By Dugie Standeford for Intellectual Property Watch

Problems related to digital preservation, orphan works and out-of-print materials must be resolved if European Commission plans to digitise and make accessible Europe’s cultural heritage are to succeed, copyright experts said in an 18 April report.

The Digital Libraries project is part of a Commission drive to boost jobs and growth by making Europe the most knowledge-based economy in the world by 2010. Information Society and Media Commissioner Viviane Reding formed the High Level Expert Group on Digital Libraries (HLG) last year to help solve online copyright issues. Members of its copyright subgroup, which published the report, include rights owners and libraries.

The HLG report provides “practical solutions” to key issues, the document said. Those solutions rely more on voluntary agreements than on regulatory proposals.

Digital Preservation

Digitisation may be the only way to ensure that cultural material is available in the future, the report said. Some EU countries permit libraries and other institutions to make a single copy of a work for preservation purposes, but that exception to copyright’s exclusive reproduction right “may prove insufficient” as recording media become technologically obsolete and content must be shifted to other formats. Moreover, audiovisual digital material may be shorter-lived than analogue media, the report said.

The HLG recommended that where EU states allow an exception for digital copies, and where copies are made solely for preservation, rights-owners should authorise publicly accessible libraries, educational institutions, museums and archives to make more than one copy if necessary to ensure preservation of the work. Successive copying should be permitted if and when technological developments require it, for preservation only, the report said.

Other recommendations included permitting preservation only for works no longer commercially available in any format; coordinating the various European preservation initiatives at regional and EU level; and allowing copy protection devices in born-digital works deposited in national deposit libraries to be disabled for the libraries’, but not users’, purposes.

Orphan Works

Content whose owners cannot be identified or located, is hampering work on large-scale digitisation, the report said. It concluded “unanimously that a solution to the issue of orphan works is desirable, at least for literary and audiovisual works.”

Non-legislative solutions might include databases dedicated to information on orphan works, embedding better rightsholder data in digital material, and negotiating better contracts between stakeholders. The panel urged the Commission to persuade member states to support contractual arrangements “in a suitable manner, taking into account the role of cultural establishments.”

Solutions may differ nationally, but they must fulfil several core principles, the report said. These include covering all orphan works on the basis of a common definition, providing guidance on how to perform a diligent search for a work’s rights-owners, and allowing for withdrawal of an orphan work if its owner reappears. Member states’ solutions must be interoperable, and must agree to mutual recognition, the report said.

The panel reviewed several legislative proposals for determining when the search for the owner of an orphaned work is diligent. It recommended that potential users of such works be required to “conduct a thorough search in good faith.” It also urged the Commission to take a flexible approach to dealing with requirements for searches for orphan works due to the rapid change in information sources and search techniques. Finally, it said any solution should apply to all kinds of works.

Out-of-Print Content

The report defined out-of-print works as those not commercially available, as declared by the appropriate rights holders. It recommended a four-prong solution that includes a model licence, establishment of a database of such works, a joint clearance centre and a procedure to clear rights.

The licence grants libraries a non-exclusive, non-transferable right to digitise a work and make it available to users in closed networks. It grants rights holders the right to payment which they may waive. An author or publisher retains copyright in the work and its digitised version and can revoke the licence at any time. The licensor may also require libraries to provide information on the use of the work to assess its commercial potential, but must reimburse the library’s costs if it withdraws any part of the material and the withdrawn portion represents more than 10 percent of a title.

The licence was specifically developed to take into account libraries’ needs and publishers’ requirements, said Olav Stokkmo, secretary-general of the International Federation of Reproduction Rights Organisations, a member of the copyright subgroup. It will likely be applicable to other sectors as well, including the audiovisual industry, he said.

Group members considered the model licence the most complicated part of their work, Stokkmo said. Now they hope the Commission, international federations and other associations will publicize it on their websites, so that it can be used as publishers and libraries negotiate digital copy agreements.

The approach favoured by the copyright subgroup “based on widespread agreements between libraries and rights holders looks promising if they manage to make the user interests a priority,” Reding said.

Dugie Standeford may be reached at info@ip-watch.ch.