The Public Domain ensures the free dissemination of knowledge and provides everyone with the potential to access and create new works based on previous works. Thus, all Public Domain works should be free for everyone to use and reuse. Yet, as many cultural heritage institutions are entering into contractual agreements with third parties for the digitization of Public Domain works, there are serious concerns regarding the conditions of access, use and reuse of the resulting digitized copies.

Ideally, digital copies of Public Domain materials would be made immediately and freely available to the public. However, in practice, many of these public-private partnerships impose contractual restrictions that limit access and re-use of Public Domain materials. These restrictions have the same effect as introducing a new proprietary right over the digitized copies of Public Domain material, thereby substantially limiting the use and reuse of content that belongs to the common cultural heritage by subjecting it to a requirement of prior authorisation.

This risk is further increased with the introduction of the PSI 2013 regime, which allows the conclusion of exclusive agreements between private entities and PSBs under restrictive terms and with a potential perpetual validity.

A work in the Public Domain should have the same legal properties, regardless of the format or medium it is in. Hence, works that are in the Public Domain in analog form [should] continue to be in the Public Domain once they have been digitised (see the Europeana Public Domain Charter, Principle #2, and Communia Public Domain Manifesto, Recommendation #5). Contractual agreements as regards the digitization of Public Domain works should acknowledge and respect the fundamental properties of these works, and not attempt to subvert Public Domain principles through contract and other legal mechanisms.

To ensure the broadest availability and long-term accessibility of Public Domain works, their digital copies should be made available to the public in a format and medium allowing for easy identification, retrieval and modification, while ensuring the maximum interoperability of these works. The use of metadata and open formats constitutes an important requirement to ensure that the value of the Public Domain is properly understood and that the works belonging to the Public Domain will always remain freely (re)usable.

In view of this, we make the following recommendations:

No copyright protection

• over the digitized version:

All parties to the partnership should expressly state that they do not claim copyright nor sui generis rights in the digitized copies of the Public Domain material.

• The digitized version should be marked as in the Public Domain using a tool such as the Creative Commons Public Domain Mark, or, alternatively, if digitization itself gave rise to new related rights, these should be waived by applying a Public Domain dedication tool such as CC0.
• Up-to-date metadata and the database (if protected by sui generis rights) should be made available and dedicated to the Public Domain using tools such as the CC0 Public Domain Dedication following the model of Europeana, the Digital Public Library of America, Harvard Library and the British Library.
• for newly published works:

In countries where copyright law grants an additional term of protection to the publishers of Public Domain works that have never been published before, the rights holder should dedicate the work to the Public Domain by means of tools such as the CC0 Public Domain Dedication.

No contractual restrictions

• Access and reuse to Public Domain works should be unrestricted, both on premises and on the Internet for any type of use and reuse, including for commercial purposes.

• No exclusive agreements should be made between the cultural institution and the commercial vendor that would preclude another vendor or institution from digitizing or distributing the same Public Domain material.

Openness & Transparency

• The institution should use standardized, open technological formats and request the contractor to transfer digitized material and metadata in standardized open technological formats.

• Bidders’ offers should be made publicly available. Transparency should prevail in the decision-making process affecting public access to our common cultural heritage collections.

The Communia International Association calls for cultural institutions, such as libraries, archives and museums to observe the following guidelines, and to promote them in their negotiations with contractors, donors and legal owners of materials.

The post COMMUNIA policy paper on digitization agreements appeared first on COMMUNIA Association.

Many people recognise the value of works which are in the public domain and may even be familiar with many initiatives that provide access to public domain works (such as the Internet Archive, Wikimedia Commons, Project Gutenberg, etc). Yet, many people do not have a very clear conception of what the public domain is or why it is important.

New digital technologies make it possible for the public to access a vast quantity of cultural and historical material. Much of this material is in the public domain, and ongoing digitisation efforts mean that much more public domain material (in which copyright has expired) will be made available for the public to enjoy, share, and reuse.

However, it is often difficult to determine whether a work has entered the public domain in any given jurisdiction, because the terms of copyright protection differ from country to country. And  people are sometimes unclear about what can or cannot be done with works in the public domain. Copyright laws are complicated, and for the layperson it may not be clear how they apply in relation to a specific work. Though there are many international and multinational copyright agreements and copyright organisations, the exact details of copyright law vary from one country to another. Different countries have different legal systems and traditions – and copyright laws reflect these differences. Hence, given that works enter the public domain under different circumstances depending on the country, oftentimes the status of an individual work cannot be universally established. Rather, it needs to be evaluated on a case-by-case basis for every jurisdiction.

In order to make public domain determinations a less daunting task, the Open Knowledge Foundation has been working on the development of the Public Domain Calculators (http://publicdomain.okfn.org/calculators/) – a tool that enables people to determine the copyright status of a work (in the public domain, or not), thus helping users realize the value of artworks from the past.

A look into the past ..

The Open Knowledge Foundation began working on the first implementation of the Public Domain Calculators in 2006, then for the Public Domain Works project, whose goal was to identify sound recordings which are in the public domain in the United Kingdom, based on metadata provided by the BBC and private collectors. In 2007, as Public Domain Works began working with the Open Library project, the idea emerged to create a set of algorithms for determining the public domain status of a work in different jurisdictions.

At the first Communia workshop in 2008, the Open Knowledge Foundation proposed collaborating with legal experts in the network to create a set of public domain calculators for different jurisdictions in Europe. These discussions eventually led to the creation of the Public Domain Working Group, who planned to work on public domain calculators across Europe.

After several years, thanks to the support of a large community of legal and technical experts, the public domain calculators of the Open Knowledge Foundation are now a functional piece of software which can help people determine the copyright status of a work. Based on the research done by Europeana Connect (a project funded by the European Community Programme eContentplus), the public domain calculators rely on a series of national flowcharts which represents the provision of copyright law in the form of a decision tree. For any given work, the public domain calculators can determine whether or not that work is in the public domain in any given jurisdiction by matching the bibliographic metadata attached to that work against the provisions of copyright law for that particular jurisdiction.

In terms of technology, the Public Domain Calculators of the Open Knowledge Foundation shares similarities with the those recently developed by Kennisland and the Institute for Information Law at the University of Amsterdam (IviR) in the framework of Europeana Connect. The main difference between the two is that the OKFN calculators have been designed to be completely independent from any user input and are therefore completely automated. This represents the most innovative aspect of this technology. By gathering the relevant metadata from a variety of databases, the public domain calculators only process the data necessary to identify the legal status of a work, so as to subsequently present them to the users upon request.

A glance into the future ..

The value of the Public Domain Calculators has recently been acknowledged by the French Ministry of Culture, which created a partnership with Open Knowledge Foundation France to develop a working prototype of the calculators for the French jurisdiction. In collaboration with two pilot institutions, the Bibliothèque Nationale de France and the Médiathèque de l’architecture et du patrimoine, the calculator will be presented as a pedagogical tool for the cultural sector to better understand the legal status of the works and the value of the metadata it produces.

In France, this comes at an important time, as we’re entering the time when most of the works produced by authors who died during the second world war would, theoretically, enter the public domain. Yet, French copyright law stipulates that authors who died during the war in the name of France have extended terms of protection. Hence, by applying the standard 70 years post-mortem rule, a number of works which are still eligible for copyright protection might end up being incorrectly assumed to be in the public domain. The public domain calculators represent a technological solution to help people identify whether or not these works have indeed entered into the public domain.

But the value of the public domain calculators extends far beyond highlighting the peculiarities of national copyright laws. Their objective is also to promote good practices within the cultural sector. Hence, in France, in addition to being a mere pedagogical tool, the calculators will also be employed as a benchmarking tool to help cultural institutions identify flaws and gaps in the structure or content of their bibliographical metadata, so as to ultimately increase the accuracy of the results.

We hope that other countries will follow the example of France, and that the potential of the public domain calculators as a means to promote good open data policies within the cultural sector will be appreciated by many other countries around the world.

The post Calculating the Public Domain appeared first on COMMUNIA Association.

Together with La Quadrature du Net, Framasoft, SavoirsCom1 and the Open Knowledge Foundation France COMMUNIA has issued a statement (in french) to express our profound disagreement with the terms of these partnerships that restrict digital access to an important part of Europe’s cultural heritage. The agreements that the BnF has entered into, effectively take the works being digitized out of the public domain for the next 10 years.

The value of the public domain lies in the free dissemination of knowledge and the ability for everyone to access and create new works based on previous works. Yet, instead of taking advantage of the opportunities offered by digitization, the exclusivity of these agreements will force public bodies, such as research institutions or university libraries, to purchase digital content that belongs to the common cultural heritage.

As such, these partnerships constitute a commodification of the public domain by contractual means. COMMUNIA has been critical of such arrangements from the start (see our Public Domain Manifesto) and our Policy Reccomendations 4 & 5. More interestingly these agreements are also in direct contradiction with the Public Domain Charter published by the Europeana Foundation in 2011. In this context it is interesting to note that the director of Bibliothèque nationale de France currently serves as the chairman of the Europeana Foundation’s Executive Board.

The post Communia condemns the privatization of the Public Domain by the Bibliothèque nationale de France appeared first on COMMUNIA Association.

Given the limited term of protection granted by copyright law, a large number of works – whose authors died several decades ago – can no longer be owned by anyone and their use can no longer be constrained. They have become part of the common pool of knowledge that constitutes our cultural heritage and that can be freely used by everyone and for any purpose.

This year, in Europe, we are happy to welcome the works of:

Walter Sickert, a German painter who had an important influence on distinctively British styles of avant-garde art in the 20th century.

Grant Wood, an American painter from Iowa best known for his paintings depicting the rural American Midwest. He is best known for his painting American Gothic, an iconic image of the 20th century.

Bruno Schulz, a Polish writer and artist most famous for his collection of short stories The Street of Crocodiles (1934) which centre on a merchant family from a small town in the Galician region.

Arthur Edward Waite, a scholarly mystic who wrote extensively on occult and esoteric matters, and co-created the widely used Rider-Waite Tarot deck.

Stefan Zweig, one of the most famous authors in the world of the 1920s and 1930s;

Franz Boas, a German-American pioneer of modern anthropology often referred to as the “Father of American Anthropology”. He applied the scientific method to the study of human cultures and societies; previously this discipline was based on the formulation of grand theories around anecdotal knowledge.

Robert Musil, an Austrian writer whose huge tome of an unfinished novel “The Man Without Qualities” is generally considered to be one of the most important modernist novels;

… and many more.

The Public Domain Review has compiled a list of the most notable authors whose works are entering the public domain in those countries with a ‘life plus 70 years’ copyright term.

These works can now be freely reproduced and shared to everyone; they can be freely use, reused, translated, adapted or otherwise modified by anyone without asking for permission and without incurring the risk of violating the law.

Yet, it is important to remember that copyright law differs from one country to another. For instance, in the U.S., the Sonny Bono Copyright Term Extension Act – which added 20 years to most copyright terms – effectively “froze” the public domain by stipulating that, unless otherwise stipulated by the copyright owner, all works produced in or after 1923 and still eligible for protection in 1998 would not enter the public domain until 2019 or after. Unfortunately, today, there is not much to celebrate for them.

Hence, before using a work, it is always necessary to check the status of the work in the country where it will actually be used. Yet, given the complexity of copyright law, this can often be an extremely tedious complicated process. To facilitate the task, various tools have been developed –  such the Public Domain Calculators of the Open Knowledge Foundation, and  outofcopyright.eu from Europeana – to help determine which works are in the public domain in various countries around the world.

For more information on the public domain day, check out the Public Domain Day website – an initiative of the international Communia Association for the promotion and the preservation of the Digital Public Domain, with the special support of the Open Knowledge Foundation.

The post Happy Public Domain Day appeared first on COMMUNIA Association.

What unites all these organisations is that they share the common goal of encouraging the dissemination of knowledge and information, including – but not limited to – works that are in the public domain.

After an introduction by Adrienne Alix (Wikimedia France) and Mélanie Dulong de Rosnay (ISCC/Communia), the event started with a screening of Georges Méliès’ science fiction movie “A Trip to the Moon” from 1902. This was followed by a presentation of works that entered the public domain on January 1st 2012. A list was created by sorting the entries of Wikipedia according to the authors’ deaths and is available at the following address. The list includes famous French authors such as Maurice Leblanc (Arsene Lupin), as well as the painter Robert Delaunay. It also includes internationally renowned authors such as James Joyce and Virginia Woolf, to name a few.

After the initial celebration, Lionel Maurel (Bibliothèque Nationale de France) and Primavera De Filippi (Open Knowledge Foundation) went on to illustrate the role of open bibliographic metadata in its relation with the public domain. While accurate and precise metadata is necessary for the purpose of identifying works that have fallen in the public domain, it is often difficult for libraries and other cultural institutions to provide all necessary information to properly determine the legal status of a work. This also was the occasion to present the Public Domain Calculators of the OKF and the challenges that must be addressed as a result of the complexities of French copyright law.

This intervention was followed by a round table between Philippe Aigrain (La Quadrature du Net), Rémi Mathis (Wikimedia France), Jérémie Zimmermann (La Quadrature du Net), Tangui Morlier (Regards Citoyens) and Lionel Maurel (Bibliothèque Nationale de France), accompanied in the background by a series of silent movies from the Lumière brothers.

Rémi Mathis started to discuss the fonction assumed by the public domain in the dissemination of culture and information, focusing on the various projects of Wikimedia. He began by explaining the concept of the public domain and the advantages it might bring to society, to subsequently present a number of initiatives, such as Wikicommons and Wikisource, which are strongly related to the public domain. There are however still several challenges to be addressed before one can rely upon the public domain in order to create a common cultural heritage at the national and international level.

Philippe Aigrain went on by explaining the relationship that subsists between the public domain and the common good, a relationship that is difficult to establish because of the poorly defined concept of the public domain. challenges faced by the public domain as a common good and its impact on society. From an historical perspective, Philippe Aigrain draws a distinction between “res nullius” (what does not belong to anyone) and “res communis” (what belongs to the community), and argues that the copyright system should shift from a situation where anything that is not in the public domain cannot be freely reused to a situation where anything can be freely reused unless it has been specifically provided otherwise.

It was then the turn of Jérémie Zimmermann, whose speech starts with an important question: “Does society need to change according to the rules of law, or is it the law that must change to better comply with society?” Jérémie presented the dangers threatening the public domain, as a result of the constant expansion of intellectual property laws, the introduction of sui-generis rights on formerly non-protected materials, and the growing imposition of contractual restrictions on the legitimate use of a protected work. He contended, however, that the most fundamental thing to preserve is the free Internet, intended as a network that is not affected by governemental control or corporate censorship. Given the recent issues at stake, Jeremie concluded his talk with a series of warning concerning the biggest threats to the free Internet, known under the acronyms of ACTA, SOPA, PIPA, URAA and so forth.

Tangui Morlier went on to present the activities of Regards Citoyens and how their activities are affected by similar issues to those affecting the public domain. As data are not subject to the french copyright but to a sui-generis right on facts and information, public domain means, for the Open Data community, more “res nullius” than “res communis”. To make government data part of the Commons as Regards Citoyens would wish, new legal tools are needed such as a real Freedom of Information Act and a public list of all public government data made accessible to private entities. Unless these tools are built, it is currently necessary to consider what is the most effective contractual tool. The answer is obviously to encourage the use of free/libre licences (such as the ODBL, CC-Zero or the « Licence Ouverte » in France) in order to allow anyone to freely use and re-use public and governmental data.

Finally, Lionel Maurel closed the discussion with an important observation. The fundamental problem of the public domain is that it does not exist, given that in France, at least, it can only be defined as a negation of rights. In this respect, he referred to the Public Domain Manifesto of the Communia network which constitutes a preliminary attempt to define the public domain from a more positive stanpoint.

The event ended with a series of informal discussions around a cocktail in order to celebrate the public domain and the success of the public domain day.

The post Public Domain Day 2012 (Paris) appeared first on COMMUNIA Association.