Publishing a joint position with libraries on copyright reform

Together with our partner library associations we have authored a joint paper presenting recommendations that update and strengthen justified exceptions and limitations to European Copyright laws. The joint recommendations were developed by Europeana, EBLIDA, Public Libraries 2020, IFLA and LIBER in response to the Commission’s December 2015 communication “Towards a modern, more European copyright framework’. This recent publication clarifies our common position to adapt exceptions to digital and cross-border environments, and follows on from the advocacy work that Europeana has been undertaking on behalf of the broader cultural heritage community.

What have we been doing recently on copyright reform?

In October 2015 we sent an open letter, supported by 67 cultural heritage institutions, to the European Commission in October 2015, and which reinforced the value and importance of being able to easily provide access to those collections which are currently invisible to the public online. This was followed by our publication of reports on the 20th century black hole and a number of rights clearance case studies which provide empirical evidence of the challenges, costs and consequences of the current copyright rules in the rights clearance process of publishing works online.

In December 2015 the European Commission published a communication that, among other things, contains four different actions aimed at modernizing those aspects of the copyright framework that govern how Libraries, Archives and Museums can operate in the digital environment. These include a new text and data mining (TDM) exception to support and allow for greater sharing of knowledge and information within the research community and updates to the exceptions for preservation, research and private copying. In addition, the Commission also said that it aims to make 'it easier to digitise out-of-commerce works and make them available'.

In June’s joint paper, together with the four library organisations, we present three recommendations to address the imbalance between current copyright law, ongoing technological developments and the ability to fully benefit those working in a digital space.

Firstly, we recommend the extension of existing exceptions to reflect technological realities by:

• Introducing a robust harmonised and mandatory exception that allows Text and Data Mining (TDM) both for non-commercial and commercial purposes. Any type of stakeholder should be allowed to carry out TDM where content has been legally obtained.

• Clarifying the preservation exception (5(2)c) to provide a clear space for preservation by cultural heritage and research institutions, reflecting the use of digital technologies for preservation and the needs of born-digital and digitised works.

• Updating the scope of the existing exception for private study (5(3)n) and research to take into account current practices of accessing digitised collections, including on site consultation and remote access via (closed) networks and non-commercial cross-border document supply [...] and to make available online for non-commercial purposes works in the collections of cultural heritage institutions that are not available via commercial channels, or otherwise actively managed by their rights holders.

Secondly, we recommend that these exceptions are harmonised and mandatory to facilitate the success of the single market. And finally, we recommend outlawing contractual and technical mechanisms that are routinely used by rights holders to limit the rights that cultural heritage institutions and users have as the result of exceptions to copyright.

What’s next on the copyright reform agenda?

The Commission intends to propose concrete legislative proposals on 21st September 2016 that will deal with the issues identified in their communication of December 2015. Whilst there has been some recognition from the Commission of how the cultural heritage sector could benefit from introducing exceptions that work in practice, (most recently a good response to the rights clearance case study report which presented the realities of rights clearance from 6 organisations across Europe), it is not yet obvious which path the Commission will take. One path requires minimal changes to the existing system and suggests 'solutions' based on (extended collective) licensing. The other - ours - we have outlined here: updating existing exceptions to make copyright laws fit for the digital age.

Europeana will continue to work collaboratively both with the Network and other organisations from the cultural heritage sector to influence decisions around real reform in Europeana Copyright law. We believe that this is essential to help improve the way we can all access, share and use cultural content online and transform the world through culture.