim of producing a set of recommendations about cultural heritage and the public domain.

I am not a lawyer, so I took a chance to learn about the marked differences between access rights and property rights. More than that, it became soon clear that Cultural Heritage rights (CHR) only exist in certain EU member states (e.g. Italy, Greece) while in others there are no such rights.

This poses a first set of basic problems: a Finn tourist taking a photograph of the Parthenon in Athens might actually be violating Greek CHR, especially if she’s going to publish the resulting image on the Web. Same would happen in Italy, not just inside museums but also for public buildings and panoramas. On the other hand, Portugal only listed 5 buildings that cannot be freely photographed. Apparently Finland poses no restrictions on photographing of CH, be it historical buildings or artistic creations.

CH laws were mostly conceived in a pre-digital age and even those that got recently revamped (like the Italian case) apparently ignore the ease of creating digital reproductions of CH items at no cost and with no risk of damaging the items themselves. Cultural Heritage institutions (CHI) claim quasy-property rights over the artifacts they are custodians of, thus posing serious restrictions not just to personal usage, but also to the development of public repositories like Wikimedia Commons. As the recent GLAMWIKI event at the British Museum showed, some institutions are engaging with open content creators in a positive way, claiming their role of primacy by sharing the knowledge they have, rather than closing their doors and keeping the best for themselves.

In the case of licensing, the widespread distinction between commercial and non-commercial use is really harmful and poses more problems than it solves. What is particularly frustrating is that this distinction doesn’t take into account the existance of the Commons and of the Public Domain, in other words content that can be both commercial and non-commercial at the same time. A photographer might want to publish her photographs of Archaic korai under a CC-BY-SA license, thus enabling any kind of reuse, from the incorporation into Wikimedia Commons to the publishing on a tourist guide or a textbook.

Here a further distinction is worth: most CH items are in the Public Domain themselves (because they were made several centuries ago), but the same doesn’t currently apply to their digital reproductions. If the r. is basically a mechanical operation, one might argue that no copyright should apply to the reproduction, too. Clearly, the distinction between a work that is creative and one that is not is going to be very dangerous in the case of photography and ultimately impossible (think about those monuments that are photographed thousands of times per day).

The fact that going into these subtle juridic details takes so much time and effort is, alone, a good example of the difficulties that this double layer of rights is posing.

The recommendations we collected are aimed in the direction of clearing the nature and extent of CHR, and of maximising the benefits for the Commons and the Public Domain. CHR should not be property rights but rather access rights, thus posing no limitations on subsequent copies of the first reproduction once this takes place. If there is going to be a fee for commercial use of reproductions, the process has to be easy and quick. The policy for museum visitors should be “open by default” and larger institutions (or networks) might ask digital publishers like bloggers and wikipedians to link back to the original item – even though this assumes that there’s a digital collection available on the Web. Licensing of such collections is beyond the scope of COMMUNIA, and CH is also explicitly excluded from the EU PSI directive. There was some work done by the LAPSI project at the last meeting in Barcelona about this, and the survey launched by the European Commission might help in changing this situation. Clearly, countries like Italy and Greece might see this as “selling out” one of their major assets for economic development. We believe the opposite, and tried to develop our discussion around the concept of cultural heritage as infrastructure, just like the road network or the public green, that needs to be maintained for the benefit of all citizens and the overall development of society.

CHI want to retain control over items and buildings that they often regard as “theirs”, but this need has to live together with the fact that millions of people want to share digital content about cultural heritage on the web. Ultimately, this fact should be regarded as a very positive thing, if the mission of institutions is to maximise the awareness of Cultural Heritage among the public and the impact it has on the social and economic life of EU citizens.

Related posts:

  1. Gathering, Preserving and Reusing our Cultural Heritage – the OKFN Cultural Heritage Working Group.
  2. Copyright and the Digital Age
  3. Study on use of open licenses by UK cultural heritage organisations

Public Domain Calculators at Europeana

Jonathan Gray - May 12, 2010 in COMMUNIA, External, Guest post, OKF, OKF Projects, Public Domain, Public Domain Works, Technical, WG Public Domain, Working Groups

The following guest post is from Christina Angelopoulos at the Institute for Information Law (IViR) and Maarten Zeinstra at Nederland Kennisland who are working on building a series of Public Domain Calculators as part of the Europeana project. Both are also members of the Open Knowledge Foundation’s Working Group on the Public Domain.

Europeana Logo

Over the past few months the Institute for Information Law (IViR) of the University of Amsterdam and Nederland Kennisland have been collaborating on the preparation of a set of six Public Domain Helper Tools as part of the EuropeanConnect project. The Tools are intended to assist Europeana data providers in the determination of whether or not a certain work or other subject matter vested with copyright or neighbouring rights (related rights) has fallen into the public domain and can therefore be freely copied or re-used, through functioning as a simple interface between the user and the often complex set of national rules governing the term of protection. The issue is of significance for Europeana, as contributing organisations will be expected to clearly mark the material in their collection as being in the public domain, through the attachment of a Europeana Public Domain Licence, whenever possible.

The Tools are based on six National Flowcharts (Decisions Trees) built by IViR on the basis of research into the duration of the protection of subject matter in which copyright or neighbouring rights subsist in six European jurisdictions (the Czech Republic, France, Italy, the Netherlands, Spain and the United Kingdom). By means of a series of simple yes-or-no questions, the Flowcharts are intended to guide the user through all important issues relevant to the determination of the public domain status of a given item.

Researching Copyright Law

The first step in the construction of the flowcharts was the careful study of EU Term Directive. The Directive attempts the harmonisation of rules on the term of protection of copyright and neighbouring rights across the board of EU Member States. The rules of the Directive were integrated by IViR into a set of Generic Skeleton European Flowcharts. Given the essential role that the Term Directive has played in shaping national laws on the duration of protection, these generic charts functioned as the prototype for the six National Flowcharts. An initial version of the Generic European Flowchart, as well as the National Flowcharts for the Netherlands and the United Kingdom, was put together with the help of the Open Knowledge Foundation at a Communia workshop in November 2009.

Further information necessary for the refinement of these charts as well as the assembly of the remaining four National Flowcharts was collected either through the collaboration of National Legal Experts contacted by IViR (Czech Republic, Italy and Spain) or independently through IViR’s in-house expertise (EU, France, the Netherlands and the UK).

Both the Generic European Flowcharts and the National Flowcharts have been split into two categories: one dedicated to the rules governing the duration of copyright and the sui generis database right and one dedicated to the rules governing neighbouring rights. Although this division was made for the sake of usability and in accordance with the different subject matter of these categories of rights (works of copyright and unoriginal databases on the one hand and performances, phonograms, films and broadcasts on the other), the two types of flowcharts are intended to be viewed as connected and should be applied jointly if a comprehensive conclusion as to the public domain status of an examined item is to be reached (in fact the final conclusion in each directs the user to the application of the other). This is due to the fact that, although the protected subject matter of these two categories of rights differs, they may not be entirely unrelated. For example, it does not suffice to examine whether the rights of the author of a musical work have expired; it may also be necessary to investigate whether the rights of the performer of the work or of the producer of the phonogram onto which the work has been fixated have also expired, in order to reach an accurate conclusion as to whether or not a certain item in a collection may be copied or re-used.

Legal Complexities

A variety of legal complexities surfaced during the research into the topic. Condensing the complex rules that govern the term of protection in the examined jurisdictions into a user-friendly tool presented a substantial challenge. One of the most perplexing issues was that of the first question to be asked. Rather than engage in complicated descriptions of the scope of the subject matter protected by copyright and related rights, IViR decided to avoid this can of worms. Instead, the flowchart’s starting point is provided by the question “is the work an unoriginal database?” However, this solution seems unsatisfactory and further thought is being put into an alternative approach.

Other difficult legal issues stumbled upon include the following:

  • Term of protection vis-à-vis third countries
  • Term of protection of works of joint authorship and collective works
  • The term of protection (or lack thereof) for moral rights
  • Application of new terms and transitional provisions
  • Copyright protection of critical and scientific publications and of non-original photographs
  • Copyright protection of official acts of public authorities and other works of public origins (e.g. legislative texts, political speeches, works of traditional folklore)
  • Copyright protection of translations, adaptations and typographical arrangements
  • Copyright protection of computer-generated works

On the national level, areas of uncertainty related to such matters as the British provisions on the protection of films (no distinction is made under British law between the audiovisual or cinematographic work and its first fixation, contrary to the system applied on the EU level) or exceptional extensions to the term of protection, such as that granted in France due to World Wars I and II or in the UK to J.M. Barrie’s “Peter Pan”.

Web based Public Domain Calculators

Once the Flowcharts had been prepared they were translated into code by IViR’s colleagues at Kennisland, thus resulting in the creation of the current set of six web-based Public Domain Helper Tools.

Technically the flowcharts needed to be translated into formats that computers can read. In this project Kennisland choose for an Extensible Markup Language (XML) approach for describing the questions in the flowcharts and the relations between them. The resulting XML documents are both human and computer readable. Using XML documents also allowed Kennisland to keep the decision structure separate from the actual programming language, which makes maintenance of both content and code easier.

Kennisland then needed to build an XML reader that could translate the structures and questions of these XML files into a questionnaire or apply some set of data to the available questions, so as to make the automatic calculation of large datasets possible. For the EuropeanaConnect project Kennisland developed two of these XML readers. The first translates these XML schemes into a graphical user interface tool (this can be found at EuropeanaLabs) and the second can potentially automatically determine the status of a work which resides at the Public Domain Works project mercurial depository on KnowledgeForge. Both of these applications are open source and we encourage people to download, modify and work on these tools.

It should be noted that, as part of Kennisland’s collaboration with the Open Knowledge Foundation, Kennisland is currently assisting in the development of an XML base scheme for automatic determination of the rights status of a work using bibliographic information. Unfortunately however this information alone is usually not enough for the automatic identification on a European level. This is due to the many international treaties that have accumulated over the years; rules for example change depending on whether an author is born in a country party to the Berne convention, an EU Member State or a third country.

It should of course also be noted that there is a limit to the extent to which an electronic tool can replace a case-by-case assessment of the public domain status of a copyrighted work or other protected subject matter in complicated legal situations. The Tools are accordingly accompanied by a disclaimer indicating that they cannot offer an absolute guarantee of legal certainty.

Further fine-tuning is necessary before the Helper Tools are ready to be deployed. For the moment test versions of the electronic Tools can be found here. We invite readers to try these beta tools and give us feedback on the pd-discuss list!

Note from the authors: If the whole construction process for the Flowcharts has highlighted one thing that would be the bewildering complexity of the current rules governing the term of protection for copyright and related rights. Despite the Term Directive’s attempts at creating a level playing field, national legislative idiosyncrasies are still going strong in the post-harmonisation era – a single European term of protection remains very much a chimera. The relevant rules are hardly simple on the level of the individual Member States either. In particular in countries such as the UK and France, the term of protection currently operates under confusing entanglements of rules and exceptions that make the confident calculation of the term of protection almost impossible for a copyright layperson and difficult even for experts.

PD Calculators

Generic copyright flowchart by Christina Angelopoulos. PDF version available from Public Domain Calculators wiki page

Related posts:

  1. Public Domain Calculators Meeting, 10-11th November 2009
  2. The Public Domain and the WIPO Development Agenda
  3. New microshort film on the Public Domain Calculators!

Public Domain Day 2010: A roundup

Jonathan Gray - January 5, 2010 in COMMUNIA, Public Domain, Public Domain Works, Texts, WG Public Domain

January 1st 2010 was Public Domain Day, when around the world various works fell out of copyright and into the public domain. Back in November we put together a rough list of which works fall into the public domain:

You can find the list of 563 authors on our Public Domain Works project, which is a simple registry of artistic works that are in the public domain:

The list can be sorted by author surname, birth date, death date and number of works by clicking on the relevant headings. Notable authors include the poets William Butler Yeats and Osip Mandelstam, as well as the father of psychoanalysis Sigmund Freud.

There were celebrations in Poland and Switzerland. Communia, the EU policy network for the digital public domain launched a new website at:

The Telegraph celebrated Public Domain Day with an editorial from Shane Richmond, Head of Technology:

Happy Public Domain Day everyone! Today is the day that copyright expires on a whole range of works. As we reported this morning, from today works by Sigmund Freud, WB Yeats, Ford Madx Ford and illustrator Arthur Rackham are today part of the public domain. They can be made cheaply available as educational editions, translated into braille or made into audiobooks, all without anyone needing to give permission or any fees changing hands. They are also available to be reinterpreted and re-used by new artists.

The Telegraph also reported an announcement from Wikimedia UK inviting people to upload sources to Wikimedia Commons:

Wikimedia UK anticipates January 1, “Public Domain Day”, 2010 being a great year for additions to the digital Wikimedia Commons. The poetry of W. B. Yeats, the works of Sigmund Freud, and Arthur Rackham’s classic children’s book illustrations all enter the public domain. When the complexities of copyright no longer encumber reuse of old works, a work that has been a “sleeper” can become a new classic. Perhaps the definitive example of this is “It’s a Wonderful Life“, the 1946 Frank Capra film that became a Christmas classic in the 1980s.

Wikimedia UK promotes the uploading of copyright-free text to Wikisource, a sister site to Wikipedia, so that it can be widely enjoyed. Audio recordings of public domain works may be added to the Wikimedia Commons site, and Wikimedia UK invites you to join us and help digitise and preserve our common cultural heritage. You can make it available for everyone to share, build on, and simply enjoy.

On a less happy note, copyright scholar James Boyle at the Center for the Study of the Public Domain writes:

What is entering the public domain in the United States? Sadly, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year. Or the year after. Or the year after that. In fact, in the United States, no publication will enter the public domain until 2019. And wherever in the world you live, you now have to wait a very long time for anything to reach the public domain. When the first copyright law was written in the United States, copyright lasted 14 years, renewable for another 14 years if the author wished. Jefferson or Madison could look at the books written by their contemporaries and confidently expect them to be in the public domain within a decade or two. Now? In the United States, as in most of the world, copyright lasts for the author’s lifetime, plus another 70 years. And we’ve changed the law so that every creative work is automatically copyrighted, even if the author does nothing. What do these laws mean to you? As you can read in our analysis here, they impose great (and in many cases entirely unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, they impose costs on our entire collective culture. [...] We have little reason to celebrate on Public Domain Day because our public domain has been shrinking, not growing.

More detailed comment and analysis from the Centre is available at:

See also posts from:

Related posts:

  1. Which works fall into the public domain in 2010?
  2. Public Domain Calculators Meeting, 10-11th November 2009
  3. Launch of the Public Domain Review to celebrate Public Domain Day 2011