Towards a notice-and-take-down approach for cultural heritage institutions

Intervention at a round table discussion on the impact of the EU orphan works legislation held at the final conference of the EnDOW project at the EU Intellectual Property Office (EUIPO) in Alicante:

We have just heard presentations from a bunch of fine legal and technical minds that have told us that the thing [the EnDOW diligent search tool], that they have build with substantial amounts of taxpayer euros does not really serve a useful purpose, because it is based on legislation that has been designed to make its stated purpose as difficult as possible. That is a pretty stunning revelation.

So let’s take a step back and examine how we have gotten here?

Copyright overprotects (for the vast majority of works it lasts too long) and it is caught in a straightjacket tailored on 19th technological reality of the 19th century).

For the vast majority of creations of the mind, the type of protection that copyright offers does not make sense. The protection is either much too long (almost all copyrighted works are not commercially exploited for longer than two years after their creation) or not relevant at all (a lot of works are created in contexts where the creators do not desire to restrict their availability to others).

Still we grant the same level of copyright protection to these works as we do to the small minority of works that are commercially successful for extended periods of time (sometimes even well beyond the duration of copyright protection) and for which their creators (or intermediaries tasked to do so by them) want to control their availability.

In the field of copyright have modelled the law after the exception to the rule that most creations of the mind are not created with economical motives in mind and that most of those who are, only see relatively short periods of commercial exploitation.

Even worse we have locked ourselves into this approach by concluding numerous international agreements that limit our abilities to change this. The prohibition of formalities and the minimum term of protection codified in the 1886 the Berne Convention¹ made sense in an environment where information travelled slowly and it was impossible meaningfully to track the use of works across borders.

But they does not make any sense anymore in an age where we communicate instantaneously via global networks and where billions of people create and share unprecedented amounts of works on a daily basis.

This clash between the legal system we have build to protect creators and enable them to make a living of their creativity and the reality of the networked information society is causing all kinds of problems (it would be tempting to reflect on the the question how this contributes to the creation of an information economy that seems to favour monopoly intermediaries, but that is out of scope for this event). For today the most interesting set of problems are the problems that are faced by our cultural heritage institutions.

Europe’s cultural heritage institutions hold large collections of works that are still covered by copyright but that are not actively exploited by their rightsholders. This concern books and other written matter, maps, posters, drawings, photos, paintings and many other objects that have found their way into the collections of our archives, libraries and museums. Some of them have never been intended for commercial exploitation and some of them were not even intended as artistic creations.

Orphan works (works for which it is impossible to identify or locate any rightsholders) constitute only a tiny proportion of them. At the same time these orphan works are the clearest illustration of the shortcomings of the EU copyright system as they point to a hard to dispute failure of the system: Before the OW directive it was simply impossible to make these available online without violating the law

So somewhere in the second half of the 2010’s EU policymakers acknowledged this problem and started working on a legislative solution, which became the OW directive that we have heard so much about this morning. This was a noteworthy step for at least two reasons: it constituted the first legislative intervention into substantive copyright law since the 2001 InfoSoc directive and it resulted in the 2nd mandatory copyright exception of the EU copyright framework.

As a result of this (and in spite of the fact that it was clear from the start that the overall impact of making orphan works available online would be rather minimal) the discussion about the OW directive quickly turned into an ideological battle ground between the intended beneficiaries in the cultural heritage community and rightsholder representatives. The latter perceived the possibility of a new exception that would allow cultural heritage institutions to make use of orphan works as a threat to their interests and where intent to limit the scope of the the OW exception. As we know they have been largely successful in their efforts. As a result of their efforts to cripple the directive it now hinges on a diligent search requirement that is so comprehensive that the whole directive in its adopted form is “unsuitable for its intended purpose” (as observed by Paul Maier [the Director of the EU observatory on infringement of IP rights, which hosts the OW database] in this morning’s opening remarks).

The main lesson to be learned from the debacle of the OW directive is that it seems impossible to solve the copyright problems faced by cultural heritage institutions through dynamics that put cultural heritage institutions and rightsholders into opposition.

To get this right we will need to work together with rightsholders on developing solutions that meet the needs of all stakeholders and reflect that fact that the there are two different spheres of circulation of cultural goods, that are separate but also dependent on each other:

There is a sphere of primary exploitation of works in which rightsholders need to be able to exercise their exclusive rights without interference from the activities of cultural heritage institutions.

But there is also a second sphere of circulation in which cultural heritage institutions must be enabled to provide access to our collective memory as contained in those works that are no longer circulating in the first sphere.

It is important to realise that spheres are not mutually exclusive, but rather depend on each other to for cultural production to flourish. This means that it must be possible to craft legal arrangements that allow both spheres to function. Right now this is not the case.

Our cultural heritage institutions deserve better (copyright rules)

This is not an academic concern but something that has become a disturbing reality for cultural heritage institutions. Let me illustrate this with a few examples:

1. As part of the previously mentioned Images for the Future project (which received €112M in public funding with the aim to digitise and make available the audiovisual memory of the Netherlands) the project partners have digitised 2.4M photos of which only 26% are available online for the public. Even more striking, of the 138,932 hours of digitised film and video material only 2% are publicly available online. That is a pretty disappointing result and copyright has been an important contributing factor.

2. Within the cultural heritage collections that are made available via Europeana we have observed a 20th century black hole. There are very few works from the second half of the 20th century available via Europeana. This is almost certainly a result of the legal uncertainty created by the copyright framework. (Also worth noting: there is still not a single record in Europeana that belongs to a work that has been identified as an orphan work.)

3. In the Netherlands we see a wave of attempts by photographers to shake down cultural heritage institutions for accidentally making copies of their works available online. In a recent case a photographer successfully litigated damages of €75 per image from an Archive that had made scans of old postcards available online, even though these had been published anonymously and there was no possibility for the archive (other than being sued after publication) to ascertain the copyright status of these postcards. In the aftermath of this ruling (which is currently being appealed by the archive) he has now send out letters to multiple archives demanding a total of about €100,000 for the online publication of the about 1000 photos that he claims to own. Not surprisingly this has lead to the mass removal of photographs with unclear ownership by archives across the Netherlands.

Towards a notice-and-take-down system for cultural heritage institutions?

If we want to provide cultural heritage institutions with a legal framework that supports the im their mission to make Europe’s rich cultural heritage available online and allows them to become cornerstones of a European public online space then we can learn one thing from the failings of the Orphan Works directive: We need to make it easy for them to comply with the legal framework and we need to provide them with tools that allow them to respect the rights of authors and other rightsholders.

This morning’s discussion has clearly illustrated how wasteful and inefficient the diligent search process is. It is even more remarkable that we have saddened up our cultural heritage institutions with this process while we are affording commercial internet intermediaries with a much more straightforward way of dealing with uncertainties created by copyright.

Right now (and lets ignore for a now that this system is under attack as part of the discussions about the DSM directive²) intermediaries do not have to ascertain the copyright status of works uploaded by their users as long as they take them down when they are notified that the availability of specific works on their services constitutes a copyright infringement. This notice and take down system has allowed commercial platforms to flourish, while public cultural heritage institutions have to invest substantial ressources into rights clearing.

If I wanted to upload a work from the collection a cultural heritage institution that is likely an orphan work to a commercial hosting platform such as Flickr I could so so without carrying out a diligent search first and without any legal risk for Flickr. If it turns out not to be an orphan work and the rights holder was opposed to its availability on Flickr they could notify Flickr and the work would be taken down.

While we have this relatively frictionless system that allows hosting providers deal with some of the legal uncertainties created by copyright, we have no such system for cultural heritage institutions. This is a rather absurd since the fact that these institutions do good work and that the increased online availability of cultural heritage collections is beneficial, is one of the the very few things that stakeholders and policymakers from across the spectrum can agree on.

What could a comprehensive solution for cultural heritage institutions look like?

Fortunately the building blocks for such a system are largely in place. As all of you are aware we are in the middle of the discussions about the Copyright in the Digital Single Market directive proposal that includes in articles 7-9 provisions aimed at enabling cultural heritage institutions to make available online out of commerce works contained in their collections. The category of out of commerce works is a much wider one than the category of orphan works but it logically includes orphan works within its definition.

In article 7-9 of the DSM proposal the Commission has proposed provisions that would require member states to allow extended collective licensing arrangements for out of commerce works contained in the collections of cultural heritage institutions. While the exact approach proposed by the Commission is not without its problems (it still requires a number of burdensome search efforts before licenses can be obtained) it is the first building block for a comprehensive solution. In certain sectors (those with strong representative collective management organisations, such as literary works or photography) extended collective licensing would allow cultural heritage institutions to more easily clear the rights for collections that they want to make available online.

But ECL alone will not solve this problem as we do not currently have representative collective management organisations that can issue licenses for all types of works³. The situation greatly varies across member states but there is a clear need for a fallback mechanism that can apply in situations where licensing is not an option because the structural conditions to issue licenses are not in place (an example are amateur AV works).

A fallback mechanism in the form of a mandatory exception would allow cultural institutions to make available such works as well. At this stage it is unclear if such a an exception will be included in te final directive (the text currently discussed in the parliament contains a fall back exception, the text discussed in the council does not). From the point of view of cultural heritage institutions such a fall back exception would constitute the 2nd building block of a comprehensive solution.

The third element of such a solution (and this is where the similarities with the notice and take down approach come into play) would be a strong opt-out mechanism that easily allows rights holders to object to the use of their works either under the extended collective licensing mechanism or under the fall-back exception (including for a period of time before the making available online).

If we are serious in our efforts to ensure that the interests of right holders are protected this last element is extremely important. The process for registering opt-outs and to adhere to them must be simple and straightforward. This is also provides a great opportunity for the EUIPO to develop a registration system that provides real value to the cultural heritage institutions and creators alike.

While the comprehensive solution that cultural heritage institutions advocate for would likely supersede the orphan work directive this is one element of the exiting directive where the experience obtained in its implementation can be extremely useful.

To conclude, we need a much simpler system if we want to enable Europe’s cultural heritage institutions to flourish online. A system that is relies on extended collective licensing wherever possible, provides a fallback in the form of an exception and allows authors and other rightsholders to easily opt-out. Lets apply the lessons we have learned from the Orphan Works directive to make such a system happen now!

Thank you for your attention!