Full report on the 6th Communia Workshop (Barcelona 1-2/10/2009)

Full report of the 6th Communia Workshop: "Memory Institutions and Public Domain" (Barcelona, 1-2 October 2009)

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Please note: All slides, abstracts, and other material produced by the speakers can be downloaded here: http://communia-project.eu/ws06
A shorter version of this report is available here: http://communia-project.eu/node/334

Updated news and reports on the on-going COMMUNIA Working Groups activities are available here: http://communia-project.eu/activities
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The workshop started with a keynote by Prof. Ben White (British Library), emphasizing the fact the we are at a crucial time: norms are currently being decided by uses, governments, and technologies, while libraries have to find a way around such rules. It is important to get digital preservation right financially, technically and legally, otherwise it will be hard to achieve a digital public domain. While there are laws aimed at preserving "analog" material, this is not the case for digital material - with such anomalies in EU legislations: only 7 copies are allowed in Germany, while the most used preservation medium in Italy is photocopy. And at the British Library digitalization started with some home-made scanning of library treasures.

Stepping up from the analog world, libraries are now becoming not just Open Access publishers, but also software developers (ie, creating workflow tools to search, publish and link scientists from different disciplines) and search engines (ie, Europeana, a metadata integrator and a platform to search objects). An example of public-private partnership in this area is Arrow (accessible registries of rights information of orphan works within the European Digital Library), where library records are linked to publishers records through a unique identifier.
Since digitizing creates downstream archiving costs, there are different ways to get money (public funding, sponsorship, proprietary licensing, secondary publishers, public private partnerships...). Partnerships become also necessary in order to use other institutions' skills, for instance to look up the right holders of works to be digitized or to list all the publisher records (ie, British library with newspapers, or Wikipedia and Flickr).

An analysis of over 100 contracts revealed that most of them systematically undermine exceptions and limitations, and preservation right of libraries. It is imperative to follow the lead of countries such as Ireland and Belgium: contract law cannot undermine exceptions to exclusive rights.
In order to make catalogues, it is easier to make multiple copies. But in the UK, museums are not allowed to take photos of their collections. Instead libraries need strong exceptions and limitations to counter-balance term extension and scan, photograph the material to be used in catalogues. Such exception is needed for data-mining and text-mining, which is the digital version of making a photocopy of one chapter and read it: is the viewing of a 3-15 sentences snippet substituable for the purchase of the book?

More in general, an orphan works legislation is necessary to create a constructive dialog with publishers to acquire the appropriate rights from rightholders. It is now time that stakeholders of digitalization propose a positive vision, not a reactive stand, of how people can access digital information online. The debate has been too reactive so far and should instead address in-copyright orphan works and Europeana next steps in terms of copyright law and financing - without alienating the publishers.

The British Library is currently in discussion with Wikimedia Commons following the lead of the Bundesarchiv, and a solution they may find is to put links back to their website to prove where the material is from, and use a social contract rather than a contractual framework such as a Creative Commons license. Along with the economic copyright, there are issues such as moral rights, religious sensitivities and other concerns of libraries who want people to know that those materials come from them.

Dr. Raquel Xalabarder (Universitat Oberta de Catalunya) introduced the first session on "National heritage preservation: legal issues & implications" by recalling that exceptions and limitations need to be checked with regards to new challenges raised by preservation and public access: how should they be designed, are they enough, for which purposes? There are difficult balances with private, contract law, and between public and private interests: how should the law be designed to fit this new role of libraries? During a 2009 June London ALAI meeting, on the occasion of the birthday of the Statute of Anne, it was noted the first copyright statute was meant for the encouragement of learning and creation, with one of the very first exception: 9 copies shall be delivered to the then 9 university libraries which existed in the UK. Without saying that libraires should do whatever they want, there was a balance, a social contract which has since been altered. Shortly, it is hard to be locked up in previous centuries technologies while libraries should be equipped for current challenges and opportunities.

Dr. Milagros del Corral (Director of Biblioteca Nacional de España in Madrid) made a presentation on "Digital libraries and copyright: towards balanced legal certainty in Europe." Copyright has been pretty flexible throughout history in adapting to society evolution, and today both copyright holders and libraries need legal certainty. The WIPO Internet treaties adapted Bern convention to the digital environment and in order to have the 2001 Directive translate it into national legislation, libraries tried to help the EC to find a solution in establishing such exceptions. Unfortunately, this process proved to be too time-consuming, and the EC listed all the exceptions already included in national legislations and allowed member States to choose whatever exceptions they wanted. Hence the emergence of different solutions, none of which offer legal certainty to right holders and libraries entering into the digital economy.

The issue is the adaption of historical exceptions to the digital world. In order to affirm public communication, an extension to online access is needed - but from the point of view of copyright holders. That is, to establish their remuneration, a practical solution to settle limits. Dr. Milagros outlined a sort of European exception aimed at restricting full access to library websites only to cardholders with passwords. To develop a positive agenda is to build upon the copyright 'green paper': the right to public access and the author's rights are both universal rights, and a balance must be found. But for an actual digital preservation, probably there should be no limit for reproductions and technology obliges us to migrate digital objects to maintain the same situation. Due diligence does not work for orphan works, it is too complicated.

Regarding preservation of the digital heritage and Internet archiving, many material would still be protected in the analog world, but they will never get another support than electronic. Finally, while Internet archiving requires periodical updates, at least every 3 months, Dr. Milagros addressed the license issue for the rest of the world: Creative Commons involves material re-using, which may trigger moral rights and authenticity issues.

Dr. Maja Bogataj (Intellectual Property Institute, Ljubljana, Slovenia) gave a presentation entitled "Mandatory collective management for making available in Slovenian Copyright Act. A mistake or an opportunity?" The issue at stake here is the mandatory collective management for both the porting of the Creative Commons licenses as legal lead for Slovenia, and as advisor of the national library. The definition of 'mandatory collective management' is very broad, and in the slovenian law is currently being foreseen for all online communications directed to the public - but this approach is not working. Is it a mistake or a legal tradition? When the new definition of communication to the public was amended, the collective management provision remained the same. Therefore, for a library is simpler to go to some one-shop stop and clear all rights for all Europe - so there is justification for having a mandatory communication policy.

The doctrine was that such stance was not a limitation of the authors' rights as it favored a stronger position to negotiate tariffs. Ficsor would say that this is not compliant with the Bern Convention, but von Lewinsky in her 2004 article entitled "Mandatory Collective Administration of Exclusive Rights – A Case Study On Its Compatibility With International and EC Copyright Law" explains that mandatory management is not a limitation, but it can actually have protective effects. Nobody ever objected to the Slovenian provision, but there is no effective collective organization so far. A transitional provision remains in place until the IP office issues permission to a certain organization or until there is a contract and a tariff system. Finally, should legislators abolish or develop mandatory collective management? There are solutions to extend exceptions and limitations for file-sharing and expanded collective licenses like in Scandinavia. Because of high administrative costs and a lack of transparency, while cross-licensing does not work, the collective management regime must be reformed and address maybe not all authors, all works, all rights, but instead establishing a formality such as an opt-in or an opt-out system.

Dr. Eugènia Serra (General Coordinator of the Library of Catalonia, Barcelona) presented "The Library of Catalonia and public domain." An introduction about the library is done first: its mission, collection and the different digital projects. Currently there are 3 million documents in the National Library of Catalonia, and the specific rights are listed in their metadata. The digitalization has been selective, starting with works in the public domain and works whose rights have been cleared by its holders. The digital object carries rights metadata detailing how people might or might not use the object. According to the Europeana Charter on the Public Domain, public domain should remain so if there are no commercial purposes involved. Users can copy the digital objects but must pay a fee to the library, not as a right but as a policy of the library.

Dr. Serra explained that the Library has a contract to get financial costs of digitalization covered by Google since 2007 for objects in the public domain included in the Library catalog. There is no exclusivity clause, though: the Library, cannot be involved in a project with commercial purpose, but raw material can be given to another digitalization project.

While the Library still needs to find a way to identify public domain works more easily, it started digitalizing books published before the end of the XIX century, then creators who died before 1927. Then "Padica" launched: a project to archive Catalan web-sites and build the digital heritage of Catalonia. They can collect, preserve and disseminate public domain works, but access is provided only within the closed network of the library or to websites of companies and institutions with whom they signed an agremeent. There are already more than 400 agreements, and the project is not seen as a competitor to the Library itself, as it has been designed to show the evolution of the catalan web space. The Library is also developing a tool to research copyright status for the entire Library collection regarding users and librarians.

To summarize Dr. Serra's conclusion, authors should be payed, but memory institutions should be guaranteed the access to culture and knowledge. It is therefore necessary to achieve a balance, along with the need of extended and national licenses maybe under an abiding EU legislation.

The second Workshop session started with Dr. Georg Eckes (Deustches Filminstitute, Frankfurt) who introduced the "EFG, European Film Gateway, A Gateway to Film Heritage in Europe." Many film instituts are represented in the EFG, a project that follows the MIDAS project and whose goal is to build a federated system, a catalog of European films. From local database records to distributed resouces, EFG is building a digital showcase about collections of Europe’s films and cinematheques pointing to the content on other websites as an aggregator. An item can be the biography of a person, news on the press, a poster made for an exhibition, a film, an article.

Very few of such movies are in the public domain because cinema started in 1895: often there are multiple authors, most film archives don’t own the rights, there is a lack of proper rights documentation due to the very archive building (usually due to a film fanatic or based on a private collection without professional documentation at the time), and thus problems with orphan works emerge quite easily.

On the other hand, Dr. Georg Eckes added, archives need to take a stand related to copyright issues and be part of the access agenda that has only recently started to unfold. There is a need for balance between citizen interest to use and reuse and the rightholders' commercial interests. Film archives use taxpayer money for digitalization, even if-when online viewing is not possible. The "Association des cinemathèques européennes" hold a survey on orphan works: at least 50,000 films were found to be orphan works, mostly documentaries created before 1960. However many can't be accessed, and the project next step is not only to store and preserve them but also to provide access to their actual content.

In her presentation "From private to public: strategies and actions developed by SGDAP", Dr. Joan Boadas i Raset (Servei de Gestió Documental, Arxius i Publicacions, SGDAP, Girona, Catalonia) explained that they are providing access to over 1,4 million pages of local e-content including newspapers, video, local information, local heritage, documents from private domain, and research instruments.

Dr. Johan Oomen and Dr. Maarten Brinkerink (Netherlands Institut for Sound and Vision, Hilversum) gave a talk entitled "Images for the Future: Realising Maximum Accessibility to Audiovisual Heritage." While the "Open Images" website offers online access to a very large selection of audiovisual archive material to stimulate creative reuse, "Images for the future" is a project of mass digitalization of video, film, audio and photographs (plus related services). Dr. Oomen pointed out that the importance of such material for future generations was a good argument to get fundings, but the Minister of Economy and Finance is stronger than the Minister of Culture, so they played the economic card, not the cultural one - thus putting value on digitizing material calculated by economists, how much it would cost and how much will return by making such material available. The cost analysis was positive along 30 years, the investment of Euro 173M will be paid back with a potential profit of Euro 19M.

The target group of such projects, the presenters added, are students for classroom use, the public (wider audiences can enjoy it) and creative industries (to develop new productions. Therefore the Institut for Sound and Vision is putting such material on YouTube, collaborating with Europeana, Flickr and interlinked with Wikipedia Netherlands, which is already using the images for many of its articles. They set up an educational platform and museums are also signing for the service, with money collected going to the right holders and covering maintenance expenses. The system is based on an open source media platform, using an open video codec and HTML5 specification to enable video playing in modern browsers without any plug-in. The platform itself encourages others to add material to the already 3,000+ items available, all released under a CC BY-SA license. One of the conclusions of the Institut activities is that public money in digitalization should not only be for preservation tasks, but also for making the material accessible to the public in general.

Dr. Laurence Rassel (Fundació Antoni Tàpies, Barcelona) presentation "From an art history case to free software and free license archive" focused on a web-based platform and database created for research as a working space. They work in collaboration with universities and other cultural institutions, like the Picasso museum, that act both as a user aware of technical ethics and as a contributor when creating this platform and database. Along with free licenses, the Fundació project is based on open/free software, which offers long term sustainability, easiness to be used and shared with other institutions, interoperability. In his conclusion, Dr. Rassel pointed out that also authors should be part of the discussion on how all actors could work together and deal with licensing, rights, open access in this complex system.

Rosa Mª Gregori i Roig and Ramon J. Pujades i Bataller (Arxiu de la Corona d’Aragó, Barcelona) provided the text of their presentation on "The Archive of the Crown of Aragon." Experiences on the open on-line access to the archival fonds. The richest archive in medieval fund covers years 1318 to 2009. An open online access to 4,000,000 documentary images is expected by end of 2009.

The third and last Workshop session on digital preservation, titled "Developing the public domain of the future", was introduced and chaired by Dr. Alice Keefer from the University of Barcelona, recalling Stevan Harnad’s definition opposing short term preservation and long term preservation by journals. While many technical tools are available, strategic policies are implemented only in a few institutions. Preservation starts at the time of creation, and the whole process should start when a document is originally created.

Dr. David Giaretta, coordinator of the CASPAR project at Rutherford
Appleton Laboratory, UK, talked about "Future demands on memory institutions in the digital world." Digital preservation is easy if you have an endless flow of money support: the whole process does not involve just pdf files, but it's also about data, geospatial data, 3D images, and requires expertise about tools, infrastructure, and users practices. You are preserving "for your future self", for reuse by your colleagues, or for future generations - with inevitable drawbacks: they don't pay taxes, they don't vote. Long term perservation must ensure that information can be used independently, because environments change or disappear, as people knowledge changes too. Dr. Giaretta further highlighted that, while format modification is only a minor problem, instead the change in terminology, representation information and configuration is underestimated. There can be interesting recursions representation information in an xml or pdf format, and the copyright information should be preserved in any case, because in 10 years that material could be not longer usable, no matter under what (CC) license it has been originally released. There is a link between preservation and e-science, and a way to evaluate preservation is to have repositories audited and certified, concluded Dr. Giaretta.

Finally, Dr. Victoria Reich gave a presentation titled "Preserving the Public Domain." She is the director of the LOCKSS programme at Stanford, a distributed digital preservation system to preserve any content available on the web. As mentioned by the previous speaker, the change of format is a nano-problem within the preservation system. The current LOCKSS network includes 400+ publishers, while in a private LOCKSS network communities share responsabilities: «You preserve my content, I take care of yours». Dr. Reich explained that publishers have to give libraries formal permission to preserve their works - because of the DMCA, Stanford has to require that, or they could be held responsible. So either they give such permission or use a CC license, which is the solution LOCKSS prefers, because when technology changes, they can move content in another format or archive. In the LOCKSS programme, each library gets a copy of the content and they keep it in their LOCKSS box, which are digital stacks, while in the paper world, they were getting content replicated across many libraries: as there were many books, it was impossible to lose all copies. Here, when one copy gets corrupted, replicated copies are being compared to make sure bits are preserved at the same level. If a journal goes offline, the content is still in the LOCKSS box, but the key reason that content goes away is that people are making mistakes - concluded Dr. Reich.