Transcript Presentazione standard di PowerPoint

The Changing Face of
Exclusive Rights
on
Digital Cultural Content
after the 2013 PSI
Directive
3rd LAPSI 2.0 Meeting – 10th October 2014
WHERE?
HOW?
Directive 2013/37/EU amending Directive
2003/98/EC on the re-use of public sector
information (PSI) represents the renewed legal
framework aimed at improving the adoption of open
data practices by European public sector bodies
(PSBs)
It does so by broadening the spectrum of PSBs which
are subject to its rules to include museums, libraries
(including university libraries) and archives → aka
CULTURAL PSBs
PSI (any representation/compilation of acts, facts or
information whatever its medium) held by cultural
PSBs → aka CULTURAL PSI
2
Due to the numerous benefits arising out of the
digitisation of cultural heritage, its publication
online, and its re-use
to all stakeholders involved in the cultural sector, e.g.
- cultural institutions
- creative industries
- European and national aggregators
- SMEs operating in the tourism sector
- tourists
to society at large
- access to culture and knowledge
- new job opportunities and economic growth
- cultural heritage preservation and exploitation
- innovative and inclusive technologies
3
Digital Cultural Heritage (DCH)
• Digitisation means taking analogue content — books,
films, photographs — and converting it into digital
information
• DCH differs substantially from its physical
counterpart thanks to the possibilities enabled:
– by digital processing
– by digital information
• Digitisation entails:
– enhanced access (online accessibility, large-scale
accessibility, interactive accessibility, personalised
accessibility)
– a change in the way that content is used (extraction,
aggregation, reuse)
4
While the joint effect of
digital processing and digital information
is promising,
the lawfulness
of activities relating
to DCH
remains largely uncertain
5
1st step: CREATION of DCH (I)
(born-digital heritage vs digitised heritage)
The directions of cultural heritage digitisation:
1. out-of-copyright works digitisation
no authorisation
WITH authorisation
- by rightholder via direct or open licenses
- by collecting societies (e.g. ECLs)
WITHOUT authorisation
2. in-copyright works digitisation
- via special legislative provisions (e.g. orphan works)
- via copyright exceptions and limitations: e.g. art. 5(2)(c)
Directive 2001/29/EC (InfoSoc Directive) in respect of
specific acts of reproduction made by publicly accessible
libraries, educational establishments or museums, or by
archives, for non-commercial purpose
6
2nd step: ACCESS to DCH
According to a copyright perspective, access may involve the engagement
with a series of restricted activities (communication, making available)
No authorisation to access
In these cases, right clearance is needed
Authorisation under the conditions
set by the IP holder
…unless copyright exceptions and limitations apply
e.g. art. 5(3)(n) InfoSoc Directive
communication or making available for the purpose of research or private study, to
individual members of the public by dedicated terminals on the premises of publicly
accessible libraries, educational establishments or museums, or archives
7
The 2 comes after the 1:
the ancillary right to digitise
In Sep 2014, the CJEU ruled that Article 5(3)(n) of the InfoSoc
Directive, read in conjunction with Article 5(2)(c) of the same
directive, must be interpreted as allowing Member States to grant
– at certain conditions – publicly accessible libraries the right to
digitise the works contained in their collections (C-117/13)
In other words, the ‘right’ to digitise is the pre-requisite to the
‘right’ to communicate/make available to the public in favour of
publicly accessible libraries for their collections…
8
3rd step: REUSE of DCH
In contrast to conventional CH, works are digitised also
to be further used in a different way, including
•
indexes or metadata that enable or facilitate the retrieval of (even incopyright) works → no authorisation required
•
the exploitation of the so-called ‘computational potential’ of DCH
(automated text processing, eg text- and data-mining) → allowed only
under a specific exception or limitation ex art. 5(2)(c) InfoSoc
Directive, eg Norway
•
innovative re-use for digital content products and services → 2013 PSI
Directive
9
In general, the 2013 Directive requires:
- PSBs to ensure the re-use of accessible PSI
(according to the national rules on access)
- PSBs to adopt a presumption in favour of openness
To the extent permitted by:
1. certain bodies of law, such as data protection law
and intellectual property rights (IPRs)
2. contracts or other arrangements between the PSBs
holding the documents and third parties
10
1.
in-copyright cultural PSI
DENIAL to reuse is possible in case of PSI for which
a. third parties hold IPRs, and without the obligation to
indicate the rights holder (Article 4.3 2013/37)
b. employees of PSBs hold IPRs: economic and moral rights
(Rec 12, 26 2013/37)
c.
In these
cases, rights
clearance is
needed
the PSB holds IPRs (‘where the re-use of such documents
is allowed’ Article 3.2 2013/37)
No
authorisation
to reuse
2. out-of-copyright cultural PSI
Authorisation
under the
conditions set
by the IP
holders
When PSI is reusable (according to the decision made by the
PSB), then the institution shall ensure the reuse for noncommercial as well as commercial purposes
but…
11
2. Exclusive arrangements for cultural PSI
Exclusive arrangements are ALLOWED when necessary
for:
a. the provision of a service in the public interest,
provided that:
– the arrangement is transparent and public
– the arrangement is subject to regular review and, in
any event, every 3 years
b. the digitisation of cultural resources, provided that:
– the arrangement is transparent and public
– the exclusivity does not exceed 10 years (if longer,
reviewed during the 11th year and at least every
seven years thereafter)
12
In light of this…
• Cultural PSBs holding copyright or sui generis rights on their PSI can
refuse reuse on the basis of their IPRs
• For out-of-copyright works exclusivity can originate from different
sources rather than IPRs! Exclusive arrangements have the potential
and reality of contracting in or out of public interest values, like A2K
• And even CH regulation can impinge on the use of cultural PSI, like in
Italy
So what?
It’s a matter of choice!
Cultural PSBs should be leaders in the creation of value from the
encounter of cultural heritage and digital technologies…
13
Thank you!
[email protected]
Bocconi University – Department of Legal Studies
ASK Centre – Art, Science and Knowledge
LAPSI 2.0
14