Introduction
Europeana.eu is a portal that brings together digitised content from Europe's museums, archives, libraries and audiovisual collections. It currently, June 2010, provides free access to over nine million items from the cultural and scientific collections of Europe and that figure grows weekly. Over 1,500 institutions are represented, including the Rijksmuseum in Amsterdam, the Louvre in Paris, the Natural History Museum in London and every national library in Europe.
The service, currently in prototype, is a project funded by the European Commission. The vision for Europeana was set out in a statement by the Council of Europe when the service launched in November 2008:
“Digitisation and online accessibility of cultural material are essential to highlight cultural and scientific heritage, to inspire the creation of new content and to encourage new online services to emerge. They help to democratise access to culture and knowledge and to develop the information society and the knowledge-based economy”.Footnote 1
The intention that Europeana would facilitate the emergence of new online services and provide a catalyst for creative enterprise is explicit in these founding principles and informs Europeana's strategic objectives. Europeana holds certain core assets which can be used in fulfillment of these objectives.
Open Source code
The first is the programming code base which has been developed to provide the service. This code is Open Source and is made freely available to content providers and technology partners. Such distribution ensures that the code can be re-used and developed by related projects, thus maximising the value of publicly-funded research and development. Recent initiatives such as ABM Utvikling, the Norwegian agency that brings together museum, library and archival content at a national level and the German Digital Library are able to re-purpose the code and avoid significant development costs. There is no need for licensing of the source code and in the coming months it will be opened up to the wider development community, to underpin new applications and innovations.
Metadata
The second core asset is the metadata that Europeana brings together from its content providers. This is a rich resource and never before has such a vast body of authenticated information about digital heritage content been integrated in a central index. The cataloguing standards used to record material in museums, libraries, archives and audiovisual collections have evolved over decades and differ substantially; Europeana's achievement to date is to have mapped these to a single metadata schema, facilitating interoperability between the professional practices of the different resources.
The next step is to extend the range of services and applications using this metadata resource. The first of these, which will be available by Autumn 2010, is by means of the Open Search API (Application Programming Interface) which will enable Europeana's data providers to integrate Europeana's content with their own. For example, an organisation can create an online exhibition featuring its own content, supplemented by relevant material held in Europeana, or a research institute can complement its online resources with assets drawn from Europeana.
The metadata index will also be used as a test bed for the development of linked data applications. Semantic web innovations are currently seen as having great potential to organise related information and stimulate interdisciplinary research and knowledge development.
Furthermore, by linking thesauri, ontologies and authority files, it will be possible to enrich the metadata supplied by the data providers and return it to them for incorporation in their own services. Again, the data will be accessible by means of APIs.
This redistribution of metadata is governed by the Data Provider Agreements which Europeana is in the process of signing with all its contributors. The Agreement is a non-exclusive, worldwide, royalty free licence on copyright, related rights and the sui generis database right and at present covers only non-commercial use of the data. Third parties' use of the metadata is covered by a non-commercial licence which is a variant of the Creative Commons licence; a variant only because CC is not enforceable if the data is not copyrighted and the metadata index is not. Other elements of the licence are attribution, requiring that users of the data always provide provenance details in any application they devise, and copyleft, requiring that the resulting enhancement or application be returned to the Europeana developer community.
The third core asset, to which Europeana provides access, is the actual content, around which IPR issues cluster. Apart from a small thumbnail or preview image, Europeana does not hold the full digitised object. Instead, it links the user back to the original holder of the digitised object, so, for example, searchers for Cervantes' Don Quixote are linked back to the full text of the first edition on the Spanish national library's site. This model saves on storage, puts the onus for preservation and provision of players and other tools onto the provider. It also drives traffic to our providers' sites and enables their brands to be seen by the user.
It also gives the content holder responsibility for control of the terms of use for downloading and re-use, but this creates great confusion for users: content providers offer a multiplicity of different options, from free downloading of material, for example, hundreds of Robert Schumann's scores are available at the Bayerische Staatsbibliothek, to subscription-based sites at which only thumbnails are accessible without charge.
Concerns about barriers to access
This is where a critical issue surfaces: since the majority of material available through Europeana is in the public domain, users and commentators have voiced concern about barriers to access, which reflect the position of the European Commission, which back in August 2008 stated:
“It is important to stress the importance of keeping public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet.”Footnote 2
In furtherance of this position, the Communia project, a Commission-backed consortium of users of digital information, developed a Public Domain Manifesto.Footnote 3 Communia's partners included research institutes, universities, consumer groups, digital laboratories and rights organizations. Their Manifesto was published on 1 January 2010 – the symbolic Public Domain Day on which copyright runs out.
Europeana recognised the value of the Manifesto and offered its broad support in the shape of the Europeana Public Domain CharterFootnote 4, representing the content holders' perspective on the public domain. Europeana is run by the Europeana Foundation, whose members are the international heritage associationsFootnote 5 that represent the libraries, archives museums and audiovisual collections of Europe. They are the guardians of society's shared knowledge and play an essential part in maintaining the public domain on behalf of citizens.
The Public Domain
The public domain comprises all the knowledge and information, including books, pictures and audiovisual works, which does not have copyright protection and can be used without restriction, subject in some European countries to the author's perpetual moral rights. It covers two categories of material:
1. Works on which copyright protection has expired. Copyright in a work in most of Europe lasts for 70 years after the death of its longest living creator. If copyright is held by a corporation, then it lasts for 70 years after publication. Once this temporary protection has come to its end, all legal restrictions cease to exist. This year, for example, copyright expired on the works of, among others, Sigmund Freud, WB Yeats, Ford Madox Ford and Arthur Rackham, meaning that their work can be quoted, adapted and reproduced in learning resources, for example, with no permissions necessary and no fees payable.
2. The essential commons of information that is not covered by copyright. Works are not protected by copyright if they are not original. Ideas and facts are not covered by copyright, but the expression of them is. Laws and judicial and administrative decisions are excluded from this protection. This essential commons is regarded as too important for the functioning of our societies to be burdened with legal restrictions of any nature even for a limited period.
“The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture.”Footnote 6 The quote from James Boyle's book The Public Domain: Enclosing the Commons of the Mind captures the fundamental value of the public domain. Having a healthy and thriving public domain is essential to the social and economic well-being of society.
The internet gives access to the digitised portion of knowledge and creativity on a scale previously impossible. It is the driver for massive digitisation efforts that will fundamentally change the role of cultural and scientific heritage institutions. The digitisation of analogue collections creates new opportunities for sharing and creative re-use, empowering people to explore and respond to their shared heritage in new ways that legislation has yet to catch up with. It has also brought copyright to the centre of attention for holders of cultural and scientific heritage. Memory organisations have for generations had the public duty of holding the heritage in trust for the citizenry and of making it accessible to all. Both of these functions are usually conducted at the citizens' i.e. the tax payers' expense.
In the technological environment of the networked information society the public domain becomes both more vital and more vulnerable. More vital because the technology opens up opportunities to distribute information, to generate new knowledge and to spark innovation; more vulnerable because of moves to protect business models in the face of change, construct barriers to use and extend rights over digitised content.
As knowledge and information are digitised, legal contracts are often being used that inhibit free access to the digitised public domain. Memory organisations are undergoing a transformation from guardians of analogue collections to providers of digital services. This places enormous challenges on them. Creating and maintaining digital collections is expensive and in many cases the cultural heritage sector lacks resources for this new responsibility. Government sponsors may encourage or require organisations to generate income by way of licensing content to a wide variety of commercial users.
Public-Private Partnerships have become one option for funding large scale digitisation efforts. Commercial content aggregators pay for the digitisation in exchange for privileged access to the digitised collections. These activities are seen as a reason for attempting to exercise as much control as possible over digital reproductions of public domain works. Organisations are claiming exclusive rights in digitised versions of public domain works and are entering into exclusive relationships with commercial partners that hinder free access.
When this exclusivity locks down digital content and inhibits access and re-use by teachers, innovators and citizens, memory organisations may be compromising their core mission and undermining their relationship with their users. Works that are in the public domain in analogue form must remain freely available in digital form and digitisation of such works must lead to increased access by the public instead of new restrictions. To remain relevant in the digital age, cultural and scientific heritage organisations must strive to increase access to our shared knowledge and culture by being the primary points of access to the works that they have in their collections. Value-added services can be developed around content without the need to claim exclusive rights over works that have been in the public domain in analogue form.
The Europeana Public Domain Charter acknowledges the dilemma in which heritage collections find themselves. Their drive to digitise both to make public domain content accessible and to preserve it is tempered by a recognition of the costs involved and the need to arrive at the most appropriate agreements with those who are willing and able to fund digitisation programmes, including the private sector.
The Charter sets out a number of principles that are essential to preserve a meaningful understanding of the public domain:
1. Copyright protection is temporary. Copyright gives creators a time-limited monopoly regarding the control of their works. Once this period has expired, these works automatically fall into the public domain. The mass of knowledge over recorded time is in the public domain; copyright offers an appropriate and time-limited exception to this status.
2. What is in the public domain needs to remain in the public domain. Exclusive control over public domain works cannot be re-established by claiming exclusive rights in technical reproductions of the works, or by using technical and/or contractual measures to limit access to technical reproductions of such works. Works that are in the public domain in analogue form continue to be in the public domain once they have been digitised.
3. The lawful user of a digital copy of a public domain work should be free to (re-)use, copy and modify the work. Public domain status of a work guarantees the right to re-use, modify and make reproductions and this must not be limited through technical and or contractual measures. When a work has entered the public domain there is no longer a legal basis to impose restrictions on the use of that work.
These principles are followed by two guidelines for preserving the function of the public domain:
1. Any change to the scope of copyright protection needs to take into account the effects on the public domain. Changes to the scope of copyright must not be retroactive. In the 20th century copyright has been extended to accommodate the interests of rights holders at the expense of the public domain. As a result a large portion of our shared culture and knowledge is locked away behind copyright and technical restrictions and we must ensure that this situation will not be worsened in the future.
2. No other intellectual property right must be used to reconstitute exclusivity over public domain material. The public domain is an integral element of the internal balance of the copyright system. This internal balance must not be manipulated by attempts to reconstitute or obtain exclusive control via regulations that are external to copyright. No technological protection measures backed-up by statute should limit the practical value of works in the public domain. Industrial property rights, such as trademarks, should not be used to restrict the re-use and copying of public domain works.
The Public Domain Charter has been published by Europeana in order to offer guidance to all European memory organisations, but also to their funding agencies, ministries and strategic bodies. The Charter is intended to influence the debate; it is a policy statement, not a contract. It does not bind Europeana's content providers to any position nor is it intended to prevent organisations from commercial exploitation of public domain works in their collections. However, it is necessary to label the rights associated with a digitised item very clearly so that they are understood by Europeana's users, who will be able to exclude content from their results that requires payment or does not comply with the Public Domain Charter. Rights labelling will become a requirement when submitting content to Europeana by the end of this year.
The Charter provides a set of minimum standards that ensures that the Public Domain functions in the digital environment.
Copyright harmonisation and orphan works
Europeana acted as facilitator in bringing the heritage domains into accord on the public domain issues. In a related arena, Europeana's existence is proving the spur to action. Copyright law is not consistent across Europe and for content involving multiple rights-holders and territories, such as films or television broadcasts, the situations can be complex. The resulting costs and limited chance of success of rights clearance for digitisation not only inhibits access, but can also prevent material being digitised for preservation purposes. Consequently, the European Commission's Digital Agenda for Europe, published in May 2010, takes Europeana as its focus in its reference to rights harmonisation:
“Fragmentation and complexity in the current licensing system also hinders the digitisation of a large part of Europe's recent cultural heritage. Rights clearance must be improved, and Europeana – the EU public digital library – should be strengthened.”Footnote 7
This statement implicitly touches on an issue of great significance to all the memory institutions: orphan works – those materials which are likely to be still in copyright, but whose rights owners are difficult, if not impossible, to trace. The European Parliamentary Resolution of May 2010 in support of Europeana:
“Stresses that solutions should be found for Europeana also to offer in-copyright works, particularly out-of-print and orphan works, taking a sector-by-sector approach, while complying with laws governing intellectual property and preserving the legitimate interests of rights-holders; believes that solutions such as extended collective licensing or other collective management practices could be favoured;
Welcomes the Commission's launch of the debate on EU copyright law, which seeks to strike a balance between rights-holders and consumer rights in a globally connected world, in the context of the rapidly changing online reality of new technologies and social and cultural practices;
Urges the Commission and the Member States, in the context of the further development of copyright protection in Europe, to adopt legal provisions which are as uniform and comprehensive as possible, designed to ensure that digitisation processes by themselves do not bring about any 'sui generis' copyright; takes the view that these discussions should also address the issue of whether legal derogations should be introduced for the digitisation of orphan works by public institutions;
Stresses the importance of orphan works – works which are covered under copyright, but whose rights-holders cannot be determined despite a diligent search – and the need to ascertain precisely, on a sector-by-sector basis, the number and type of such works in order to find appropriate solutions.”Footnote 8
Work to scope the scale of orphan works has begun and the first Assessment of the Orphan Works Issue and Costs for Rights Clearance was published in May 2010. A detailed survey of 22 research libraries and audiovisual centres found that:
A conservative estimate of the number of orphan books as a percentage of in-copyright books across Europe puts the number at three million orphan books (13% of the total number of in-copyright books). The older the books the higher the percentage of orphan works.
When handling requests for using older film material, film archives from across Europe categorised 129,000 film works as orphan and could not therefore be used, after a search for right holders. Works that can be presumed to be orphan without actually searching for the right holders augments the figure to approximately 225,000 film works.Footnote 9
A digitisation project in the UK found that 95% of newspapers from before 1912 are orphan. Also, a survey amongst museums in the UK found that the rights holders of 17 million photographs (that is 90% of the total collections of photographs of the museums) could not be traced.Footnote 10
The oldest work still in copyright in the British Library, reported by the survey, was published in 1859, underlining the extent of the timeframe and the hazards of making assumptions about nineteenth century work being out of copyright. The Assessment took evidence on the cost of determining whether rights were still extant in an object, dating an undocumented photograph, for example, is not simple; discovering identities of original creators; researching whether original rights holders were still living and, if not, identifying and contacting the possibly multiple legal heirs.
Such was the resource expended on the task of clearance that the Assessment concludes:
“The cost of clearing rights may amount to several times the cost of digitising the material… In the absence of efficient sources of rights information to works (such as book rights registries), it can take from several months to several years to clear permissions for only a limited numbers of works. Sometimes it is impossible to clear the rights at all…
There is a need for a more efficient way to clear rights, and a solution for the orphan works issue. The experiences of institutions indicate that a title by title rights clearance can be prohibitively costly and complex, especially in case of mass scale digitisation projects.”Footnote 11
This conclusion resonates with the European Parliament's resolution, which:
“Calls on the Commission, in regard to its Communication on Copyright in the Knowledge Economy of 19 October 2009, to submit a legislative proposal on the digitisation, preservation and dissemination of orphan works which would put an end to the current legal uncertainty, in accordance with the requirement for diligent search for, and remuneration of, rights-holders;
Endorses the Commission's intention to establish a simple and cost-efficient rights clearance system for the digitisation of published works and their availability on the Internet, working in close cooperation with all the stakeholders involved;
Therefore, welcomes and supports initiatives, such as the ARROW project, partnered by both rights-holders and library representatives, in particular since these seek to identify rights-holders and their rights, and to clarify the rights' status of works including whether these are orphan or out of print;
Calls on the Commission to develop a European database of orphan works understood to be protected works whose rights-holders are unknown or cannot be located, despite documented serious searches being made which would make it possible to exchange information on the ownership of rights and thereby reduce costs incurred in making diligent searches for rights-holders;
Favours a balanced Europe-wide solution for digitising and disseminating orphan works, starting by clearly defining them, establishing common standards (including that of due diligence applied in searching for their owners), and resolving the issue of potential copyright infringement when orphan works are used”Footnote 12
The European Parliament's endorsement of Arrow [Accessible Registries of Rights Information and Orphan Works] is significant. The Arrow project is closely connected to Europeana, and its objectives include:
• Creation of a distributed network of sources for information on copyright status
• Gathering data about European literary works for the identification of rights-holders
• Provision of guidelines for the identification of the status of a work
• Creation of an European Registry of Orphan Works (ROW)
• Establishment of Rights Clearance CentresFootnote 13
The fact that the issue of orphan works is being tackled at a European level, endorsed both by the Parliament and the Commission, could be seen as testifying to the value of Europeana's existence: it is unlikely the issue would have risen up the political agenda in the way is has had there not been a European portal around which to focus problems of digitisation that are urgently in need of legislative solutions.
Conclusions and next steps
Europeana has an important role at the centre of a number of rights-related issues in Europe and is in a position to drive innovation in the application developer community by making its programming code available as Open Source. It can encourage use of its API to distribute access to the cultural and scientific heritage of Europe. It promotes the concept of Open Data, and will facilitate experiments with linked data and the development of semantic web applications.
Furthermore, Europeana can develop consensus among Europe's memory organisations and represent their opinion in policy statements such as the Europeana Public Domain Charter. Its existence as a pan-European resource, funded by the Commission and strongly endorsed by the European Parliament, serves to focus issues on copyright harmonisation and orphan works which need a concerted EU solution.
Europeana has marked user responsibilities for further action. If users are provided with free access to content, to download and re-purpose for their own ends, including commercial gain, then what responsibilities are implicit in that covenant? Any misuse of the materials such as illegal file sharing, misquotation or decontextualisation constitutes a breach of trust, but users need to be given clear indications about what they can do and the tools and mechanisms that enable them to act appropriately. Europeana is bringing together an expert group that includes heritage rights specialists, publishers' representatives and Creative Commons proponents to debate these issues and draft a User Charter, with a framework of icons and information that would travel with content to promote awarenes and responsible use.
Finally, Europeana has commissioned research into opportunities for collective licensing across Europe. The work will identify whether there are barriers to collective licensing in and between countries, and the aim is to facilitate digitisation of and access to orphan works.
This article is licensed under a CC-Attribution-ShareAlike License v. 3.0 The Netherlands available at http://creativecommons.org/licenses/by-sa/3.0/nl/
