The defendants are the world-renowned German toy making companies Ravensburger AG, Ravensburger Verlag GMBH and their Italian office represented by Ravensburger S.r.l.. They were brought to court for using the image of the widely popular ​​Public Domain drawing to produce and sell puzzles without authorization or payment of a fee to the Gallerie dell’Accademia di Venezia, where the physical artwork is kept.

A puzzling question

Let’s pause here. Authorization, fee, Public Domain work… These don’t add up. The Public Domain is made up of works that are out of copyright, free to use by anyone for any purpose. The Public Domain is the treasure trove of creative works that inspires us all and upon which all creativity depends. In fact, protecting the Public Domain is so important that in 2019 the European legislator made it explicit in Article 14 of the European Directive on Copyright in the Digital Single Market (CDSM) that non-original reproductions of works in the Public Domain must stay in the Public Domain — no copyright protection arises from the simple act of reproduction of public domain works, e.g. through digitisation.

So, how come the Gallerie could prevent Ravensburger from using an image of the Public Domain Vitruvian Man on its puzzles? How come the court:

• prohibited the defendants from using for commercial purposes the image of the work “Vitruvian Man” by Leonardo da Vinci and its name, in any form and any product and/or instrument, including digital ones, on their websites and on all other websites and social networks under their control;
• ordered the defendants to pay a penalty of € 1.500 to the Gallerie dell’Accademia di Venezia for each day of delay in the execution of the precautionary order;
• ordered the publication of the order in extracts and/or summaries of its contents by the Gallerie dell’Accademia and at the expense of the defendants in two national daily newspapers and in two local daily newspapers?

The answer: The Italian Cultural Heritage Code

The answer lies with a particular piece of Italian law: the Italian Cultural Heritage Code (Legislative Decree n. 42/2014). According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.

Incompatible with Article 14 CDSM

Be that as it may, the Cultural Heritage Code’s “authorization+fee” system generally deals a severe blow to the Public Domain in Italy, and alarmingly, beyond its national borders — Creative Commons calls attention to this in its Global Open Culture Call to Action to Policymakers. It is in fact completely at odds with EU legislation protecting the Public Domain: Article 32, quater of the Italian Copyright law (Law n. 633 of April 22nd, 1941) clearly conflicts with the intent of the European legislator. That is because Article 32, quater transposes Article 14 CDSM but limits its effect to the application of the Italian Cultural Heritage Code. We at Communia have strong reasons to believe this is incompatible with the letter and the spirit of Article 14.

Even in cases where European legislation does not in itself have direct effects or applicability in the national legal system of the Member States, it must always represent an indispensable guiding parameter for national courts, which are called upon to interpret national law in the light of European legislation (i.e., the obligation to interpret it in conformity). Further, there is a general prohibition for Member States to allow a national rule to prevail over a contrary EU rule, without making a distinction between earlier and later national law.

Not the only case

The Vitruvian Man is sadly not an isolated case. Just a few months ago, we commented on the one opposing the Uffizi Museum to Jean Paul Gaultier, where the defendant, a French fashion designer, used images of another Renaissance masterpiece, Botticelli’s Birth of Venus. These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.

Quite curiously, even though the precautionary order should be executed with specific regard to the Vetruvian Man’s puzzle, it is interesting to see that on the defendant’s website one can still  buy puzzles reproducing “La Gioconda” (the Mona Lisa) and “The Last Supper” by Leondardo da Vinci; “The Kiss” by Hayez and another “The Kiss” by Klimt and many other monuments, works of art, as well as images of nature and animals.

Liberalise it

Is legal action the right way to deal with this issue? Court proceedings are expensive and will not change reality. A different approach (compatible with an open access policy and the protection of the Public Domain) that liberalises the faithful reproduction of cultural heritage in the Public Domain would be more supportive of tourism, the creative industry and “the benefit of civil society in general. Other than being compatible with the principle stated by Art. 14 of the CDSM Directive.

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Judicial developments are much needed to provide further clarity as to the scope of users rights in Europe. There’s still legal uncertainty as to whether certain public interest activities are permitted under existing exceptions and limitations to copyright,  how users can assert their rights on online platforms, whether (and how) users can enforce their rights against contracts and technological measures, and what’s the status of the public domain. The implementation of the new Copyright Directive, particularly Article 17, will bring further interpretation challenges. 

Whether and how much Communia will be able to engage in strategic litigation in the next decade is still to be determined, but we decided to take the first steps in this realm, by supporting a court proceeding that is aimed at challenging an abusive practice that is eroding the public domain: that of claiming exclusive rights overs tridimensional digitizations of public domain artworks.

The case against Musée Rodin

In 2018, artist and open access activist Cosmo Wenman filed a freedom of information request with the Musée Rodin in Paris to access the 3D scans of Auguste Rodin’s sculptures (all of which are in the public domain). When the museum refused to comply, Mr. Wenman appealed to the French Commission on Access to Administrative Documents (CADA).

In response the CADA confirmed that these 3D scans in question are administrative documents and are subject to public disclosure, under freedom of information laws, and therefore the Musée Rodin is required to give public access to them. 

Despite this opinion, Musée Rodin did not provide Ms. Wenman with access to the materials and, in reaction to that inaction, Mr. Wenman has filed a suit against the museum in the Administrative Tribunal of Paris (you can read more about the process, including the court files, here), which we have now joined as a third party together with our friends from Wikimedia France and La Quadrature du Net.

Protecting the public domain

The public domain belongs to all and is often defended by no-one. Mr. Wenman’s request can make an important contribution to counteracting attempts to exert exclusive control over public domain works by claiming exclusive rights in technical reproductions of the works.

As we stated in our Public Domain Manifesto, we believe that having a healthy and thriving public domain is essential to the social and economic well-being of our societies. By ensuring that everyone has access to our shared culture and knowledge and that all members of society can build upon it, the public domain plays a capital role in the fields of education, science, cultural heritage and public sector information. 

In a time where, for the first time in history, we have the tools to enable direct access to most of our shared culture and knowledge, it is important that the public domain is actively maintained so that it can continue to fulfill this key role of facilitating innovation and cultural participation for the benefit of the entire society.

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Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.

The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them.

Even though the Commission has missed the opportunity to introduce clear rules protecting the Public Domain, a number of Members of the European parliament have now submitted amendments that aim at preventing further privatization of the Public Domain through digitization (or other means).

MEPs Felix Reda, Catherine Stihler, Evelyn Regner, Lidia Joanna Geringer de Oedenberg, Victor Negrescu, Sergio Gaetano Cofferati, Josef Weidenholzer, Isabella Adinolfi, Laura Ferrara, David Borrelli and Dario Tamburrano have all proposed the addition of the following (or very similar) language to the text proposed by the Commission:

Member States shall recognise that once a work is in the public domain because the copyright and related rights therein have expired or never existed, faithful reproductions in full or in part of that work, regardless of the mode of reproduction and including digitalisation, shall equally not be subject to copyright or related rights.

Bonus points go to MEPs Evelyn Regner and Josef Weidenholzer who have also proposed to rename Article 5 into “Preservation of cultural heritage and safeguarding the Public Domain“.

Even though these amendments have been tabled by a relatively large group of MEPs it is far from certain that they will make it into the European Parliament’s final report. We hope that during the ongoing deliberations more MEPs will realize the importance of closing these loopholes which allow cultural heritage institutions to keep works for which the original copyright term has long expired out of the public domain.

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Catherine Stihler’s opinion contains proposals for amendments that address many of the issues that we have identified with the proposal, and on all of them she makes suggestions that move into the right direction (which includes proposal for a total of five new mandatory exceptions).

R.I.P. press publishers right

The ill-considered proposal to introduce a new neighbouring right for press publishers right is met with the only sensible answer: deletion of the relevant article and recitals. She points out, in line with what we have argued for, that the protection sought by publishers can be achieved with much less invasive means than the reaction of a new right:

Simple changes made to Article 5 of the Enforcement Directive 2004/48/EC, making it also applicable to press publishers, will provide the necessary and appropriate means to solve this matter.

Together with indications that the rapporteur for the JURI committee is also not convinced that press publishers need such a right, this starts looking like the end for the short sighted idea of curing the problems of the press sector with additional rights.

No upload filtering requirement for online platforms

While Stihler’s opinion is less rigorous on the upload filtering provisions contained in Article 13 (which we would also like to see deleted), her approach to the mess created by article 13 covers all the right bases. Her amendments remove all references to filtering measures and “effective content recognition technologies” and make it clear that any new obligations do not contradict the E-Commerce Directive:

Regarding Article 13 (and corresponding recitals 37, 38 and 39) the Rapporteur believes that the current wording is incompatible with the limited liability regime provided for in Directive 2000/31/EC (Electronic Commerce Directive), a piece of legislation that has proven to be enormously beneficial for the internal market in the digital sphere.

Through her amendements she makes it explicit that the provisions of the new directive must be compatible with articles 14  (liability) and 15 (monitoring) of the E-Commerce Directive. She also introduces a requirement that users’ fundamental rights should be taken into account by any agreements conducted between rightsholders and platform operators. As a result of all of these interventions the overall purpose of article 13 becomes even more muddied. We agree with the leading copyright academics who in their recent open letter concluded that

Article 13 needs radical reform that may not be achievable through amendments within its current structure. We would advise removing the Article from the Proposed Directive, and focusing attention on improving the procedure for “notice and takedown”’.

Stihler proposes after Joulaud a new mandatory exception for User Generated Content that we welcome, as it seems to be modelled after the exception that we had proposed here.

More breathing room for the cultural heritage sector

Another area where Stihler’s opinion shines is where she deals with the issues affecting cultural heritage institutions. A longtime supporter of libraries and other cultural heritage institutions, Stihler broadens the article 5 exception’s purpose from reproducing for preservation to all purposes related to the public interest missions of cultural heritage institutions.

Her new mandatory exceptions would finally allow libraries, museums and archives to fully benefit from the technological possibilities created by the digitisation of their collections:

A new exception on document delivery by cultural heritage institutions or educational establishments and another on access for the purposes of research or private study on the premises of cultural heritage institutions or educational establishments are introduced with this objective. Furthermore, an exception on public lending of literary works is also introduced with the objective of ensuring that all citizens of the European Union have access to a full selection of books and other resources.

Finally, Stihler proposes important improvements to the Commission’s proposals aimed at increasing access to out of commerce works. In reaction to demands by cultural heritage institutions, she adds an exception that will kick in situations where the Commission’s extended collective licensing approach cannot work.

Progress on text & data mining and education

Stihler’s opinion also contains amendments that improve some of the problematic elements found in the exceptions proposed by the Commission for text and data mining (TDM) and digital and cross-border educational uses. She expands the scope of beneficiaries of the TDM exception to “any individual or entity, public or private, with lawful access” and removes the limitation that the mining must be undertaken “for the purpose of scientific research”. Both of these  moves would provide for a wider and less troublesome future for TDM in Europe.

With regard to digital educational uses Stihler seems to have embraced our arguments that the exception should not be limited to formal educational uses or digital uses only:

Also, in the field of the use of works and other subject matter in teaching activities (Article 4), the Rapporteur believes that the exception should benefit not only all formal educational establishments in primary, secondary, vocational and higher education, but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education. The Rapporteur believes that the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal.

Although the general intent is laudable, a closer analysis of the proposed amendments reveals that the draft opinion needs some improvements, such as fixing the continued problematic inclusion of licenses in the education exception. (We will address these issues in a more detailed follow-up post).

All in all, not only does the draft IMCO opinion send a very strong signal that the Commission’s proposal needs to be improved substantially, but it also introduces solutions for almost all of the shortcomings. Being focussed on consumers’ rights, the IMCO committee has traditionally been an important balance in the discussions about copyright, and this first intervention in the discussion about the proposed DSM Directive continues this tradition.

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The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.

At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement  casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.

Can ECL still provide a solution for out-of-commerce works?

Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights.

In the light of the ongoing efforts to modernize the EU copyright framework, this means that any legislative solution to the issue of out-of-commerce works needs to be based on a clearly defined exception to the exclusive rights of authors and other creators. The most obvious way to achieve this would be for the EU legislator to introduce a mandatory exception that allows cultural heritage institutions to make out-of-commerce works in their collections available online, which is exactly what cultural heritage institutions have been arguing for in the run up to the Commission’s proposals.

Unfortunately the Commission has not paid much attention to this recommendation,  and instead has presented a flawed proposal to require member states to introduce Extended Collective Licensing in their national laws. Given that the Commission’s proposal would explicitly introduce ECL into EU copyright law, but at the same time fails to create an explicit exception to the exclusive rights of authors and other creators, it remains an open question whether the Commission’s proposal would satisfy the requirements that CJEU has outlined in the Doke & Soulier decision. In this situation the EU legislator would probably be well advised to strengthen the Commission’s proposal by adding a mandatory exception benefitting cultural heritage institutions.

Commercial exploitation is not the answer

There also is another side of the Doke & Soulier case that has received relatively little attention, even though it provides an important clue for designing the EU approach to the out-of-commerce works problem: The French mechanism for making out-of-print works available relies on commercial publishers who can obtain licenses to re-publish digital editions of out-of-print works. In essence it tries to put the out-of-print works back into commercial circulation.

The reason why Doke & Soulier brought their legal challenge is the fact that the French system confiscates the exclusive rights to their works from authors (and previous publishers) and then lets a collecting society license them to other publishers. Even when one ignores the legal details of the case, it is hard to justify why the fact that a book is out-of-print should give reason to expropriate authors of their rights in favor of commercial exploitation by publishers.

It is difficult to understand why the French government is relying on this questionable mechanism to bring old books back into circulation when there is a much more obvious (and less problematic) solution: allow cultural heritage institutions to make out-of-commerce works in their collections available online as part of their existing public task.

Such a solution also limits the exclusive right of authors to control the use of their works, but it does so in a much less invasive way, and relies on public institutions that have a long history of providing access to works that have fallen out of commercial circulation. While this approach is central to the Commission’s proposal, it is needlessly weakened by the fact that recital 27 of the proposed directive would allow cultural heritage institutions to generate “reasonable revenues” from making out-of-commerce works available online.

It is unclear why the Commission has included this recital in its proposal. The idea that it is possible to generate significant revenues from providing online access to old collections has turned out to be wishful thinking. The only effect of allowing institutions to charge for access to works that they make available thanks to an exception is to undermine support among rightsholders. Providing access to cultural heritage is part of their public interest mission. Introducing revenue flows into the process only muddies the waters.

A real solution for out-of-commerce works is needed

Taking into account these two lessons from the Doke & Soulier ruling, it is clear that the Commission’s proposal for a “solution” to the out-of-commerce problem needs to be improved. It needs to be more solidly grounded in the public interest mission of cultural heritage institutions (removing recital 27 is a good first step) and it needs to be anchored by an exception to the exclusive rights  of authors that allows institutions to make these works available, either based on extended collective licensing or, where such arrangements cannot be expected to work, on the basis of that exception alone.

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This opinion comes at a crucial time when the EU Commission is finalising its copyright reform proposal, which is scheduled to be published in September. As part of this proposal the Commission has promised to propose measures that will “make it easier to digitise out-of-commerce works and make them available”. While the Commission has so far been silent on the mechanism that it would propose to achieve this goal, it is generally understood that there are two different approaches on the table:

• an expansion of the existing exceptions to copyright benefitting cultural heritage institutions (as demanded by cultural heritage institutions themselves), or;
• measures that would facilitate ECL schemes and their cross-border application.

The Death of Extended Collective Licensing?

While AG Wathelet’s opinion only concerns the specific question referred to the CJEU by the French court, it has much wider-ranging consequences. Should the CJEU rule in agreement with the opinion (note that a decision is not expected until after the September publication of the Commission’s proposal), then Extended Collective Licensing is effectively dead as a solution for the copyright problems created by mass digitisation. In this sense, this opinion supports the position expressed by cultural heritage institutions that the only real solution for their issues is an update of the relevant exceptions in the InfoSoc directive.

While the immediate effect of such a ruling might be negative in the short run (it might limit access to French out-of-print books that are currently available), it could have a positive long-term impact. In the wake of the AG opinion the very real possibility of such a ruling could sway the Commission (and Member States that are reluctant to update exceptions, such as France) toward deciding on an approach based on an update of the relevant exceptions. This possibility alone makes it worth taking a closer look at AG Wathelet’s opinion.

His main argument is plain and simple: the legislation in question is not included in ‘the detailed and exhaustive list of exceptions and limitations in Article 5 of [the copyright directive]‘ [para 28]. Given that

the digital exploitation of copyright books constitutes ‘reproduction’ and ‘communication to the public’ of a work, which require individual and separate authorisation by the author, unless those acts are covered by an exception or a limitation provided for in Article 5. [para 26]

This means that the authors or subsequent rights holders have the exclusive right to authorise such reproductions and communications to the public. According to Wathelet the French law, which transfers the right to authorise these acts to a Collective Management Organisation, clearly violates this this fundamental principle of the EU copyright framework:

Authorizing Collecting Societies to issue licenses on behalf of rightsholders who are not ‘not fully exploiting [their] work[s], for example in the event that [they are] not being commercially distributed to the public’ [para 43] is the core mechanism of Extended Collective Licensing.

Wathelet makes it clear that in his opinion that Articles 2 & 3 of the InfoSoc directive preclude any law that authorises collecting societies to issue licenses on behalf of non-members. According to his analysis, a collecting society that grants licenses for the reproduction and communication to the public of works of authors that it does not represent infringes on those authors’ rights just as much as a memory institution that makes such works available without obtaining permission. Wathelet then proceeds to enlist the Orphan Works (OW) directive in his argument. According to AG:

… [the Orphan Works directive] was adopted because ‘in the case of orphan works, it is not possible to obtain such prior consent to the carrying-out of acts of reproduction or of making available to the public’. […] [The OW directive] provides that Member States are to provide for an exception or limitation to the right of reproduction and the right of making available to the public provided for respectively in Articles 2 and 3 of Directive 2001/29 to ensure that [cultural heritage institutions] are permitted […] to make them available to the public.

He goes on to point out that:

… it would be paradoxical if, pursuant to [the OW directive], the requirements imposed on the reproduction and communication to the public of an orphan work were far more stringent than those applicable to the same acts of exploitation in respect of ‘out-of-print’ books under national legislation such as that at issue in the main proceedings. In contrast to [the OW directive], which requires a diligent search for the rightholders to be conducted in good faith prior to the exploitation of a work, the national legislation at issue does not require an individual approach to be made to the author.

Given that the Orphan Works directive has so far failed to achieve its purpose of enabling the mass-scale digitisation of orphan works (primarily due to the overly onerous diligent search requirements pointed to by Wathelet), it is somewhat ironic that he uses it as an argument against a scheme that has been much more successful in achieving the same objective. This irony notwithstanding, Wathelet’s main argument remains valid:

In the existing structure of the EU copyright system, exceptions and limitations are the mechanisms for creating a balance between the exclusive rights of authors and other socially beneficial uses of their works (such as mass digitisation of out-of-commerce works maintained in the collections of Europe’s Libraries, Archives and Museums). Enabling such uses therefore requires updating the current list of exceptions and limitations and cannot be achieved by dubious legal constructions that assign difficult to obtain rights to collecting societies.

Update exceptions and limitations now!

The current EU copyright framework foresees exceptions to copyright for the purposes of building reconstruction – 5.3(m) – and the demonstration and repair of equipment – 5.3(l). If the EU can contemplate exceptions for these purposes, it is completely absurd that in an age where the importance of access to knowledge and culture is widely understood, the EU copyright framework still lacks a mechanism that allows publicly funded libraries and archives to make out-of-commerce works in their collections available online.

The European Commission is currently on the brink of proposing legislation which for the first time in fifteen years could result in an update of the exceptions and limitations in the EU. Over the last few weeks there have been increasing signals that the proposal will only contain minimal updates to the status quo. In this situation the Commission would be well advised not to ignore the arguments against Extended Collective Licensing brought forward by AG Wathelet in his opinion and propose a substantial update of the relevant exceptions and limitations to enable the mass digitisation of out-of-commerce works. The alternative would be another lost decade for online access to Europe’s rich cultural heritage.

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Less than three weeks after the European Commission launched a consultation that appears to be designed to create additional copyrights for publishers, Hachette CEO Arnoud Nourry warned his international publishing colleagues that Google is a bigger threat to publishers than Amazon and greatly benefit from what he called “the European Commission’s senseless attack on copyright”. According to a summary of his talk provided by the Bookseller, he then went on to declare that:

… vast exceptions to copyright law for libraries, for education, for fair use” could provide an opening for Google to rebrand itself as a library, opening up its repositories of scanned content for free and profiting from advertising income [and] questioned why the EC was targeting publishers: “It is as if the Commission had made it a priority to weaken the only European cultural industry that has achieved worldwide leadership. Need I remind you that nine of the 12 largest publishing companies in the world are European?”’

To anyone following the relatively tame course the Commission has charted out for reviewing the EU copyright rules, this looks like a relatively ill-informed overreaction by a publisher who seems to be offended that European legislators dare to even think about modernizing EU copyright without asking the publishing industry for permission first. The obsessive focus on Google as an evil outsider intent to destroy culture-as-we-know-it highlights the unease the traditional publishing sector still feels when it comes to all things digital.

Surely every economic sector is entitled to its own approach to dealing with a changing environment, and it evident that publishers have an important stake in a review of the existing copyright rules. But it is questionable whether their entrenched market position calls for blindly striking out at everyone who is not a publisher (Google, the Commission, libraries). Watching this happen would be somewhat entertaining if Monsieur Nourry had not chosen to criticize a sector that is arguably most in need of updated copyright rules: libraries (and by extension the entire cultural heritage sector).

Arguing that libraries are proxies for the commercial interests of Google and other companies shows a complete lack of respect of the role and function of libraries and other public cultural heritage institutions in providing crucial access to information and cultural resources. A coalition of European library associations condemned Nourry’s comments, stating, “libraries are specifically designated worldwide as institutions necessary for serving the global public interest for a non-commercial purpose…[w]e go about our work for no direct or indirect economic gain.”

Cultural heritage institutions deserve better copyright rules

In Europe, publicly-funded libraries, museums, and archives are independent institutions, and have a proud tradition of operating without pursuing any direct or indirect economic gain. They exist to protect and promote the interests of their users – citizens, creators, students – and not to conspire with commercial entities for financial gain.

European cultural heritage institutions support a balanced copyright system where everyone has access to information and creativity, and creators are fairly rewarded. Unfortunately this balance no longer exists: The EU copyright rules that have traditionally provided exceptions to copyright tailored to allow cultural heritage institutions to pursue their public interest missions are stuck in the semi-digital mindset in place since the turn of the millennium. They don’t allow institutions to digitize their collections on a large scale, they make it nearly impossible to make works that are under copyright—but which have been effectively abandoned by their rightholders—available online, and they do not provide adequate protections against restrictive contracts and licenses that threaten to upend the privileges enjoyed by libraries and other institutions.

This sorry state of the copyright framework is preventing cultural heritage institutions from providing access to their collections in a way that internet users expect. No one (not even the publishers) benefits from the fact that cultural heritage institutions face enormous problems in making their collections available online because large parts of these collections are still in copyright but have been abandoned by their rightholders, who are not around to grant the required permission to make them available. This inability for GLAM institutions to make their collections available in the way that the public expects will threaten their very existence. Why should the public continue to pay for cultural heritage institutions if they are only granted online access to a small percentage of the shared commons of cultural works?

Publishers need libraries (and vice versa)

By attacking the limited and reasonable reforms that cultural heritage institutions are asking for, Monsieur Nourry is contributing to a sad dismantling of the long tradition of publicly funded European cultural heritage institutions. If publishers really want to prevent an information monoculture, where access to information is controlled by a small number of online platforms, then they should work with the cultural heritage institutions to strengthen their ability to operate in the digital environment.

A healthy and vibrant cultural heritage sector is an important asset for creators (and by extension their publishers). Authors rely on libraries, museums, and archives as places of inspiration, research, and raising awareness for their work. It is a shame that the publishing industry, blinded by its unwillingness to accept the digital reality, seems to have have lost the ability to see this.

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COMMUNIA’s 2012 analysis of the directive showed that it was bound to be a train wreck. A preliminary comparative study of the situation in the UK, the Netherlands, and Italy undertaken by the EnDOW project reveals that the national implementations of the directive across Europe do not provide the much needed solution for the problem of orphan works.

Under the directive, cultural heritage institutions are allowed to publish works online for viewing (not re-use) after a ‘due diligence search’ has been performed, recorded, and submitted to the orphan works database at OHIM. Works that have been registered in this database can then be digitized and made available online under an exception to copyright. So far the project only published its initial results, but we can already see that this piece of legislation will most likely not contribute to large-scale use of orphan works by Europe’s Libraries, Museums & Archives.

The main reason for this is that the diligent search requirements established by the directive have been implemented by member states in such a way that the cost of undertaking a diligent search is prohibitive. The study collected over 210 sources, databases, and registers that need be checked in diligent searches in the UK alone. Researchers from Italy found 357 possible databases and registers. Of the 87 identified sources in the Netherlands, 40 were not freely accessible, and 36 of these required personal contact or a physical visit to an institute. Since the legislation requires cultural heritage institutions to be diligent, they need to check each and every source to be covered by the limited exception provided by the directive.

These results illustrate that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix. This is further shown in the actual number of orphan works available through the OHIM Orphan Works Database, which currently only shows 1,435 registered works. More than half of them are in the collection of the Dutch EYE Film Institute (which has worked on rights clearance for these works since at least 2008).

The preliminary results of EnDOW provide evidence that the European Union has failed in this attempt to provide much needed digital access to Europe’s cultural heritage. Given that the Orphan Works Directive does not help with mass digitisation projects, this means that there is a continued need to provide legal mechanisms that allow cultural heritage institutions to make works in their collection available online.

Note: This contribution has been written by Maarten Zeinstra. Maarten is technical advisor to EnDOW. The ideas expressed in this post should not be attributed to EnDOW.

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Amongst the several recipients of the letters were not only Wikimedia Germany and the Wikimedia Foundation, but also the online radio station detektor.fm and the non-profit website “Musical&Co”, which features music-related articles authored by children for children. 

After having received the copyright notice from Reiss-Engelhorn museum, the website “Musical&Co” went dark. It is still offline. In Germany, even a first copyright notice can be very costly. In the case of Musical&Co, Reiss-Engelhorn museum had initially demanded €850 for the use of one picture. The case was settled with a payment of €400. However, this was still too much for the volunteers who run the non-profit website without any substantial funding. In a statement reporting on the case, the volunteers explain their decision to keep the website offline due to fear of further legal troubles:

We are scared. This makes us extremely insecure. As long as it is not clarified that photographs of public domain paintings are actually public domain, we and any other website owner might receive a copyright notice any day. Each contested picture may cost us around €1.000.

The case of Musical&Co is instructive on many different levels. First, it demonstrates the broken system of copyright notices in Germany, which could result in ridiculously high costs even for good-faith first-time infringers. Such expensive copyright notices are particularly repelling when pursued by a publicly-owned and -funded institution such as the Reiss-Engelhorn museum. Currently, it is not even clear how many users of the pictures received copyright notices similar to the one sent to Musical&Co, but the publicly known cases point to more than a dozen.

Second, Musical&Co project illustrates the demand and value of public domain works, especially for private or non-profit users, who depend on public domain or openly licensed works. Thus, generating revenues by rigidly enforcing highly contested copyright claims cannot justify the much greater loss in terms of access and usage rights for the wider public.

Third, at least in the case at hand, nobody gained anything except the lawyers involved. The settlement was not only costly for Musical&Co, but also clearly insufficient to cover the legal costs incurred by the Reiss-Engelhorn museum. In effect, the copyright claims by the museum resulted in everyone being worse off.

Legally, at least one court in Nuremberg has already rejected the museum’s copyright claim. In his decision, the judge criticized the action taken by the museum, noting that permitting copyright protection of mere digital reproductions of a work would then in effect allow for the extension of the term of copyright protection.

The Reiss-Engelhorn museum has published a lengthy press release trying to explain the museum’s conduct and rebut the criticism it’s received. Unsurprisingly, none of the arguments is really convincing. For instance, Reiss-Engelhorn argues that since it is a publicly funded institution, it had the obligation to request at least moderate fees for commercial use cases. But in reality, it has only been the increased visibility of the images in Wikipedia that has led to widespread non-profit and for-profit usage, thereby increasing overall public welfare. Ironically, even the Reiss-Engelhorn museum itself admits that they “don’t earn any money with the copyright notices”. If this is true, then why issue them in the first place, given the shaky legal ground the notices are based upon?

Aside from the specific parties involved in the lawsuit, perhaps the biggest losers are all those who rely on Wikipedia and Wikimedia Commons as trustworthy sources for public domain content. It is high time for the German courts to reject any copyright in simply creating a digital copy of a public domain work. This would also be in line with the overwhelming majority of elected representatives on the European Parliament, who demanded in their evaluation of the EU copyright directive that “once a work is in the public domain, any digitisation of the work which does not constitute a new, transformative work, stays in the public domain.”

At least in the UK, the copyright office has already adopted exactly this line of reasoning in an updated version of its copyright notice.

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Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

This clarification is noteworthy because the UK has for a long time believed that digital reproductions of public domain works may be protected by copyright. Many UK cultural heritage institutions claim copyright on public domain images by making the argument that the standard of originality is lower in the UK than it is in the rest of Europe (pointing to the idea that in the UK the determination of originality is based on a ‘sweat of the brow‘ standard, and as a result the mere effort required in making a digital reproduction of a public domain work justifies a copyright claim over the original reproduction).

With their updated copyright notice the IPO clearly points out that this idea is not supported by the EU copyright framework. As in the rest of Europe copyright in the UK must be based on an author’s own intellectual creation. While the the idea that simply making a digital reproduction of an artwork creates new rights over it has always been absurd, it has had strong attraction among cultural heritage institutions trying to figure out their role in the digital environment. Claiming rights over digitized public domain works provides these institutions with a false sense of being in control over how works should be accessed and used (and might even undermine their very nature as public institutions whose goal is to share creativity and culture).

The new IPO copyright notice validates the principled stance taken by Europeana—which has argued since the very beginning that ‘digitisation of Public Domain content does not create new rights over it‘, and should help Europeana in its efforts to convince additional cultural heritage institutions across Europe to explicitly state the public domain status of digitized public domain works. With more and more institutions subscribing to this view (most prominent among them the Dutch Rijksmuseum), Europeana has transformed itself into the world’s biggest repository of public domain works.

While the IPO’s position supports our conviction that what is in the public domain must stay in the public domain, it is of limited use in countries such as Germany or Spain where institutions can claim exclusive rights over unoriginal reproductions. Remedying this situation requires a further harmonisation of the EU copyright rules—as proposed by the European parliament earlier this summer when it adopted the Reda report.

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