Making Broadcasts Accessible Online- A Study on the Copyright- Related Environment and Industry Practice external link

Abstract

This presentation summarises the methodological innovations and the key empirical results of the NWO-funded 'Images for the Future: from digitization to dissemination, when can we watch?' project.

archive, audio-visual works, Auteursrecht, Copyright, cultural heritage, Intellectuele eigendom, making available, public service broadcasting

Bibtex

Presentation{Schroff2017c, title = {Making Broadcasts Accessible Online- A Study on the Copyright- Related Environment and Industry Practice}, author = {Schroff, S.}, url = {https://www.ivir.nl/ava_net-presentation/}, year = {0519}, date = {2017-05-19}, abstract = {This presentation summarises the methodological innovations and the key empirical results of the NWO-funded \'Images for the Future: from digitization to dissemination, when can we watch?\' project.}, keywords = {archive, audio-visual works, Auteursrecht, Copyright, cultural heritage, Intellectuele eigendom, making available, public service broadcasting}, }

The Impossible Quest – Problems with Diligent Search for Orphan Works external link

Schroff, S., Favale, M. & Bertoni, A.
IIC, pp: 1-19, 2017

Abstract

Digital technologies allow unprecedented preservation and sharing of world-wide cultural heritage. Public and private players are increasingly entering the scene with mass digitisation projects that will make this possible. In Europe, legislative action has been taken to allow cultural institutions to include in their online collections copyright works whose owners are either unknown or non-locatable (“orphan works”). However, according to the Orphan Works Directive, cultural institutions must attempt to locate the owner of a work before using it. This is the so-called “diligent search” requirement. This paper provides an empirical analysis of the conditions under which a diligent search can feasibly be carried out. The United Kingdom, the Netherlands, and Italy, all of which have implemented the Orphan Works Directive, have been selected as case studies. For each jurisdiction, this analysis determines what the requirements for a diligent search to locate copyright holders are, what the authoritative sources and databases to be consulted are in practice and, most importantly, to what extent these are freely accessible online. In doing so, our analysis provides insights into the two main issues affecting cultural heritage institutions: (1) how much legal certainty does the implementation provide, and (2) what is the practical burden of a diligent search. The analysis reveals that the jurisdictions have given different meanings to the term “diligent”. While the UK’s extensive guidance makes it unlikely that a search would not be deemed diligent, the search burden is onerous. On the other hand, Italy and especially the Netherlands have a lighter search burden, but in the absence of clear, definite guidance, the likelihood of accidental infringement by failing to meet the diligence standard is greater. In addition, all three jurisdictions have so far failed to take the accessibility of the sources into account, making the searches even more onerous than the numbers suggest at first sight. Therefore, it will be difficult for cultural institutions to clear the rights for their collections while fully complying with the requirements of the legislation. This article concludes that legislative action, official guidelines, or jurisprudence are needed to establish a different legal value of sources for a diligent search, with various degrees of optionality depending on data relevance and accessibility.

Copyright, cultural heritage, frontpage, Mass digitisation, orphan works, Orphan Works Directive

Bibtex

Article{Schroff2017, title = {The Impossible Quest – Problems with Diligent Search for Orphan Works}, author = {Schroff, S. and Favale, M. and Bertoni, A.}, url = {https://link.springer.com/article/10.1007/s40319-017-0568-z?wt_mc=Internal.Event.1.SEM.ArticleAuthorOnlineFirst}, doi = {https://doi.org/10.1007/s40319-017-0568-z}, year = {0414}, date = {2017-04-14}, journal = {IIC}, abstract = {Digital technologies allow unprecedented preservation and sharing of world-wide cultural heritage. Public and private players are increasingly entering the scene with mass digitisation projects that will make this possible. In Europe, legislative action has been taken to allow cultural institutions to include in their online collections copyright works whose owners are either unknown or non-locatable (“orphan works”). However, according to the Orphan Works Directive, cultural institutions must attempt to locate the owner of a work before using it. This is the so-called “diligent search” requirement. This paper provides an empirical analysis of the conditions under which a diligent search can feasibly be carried out. The United Kingdom, the Netherlands, and Italy, all of which have implemented the Orphan Works Directive, have been selected as case studies. For each jurisdiction, this analysis determines what the requirements for a diligent search to locate copyright holders are, what the authoritative sources and databases to be consulted are in practice and, most importantly, to what extent these are freely accessible online. In doing so, our analysis provides insights into the two main issues affecting cultural heritage institutions: (1) how much legal certainty does the implementation provide, and (2) what is the practical burden of a diligent search. The analysis reveals that the jurisdictions have given different meanings to the term “diligent”. While the UK’s extensive guidance makes it unlikely that a search would not be deemed diligent, the search burden is onerous. On the other hand, Italy and especially the Netherlands have a lighter search burden, but in the absence of clear, definite guidance, the likelihood of accidental infringement by failing to meet the diligence standard is greater. In addition, all three jurisdictions have so far failed to take the accessibility of the sources into account, making the searches even more onerous than the numbers suggest at first sight. Therefore, it will be difficult for cultural institutions to clear the rights for their collections while fully complying with the requirements of the legislation. This article concludes that legislative action, official guidelines, or jurisprudence are needed to establish a different legal value of sources for a diligent search, with various degrees of optionality depending on data relevance and accessibility.}, keywords = {Copyright, cultural heritage, frontpage, Mass digitisation, orphan works, Orphan Works Directive}, }

Cultural Heritage Online? Settle it in the Country of Origin of the Work external link

JIPITEC, num: 3, pp: 173-191., 2016

Abstract

This article examines the conditions under which a system of extended collective licensing (ECL) for the use of works contained in the collections of cultural heritage institutions (CHIs) participating in Europeana could function within a cross-border basis. ECL is understood as a form of collective rights management whereby the application of freely negotiated copyright licensing agreements between a user and a collective management organisation (“CMO”), is extended by law to non-members of the organisation. ECL regimes have already been put in place in a few Member States and so far, all have the ability to apply only on a national basis. This article proposes a mechanism that would allow works licensed under an ECL system in one territory of the European Union to be made available in all the territories of the Union. The proposal rests on the statutory recognition of the “country of origin” principle, as necessary and sufficient territory for the negotiation and application of an ECL solution for the rights clearance of works contained in the collection of a cultural heritage institution, including orphan works.

Auteursrecht, Copyright, cross-border access, cultural heritage, extended collective licensing, Intellectuele eigendom

Bibtex

Article{nokey, title = {Cultural Heritage Online? Settle it in the Country of Origin of the Work}, author = {Guibault, L.}, url = {http://www.ivir.nl/publicaties/download/1722.pdf}, year = {2016}, date = {2016-01-19}, journal = {JIPITEC}, number = {3}, abstract = {This article examines the conditions under which a system of extended collective licensing (ECL) for the use of works contained in the collections of cultural heritage institutions (CHIs) participating in Europeana could function within a cross-border basis. ECL is understood as a form of collective rights management whereby the application of freely negotiated copyright licensing agreements between a user and a collective management organisation (“CMO”), is extended by law to non-members of the organisation. ECL regimes have already been put in place in a few Member States and so far, all have the ability to apply only on a national basis. This article proposes a mechanism that would allow works licensed under an ECL system in one territory of the European Union to be made available in all the territories of the Union. The proposal rests on the statutory recognition of the “country of origin” principle, as necessary and sufficient territory for the negotiation and application of an ECL solution for the rights clearance of works contained in the collection of a cultural heritage institution, including orphan works.}, keywords = {Auteursrecht, Copyright, cross-border access, cultural heritage, extended collective licensing, Intellectuele eigendom}, }

The digitisation of cultural heritage: originality, derivative works and (non) original photographs external link

pp: 70 p., 2015

Abstract

The purpose of this paper is to explore the legal consequences of the digitisation of cultural heritage institutions' archives and in particular to establish whether digitisation processes involve the originality required to trigger new copyright or copyright-related protection.<br /> As the European Commission and many MS reported, copyright and in particular "photographers rights" are cause of legal uncertainty during digitisation processes. A major role in this legally uncertain field is played by the standard of originality which is one of the main requirements for copyright protection. Only when a subject matter achieves the requested level of originality, it can be considered a work of authorship. Therefore, a first key issue analysed in this study is whether – and under which conditions – digitisation activities can be considered to be original enough as to constitute works (usually a photographic work) in their own right. A second element of uncertainty is connected with the type of work eventually created by acts of digitisation. If the process of digitisation of a (protected) work can be considered authorial, then the resulting work will be a derivative composed by two works: the original work digitally reproduced and the – probably – photographic work reproducing it. Finally, a third element of uncertainty is found in the protection afforded to "other photographs" by the last sentence of Art. 6 Term Directive and implemented in a handful of European countries.<br /> Accordingly, the paper is structured as follows: Part I is dedicated to the analysis of copyright law key concepts such as the originality standard, the definition of derivative works and the forms of protection available in cases of digital (or film-based) representations of objects (photographs). The second part of the study is devoted to a survey of a selection of EU Member States in an attempt to verify how the general concepts identified in Part I are applied by national legislatures and courts. The selected countries are Germany, France, Spain, Italy, Poland, the Netherlands and the UK. The country analysis fulfils a double function: on the one hand it provides a specific overview of the national implementation of the solutions found at international and EU level. On the other hand, it constitutes the only possible approach in order to analyse the protection afforded by some MS to those "other photographs" (also called non original photographs or mere/simple photographs) provided for by the last sentence of Art. 6 Copyright Term Directive. Part III presents some conclusions and recommendations for cultural heritage institutions and for legislatures.<br />  

Auteursrecht, cultural heritage, derivative works, EU copyright law, Intellectuele eigendom, non original photographs, originality, photographic works, right to adaptation

Bibtex

Report{nokey, title = {The digitisation of cultural heritage: originality, derivative works and (non) original photographs}, author = {Margoni, T.}, url = {http://www.ivir.nl/publicaties/download/1507.pdf}, year = {0303}, date = {2015-03-03}, abstract = {The purpose of this paper is to explore the legal consequences of the digitisation of cultural heritage institutions\' archives and in particular to establish whether digitisation processes involve the originality required to trigger new copyright or copyright-related protection.<br /> As the European Commission and many MS reported, copyright and in particular "photographers rights" are cause of legal uncertainty during digitisation processes. A major role in this legally uncertain field is played by the standard of originality which is one of the main requirements for copyright protection. Only when a subject matter achieves the requested level of originality, it can be considered a work of authorship. Therefore, a first key issue analysed in this study is whether – and under which conditions – digitisation activities can be considered to be original enough as to constitute works (usually a photographic work) in their own right. A second element of uncertainty is connected with the type of work eventually created by acts of digitisation. If the process of digitisation of a (protected) work can be considered authorial, then the resulting work will be a derivative composed by two works: the original work digitally reproduced and the – probably – photographic work reproducing it. Finally, a third element of uncertainty is found in the protection afforded to "other photographs" by the last sentence of Art. 6 Term Directive and implemented in a handful of European countries.<br /> Accordingly, the paper is structured as follows: Part I is dedicated to the analysis of copyright law key concepts such as the originality standard, the definition of derivative works and the forms of protection available in cases of digital (or film-based) representations of objects (photographs). The second part of the study is devoted to a survey of a selection of EU Member States in an attempt to verify how the general concepts identified in Part I are applied by national legislatures and courts. The selected countries are Germany, France, Spain, Italy, Poland, the Netherlands and the UK. The country analysis fulfils a double function: on the one hand it provides a specific overview of the national implementation of the solutions found at international and EU level. On the other hand, it constitutes the only possible approach in order to analyse the protection afforded by some MS to those "other photographs" (also called non original photographs or mere/simple photographs) provided for by the last sentence of Art. 6 Copyright Term Directive. Part III presents some conclusions and recommendations for cultural heritage institutions and for legislatures.<br />  }, keywords = {Auteursrecht, cultural heritage, derivative works, EU copyright law, Intellectuele eigendom, non original photographs, originality, photographic works, right to adaptation}, }