Digitising Europe's cultural heritage and bringing it online

Both Directive 2012/28/EU on certain permitted uses of orphan works and Directive 2013/37/EU, which amended Directive 2003/98/EC on the reuse of public sector information (PSI), incorporate important rules aimed at facilitating the inclusion of both copyright-protected and public domain materials into large-scale projects of digitisation of cultural resources (European Parliament and Council, 2012, 2013b). These projects are aimed at ensuring the widest dissemination of Europe's diverse cultural heritage through digital libraries, such as the ones that member states designated as contributors to Europeana, a network of portals and national databases that is expected to become the single access point to Europe's digital culture in the near future.7

The Orphan Works Directive created a copyright exception to the benefit of certain public sector institutions established in the member states dealing with large-scale digitisation of their collections: publicly accessible libraries, educational establishments and museums, archives, film or audio heritage institutions and public service broadcasters (Article 1). The copyright exception consists of the permission, for these institutions, to copy and disseminate creative works (e.g. books, journals, newspapers, magazines, films or audiovisual works and phonograms) whose right-holders are unknown or, if identified, cannot be located despite a diligent search having been carried out (Favale et al., 2013: 24). The Directive harmonises the process of diligent search (Article 3), which certifies that a work or phonogram is orphan, and embodies the principle of mutual recognition (Article 4), holding that a work that is considered orphan in a member state should be considered likewise in the whole EU (unless the owner of the work puts the orphan status to an end). The beneficiaries of the exception should maintain records of their diligent searches and, through the intermediation of competent national authorities, deliver all such information to a single publicly accessible online database created and managed by the Office for the Harmonisation of the Internal Market (Article 3(6)).

The amended version of the PSI Directive contains now a clear obligation for member states to make all the information produced by their public sector bodies reusable (for both commercial and non-commercial ends). The scope of the Directive was recently extended to three types of cultural establishments: libraries (including university libraries), museums and archives (Article 3(2)). The aim of this extension is that of providing minimum harmonisation of national rules and practices on the reuse of public cultural resources - with the exclusion of documents for which third parties hold intellectual property rights - that are, and will increasingly become, valuable materials for reuse in many products such as mobile applications. The PSI Directive creates an obligation for public libraries, museums and archives to make available their resources for reuse through open, interoperable and machine-readable formats and with their metadata (Article 2). It allows them to impose charges that, in principle, should be limited to the marginal cost, and cannot exceed in any event the cost of production, copying and dissemination, together with a reasonable return on investment (Recital 22).

A significant difference between the two legislative acts is that legislation on orphan works incorporates a restriction with regard to the permitted use of digitised cultural resources. The Orphan Works Directive provides that the beneficiaries of the copyright exception - which operate on a non-profit-making basis - may not use orphan works to achieve goals other than their public interest missions, notably preservation, restoration and supply of access to works contained in their collections (cf. Article 1). The PSI Directive, instead, has a broader scope and aims to define the way in which member states deal with the legal, financial and organisational aspects of digitising their cultural resources in the public domain and bringing them online (Ricolfi and Sappa, 2013: 136). In particular, the PSI Directive seeks to ensure greater access to cultural materials also for commercial ends, on the assumption that reuse of digital cultural resources in the public domain will create significant economic opportunities for suppliers of innovative content products and services in sectors such as education, tourism and leisure (Recital 15).

A common feature of the two Directives is their open and pragmatic approach with regard to the role that public-private partnerships can play to facilitate a broader use of cultural collections and to speed up access to Europe's cultural heritage by the public. Both Directives allow public sector organisations wishing to digitise and disseminate their collections of orphan and public domain works to conclude agreements with commercial partners, following the examples provided by the agreements that a company such as Google has concluded with national libraries and museums in order to develop large-scale digitisation projects such as Google Books and Google Art Project.8 EU lawmakers evidently took these pre-existing cooperation practices into consideration as a valid (and probably more realistic) alternative to in-house digitisation of cultural heritage materials, which would have required the member states to make higher and more uniform investments than those made to subsidise national databases and portals and, eventually, Europeana's network. Even though national libraries, archives and museums and their commercial partners continue to enjoy broad discretion in concluding their agreements, the contracting parties have now to comply with a few principles created by EU law. As far as orphan works are concerned, public-private partnerships must not impose any restrictions on the beneficiaries of the Directive as to their uses of orphan works and must not grant the commercial partner any exclusive rights for the use of orphan works (Recital 22). With respect to public domain resources, the PSI Directive makes it clear that, even though exclusive agreements between public bodies and private partners should be avoided as far as possible in order to comply with competition rules (Recital 29), a certain period of exclusivity offered might prove necessary to give the private partner the possibility of recouping its investment. Exclusivity periods, however, should be '... as short as possible in order to respect the principle that public domain material should stay in the public domain once it is digitised' and not exceed, in any event, ten years (Recital 31). As a measure of cultural policy and of safeguarding of the public interest, the PSI Directive also provides that any such public-private partnership should grant the public partner full rights with regard to the use of digitised resources after the termination of the partnership agreement.

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