Should Digital Public Works Be Exclusive?

According to The New York Times, the European Commission look likely to respond to the pressure to limit the amount of time private companies can exercise exclusive use of digitized materials from the public domain.

Having already digitised millions of works, Google remains the biggest benefactor of the current situation. Google and others can restrict access to the works and yet also benefit themselves through the works remaining commercial exclusive to them. The move to reduce the exclusive period from the current 15 years to 7 would enable the public to benefit better from what is ‘public domain’ works. The advocates of the current move wish to see increased access for not-for-profit organizations such as Europeana, which is an online digital service supporting European arts and culture funded by the EU.

As more national treasures and public domain works get digitised it makes sense to get these into the public domain and not restrict them to one digital owner. Google and others may have paid huge sums to digitise the works but they came from libraries who had paid for the original books out of public funds. Some would suggest that what is public should remain public and philanthropy in this case should come before profit.

3 Million European Orphan Works and Counting!

The major digital issue, with the still to be resolved Google Book Settlement, is Orphan Works. These are works that are still in copyright but where the rights owner can’t be traced, or fully determined and many believe is a goldmine of works that can’t be legally digitised today. Different countries have different rules over length of copyright and the criteria under which they get impacted. Some claim the number of titles impacted is relatively small and that there is little value in them, other would suggest the opposite. Now a review involving responses from 22 cultural institutions and published by the European Commission claims, that not only books are affected but that there is a significant high percentage of orphan works among photographs and audiovisual collections and the numbers are high.

Google is not the only one looking at orphans and Europeana, which plays a key role in making Europe’s digital resources available online has called on the European Commission to establish a rights clearance system. Our own view is that it’s somewhat hypocritical for a rights industry that calls foul on infringement not to have even the bacsics of a rights registry today. After all,how can an industry be taken seriously when it doesn’t even cover the basics?

The new report claims on orphan books, a‘conservative estimate’ of 3 million orphan books (13 % of the total number of in-copyright books). The British Library in their report claimed that orphan works represent over 40% of all in-copyright material.

The older the books the higher the percentage of orphan works. ‘Vast numbers of items in the collections of the consulted cultural institutions have uncertain copyright status. Even when institutions are intentionally focusing their digitisation efforts on what they believe is public domain material, a lot of effort to establish the exact copyright status is required. Only material from as far as pre-1870 may relatively safely be assumed to be in the public domain, but it turns out that the oldest book still in copyright in the UK dates back to 1859.’

The issue is not confined to books. Film archives from across Europe categorized after a search for right holders claimed 129 000 film works are orphan and works that can be presumed to be orphan without actually searching for the right holders augments the figure to approximately 225 000. In the UK 95 % of newspapers from before 1912 are orphan and a survey amongst museums in the UK also found that the rights holders of 17 million photographs (that is 90% of the total collections of photographs of the museums) could not be traced.

The Accessible Registries of Rights Information and Orphan Works, ( ARROW project) aims to make the procedure for managing and identifying rights ownership more efficient and has been working to connect the databases of national libraries, publishers and rights organisations across Europe and although there is must noise and initial activity much has to be done for it to even effectively scratch the surface of the issue.

What the European exercise shows us is that the issue is not small, is not going away ,covers different media sectors and that there is no silver digital bullet. Everyone wants these works to be made available within the digital world but it is not a simple case of emulating Google’s attempted land grab of orphans, but about setting up a registrar that is available to all and that the commercial interests of the rights owners are protected from commercial abuse.

Europeana Stutters into Life

Europeana, the European digital cultural database launched this month was immediately swamped and brought down by the demand on the service. The service now plans to be back ‘bigger and better’ by mid-December.

Europeana contains 2 million digitised books, audio and film material, photos, paintings, maps, manuscripts, newspapers and archival documents from more than 1,000 European cultural organisations such as that British Library. It plans to have over 10 million items in its database by 2010.

The main driver of the service according to a European Commission spokes person is to, ‘help save orphan books from oblivion...Forty per cent of the British Library is orphan - it’s not just a small phenomenon. There is a twentieth century cultural black hole as there is a huge amount copyrighted and orphan books. The question is what can one do about these out of print works? We may lose them from the cultural heritage.”

So we have a ‘cultural’ land grab by the establishment of Europe. We can’t help but say that appears no different than libraries sharing material today and lending this to users. As long as it stays within a ‘fair use’ remit and is not commercially exploited then this is different to the commercial land grab by Google and the US Orphan Act which are about legitimising the commercial adoption of orphans.

The question is whether others will see it the same or as legitimising the Great Book Robbery being performed by Google.