‘Digitisation and the Law: What is the DDB’s position?’ – A summary
The discussion was chaired by Astrid B. Müller, Head of Communications at the Deutsche Digitale Bibliothek. Taking part were Frank Frischmuth, DDB General Manager, Ellen Euler, Deputy General Manager, Paul Klimpel (lawyer at iRights-law), Gisela Schulte-Dornberg (d:kult) and Ute Schwens (German National Library).
The discussion addressed not only individual cases relating to mass digitisation in Germany but also international approaches to finding solutions, new EU directives on out-of-commerce and orphan works and the advantages of Creative Commons licences with particular reference to the users of the Deutsche Digitale Bibliothek.
The conversation
Then we have the digitisation process itself, by which we mean not only the technical act of transforming analogue material into digital content but also the entire sequence of steps that cultural institutions have to go through to make the content available, thereby preserving the material on the internet. That is what we will be talking about today.
Herr Frischmuth is the General Manager of the Deutsche Digitale Bibliothek and his job is to see to it that the DDB fulfils its mandate, which he will now briefly outline for us.’
Astrid B. Müller: ‘Frau Euler, you are Deputy General Manager of the Deutsche Digitale Bibliothek and sit on a number of committees as an expert in copyright matters. How does the legal framework affect and inform the work of the Deutsche Digitale Bibliothek with regard to the digitisation of cultural material?’
The reasons are primarily legal. Mere possession and/or ownership of a work does not necessarily give the person the right to render it in digital form and put it on the internet. Institutions first have to acquire the digitisation rights. Sorting out the rights is tricky and takes a lot of time. This means that projects involving digitisation en masse can only get off the ground if rights can be managed by third parties in bundled form.
This can happen if we liase with collecting societies, which isn’t always possible. There are a great many works where the identity of the copyright holder, the author, the original creator is not known and cannot be researched. This is the case with writings that are no longer available through the conventional channels. These are the ‘orphan’ and ‘out-of-commerce’ works and they are what are being alluded to when people refer on the internet to the ‘black hole of the 20th century’. Early in the year the EU Directive on Orphan Works made it onto the German statute books along with a ruling on out-of-commerce works. Under certain circumstances it is now possible to digitise orphan and out-of-commerce works and put them online. The ultimate aim is to plug the ‘black hole of the 20th century’.’
Astrid B. Müller: ‘The next question goes to Frau Schwens, Deputy Director General of the German National Library, which can call ten million units of data its own, with 400,000 data sets being added every year in Frankfurt and Leipzig. Regarding the orphan and out-of-commerce works: a new law has been in place since the beginning of this year. Is it helping libraries to make more stuff available, and if so, how and where?’
The ruling for orphan works, which came into effect on 1st January 2014, stipulates that a publication can be digitised as long as a formal and intensive attempt has been made to locate the right-holder and has been unsuccessful. The title is then registered with the German Patent and Trade Mark Office via the collecting society, thereby giving public notice that the title is digitised and that the library is entitled to do so.
Clearly that’s not the best way to search and carry out digitisation on a mass scale, which is why the law covering out-of-commerce works is of much more help to the libraries. It came into effect on 1st April 2014. Here, too, there is still no technical procedure in place, but the idea is to reconcile the data with that of standard book-trade databases such as German Books in Print or assorted e-book portals. After the data we want to digitise have been reconciled, the titles are likewise registered with the German Patent and Trade Mark Office via the collecting society and a licence fee is paid. Then we’re allowed to digitise the titles and can also put them online, if no objection is lodged in the course of the procedure.
If the structures are in place, those are the legal provisions that help us libraries a lot. I should add that the laws do not apply across the board to all the media that we want to have on display in the Deutsche Digitale Bibliothek. At the moment they apply largely to print media but hardly at all to archive content. They have some relevance for the film sector but not for photography.’
Astrid B. Müller: ‘Aside from the libraries, there are the archives, the mediatheques, the departments involved in monument preservation and above all the museums, which feed their metadata into the Deutsche Digitale Bibliothek and have it made accessible for all on a central platform. Museums hold a vast range of objects that they call their own. So let’s now bring in Gisela Schulte-Dornberg from d:kult. d:kult is short for Düsseldorf’s ‘Digitale Kultur- und Kunstarchiv’, one of the thirteen partners of the competence network of the Deutsche Digitale Bibliothek. d:kult is building up a database of collections belonging to the city of Düsseldorf and also has a considerable stock of objects in its own right. How do museums approach the legalities of digitisation? Is the legislation of any use to them?’
That applies not just to artworks but also to museum exhibits, everyday objects and design articles. They, too, are copyrighted and we have to get researching. Some firms have ceased to exist. Sometimes model books were kept; they had handwritten entries and the archives were dispersed when the firm was wound up. It’s almost impossible to ascertain who might be the creator of a particular object. Museums simply don’t have the resources to carry out this kind of research. People who know how costly and time-consuming provenance research is can back me up on this. In a very few cases it’s feasible, but for the vast bulk of objects without a named creator it can’t be done.’
Astrid B. Müller: ‘Herr Klimpel, you’re an experienced lawyer, you advise cultural institutions and have also worked in the public sector. Could you possibly shed some light on the subject? Why is copyright law so complicated? Do we all have to become experts in copyright law before we can post something online?’
In the analogue sphere very few people were concerned with copyright. It was a matter for professionals – publishers, record labels, artists who made a study of how a value is put on a cultural item. Thirty years ago a normal consumer would hardly have been in a position to infringe copyright; how would he have gone about it?
If he borrowed a library book, it was legal; libraries were allowed to lend books. If he photocopied two pages, that was legal too, as the libraries paid library royalties. If he recorded a record on an audiocassette, it was legal, because a fee was paid on that kind of copying equipment, which covered the act of copying. A non-professional was hardly in a position twenty years ago to violate copyright.
In the digital age it’s much harder not to violate because suddenly everything’s a copy and copyright infringements come thick and fast. The state of equilibrium that we had in the analogue age between the interests of the general public and the right of an author to determine what happened with his work has not yet been established in the digital age.
The principle that ‘the author must be consulted each time his work is used’ applies in the digital sphere as well. The cultural institutions are out of their depth and they’re all searching for pragmatic solutions. The collecting societies play an important role here – in other countries of Europe, too – and that role will grow in the future. We’ve still a long way to go, which means that we still have a situation where individual authors have to be consulted every time there is a desire to use a particular work of theirs. And with digital every instance of usage implies a copy of the work, which means that copyright law is relevant every time the work is used.’
Astrid B. Müller: ‘Let’s talk about individual cases, Frau Schulte-Dornberg. What do you tell your museums, if they want to publish something through d:kult? And what do they say to you? What do the museums want to see happen?’
Gisela Schulte-Dornberg: ‘Securing the relevant rights on individual works is what we’re doing at the moment. That means we try to reach an agreement with contemporary artists who are still living. Questions like ‘Can we show the pictures online?’ and ‘Only on our d:kult online portal or in the Deutsche Digitale Bibliothek, too?’ Artists are definitely showing interest.
But if you’re a contemporary artist, it doesn’t necessarily mean you’re still alive, and that’s when it gets tricky. We have to deal with estate executors or the heirs and in some cases we don’t know who owns the rights, which means we have to negotiate with ‘Person or Persons Unknown’. Or objects have been acquired – museums often do this – at auctions or from third parties, or been donated by people who didn’t own the rights themselves. In those cases it’s very hard to find out whom we should be contacting to get hold of a usage right to enable us to show the piece online.
Signing an agreement a year ago with VG Bild-Kunst has been very helpful for d:kult online. It’s been great for us, but the objects have not been cleared for the Deutsche Digitale Bibliothek, which means we can show them on our platform but we don’t pass them on to other sites. And as at the moment we only pass on datasets that include a digitised representation of the actual object, these sites are left out in the cold.
Otto Dix is one such example. We’ve now got the rights to showing his stuff online on d:kult, insofar as it’s been digitised, but unfortunately we can’t pass the stuff on. This is a situation where it would be good to dispense with the case-by-case approach, or it would be a step forward if a relevant agreement were signed with VG Bild-Kunst. By far the best solution, though, would be a change in copyright law itself, so that there were exceptions – a restriction of copyright for the purposes of portals like ours.’
Astrid B. Müller: ‘Frau Euler, what’s the Deutsche Digitale Bibliothek doing? What’s the state of negotiations and what are we doing to support the institutions and to move beyond case-by-case right-hunting?’
Ellen Euler: ‘For some areas there are legal solutions in place, certain freedoms. Institutions, museums are allowed to show certain publicly exhibited works online to help publicise the exhibition. That’s a very limited situation, though, and when the exhibition is over the online advertising has to be deleted immediately. There’s no permanent access.
One solution could be to expand the freedom of memory institutions, to relax this curb on freedom, thus reflecting the needs of the 21st century. But that would require a change in copyright law; we have an EU directive that gives an exhaustive list of freedoms that national legislatures may allow, and a comprehensive catalogue of a given archive, even of the stored works of memory institutions, is not on the list.
So the hands of the national legislatures are tied; they can’t be proactive. There would have to be a change at European level first. But so that we can come up with pragmatic solutions in the here and now, we’ve hooked up with a great partner, VG Bild-Kunst. VG represents the copyrights of creators working in the visual and fine arts and the aim is to help us get permission to put these works on the internet and help the institutions we work with in the same way – both on their own sites and on the pages of the Deutsche Digitale Bibliothek. If the relevant bodies agree to this solution, then next year we should already be plugging the ‘black hole’ as far as fine art and the plastic arts go.’
Astrid B. Müller: ‘Amazing, so pretty much all the museums would then be online, but what’s the story with textual content? What would happen if that was suddenly all available overnight? What effect would that have on libraries, Frau Schwens?’
Ute Schwens: ‘The number of people using libraries, both public libraries and research libraries, is higher than the number of visitors to museums and even higher than people attending football matches. Masses of people use libraries, and what if everything went digital? Wouldn’t we stop needing libraries? No, I don’t think so.
Personally I don’t think we will ever reach a point where we get copyright legislation that gives open online access to everything. There’s still a huge amount of copyrighted material that can be accessed in libraries but not freely on the internet – and I’m glad that restriction is in place.
Secondly, we need the physical library. From the user’s point of view we need the actual place, because there’s a huge demand for a work environment, for a chance to talk on a particular subject and get assistance from other users and from the library staff.
Lastly, we librarians are skilled professionals and we do things with the digital content that we have. We don’t just upload the text wholesale. We evaluate the digitised texts, we can generate metadata automatically, there are ways in which we can put the data out on a network and link it to the information of another institution. In a nutshell: we build a big network of information.
And we’re not alone. Museums and archives are doing the same thing, which brings us to the Deutsche Digitale Bibliothek, the platform via which we can make a network such as ours accessible to the public. There’s a lot of work going on in the institutions, even if it’s only in the form of automated processes – and anyway, these processes have to be developed in the first place.
My parting words would be as follows. What we obviously have to come up with is a programme. We’re always going on about digitising, digitising, but someone has to pay for it all. We haven’t got the programme yet.’
Astrid B. Müller: ‘On the subject of paying for it, I’d like to look beyond Germany for a moment and ask Paul Klimpel, who moves in international circles: How is access being achieved? What solutions have other countries come up with?’
Paul Klimpel: ‘The fundamental problem of reconciling copyright law with the digital revolution is one shared by other countries, too, but there are cases outside Germany and outside Europe where they are much further along the road. Much further along in the process of digitising material on a mass scale.
I’ll just describe what’s going on, without judging. In the USA whole university libraries have been digitised, with all that that implies for research, teaching and work processes in the universities. There’s the famous and controversial Google Books Project and also other projects involving mass digitisation by not-for-profit bodies, where enormous quantities of library material are being digitised.
In Europe there are moves to digitise material. One example that does not involve books is ‘Images for the Future’, a large-scale Dutch programme dedicated to digitising audiovisual heritage. The programme has liaised very closely with lobbyists and especially collecting societies and has found some solutions.
But the most striking example is the programme being followed in Norway, where all library material has been digitised and all books and works printed prior to 2003 have been made accessible online. Only for Norwegians, i.e. only on computers with a Norwegian IP address. That was possible because of an amicable agreement with the collecting societies. Unlike Germany, the Scandinavian countries have an institute for extended collective licences, where collecting societies can come to agreements on certain categories of works and get funds for that and dispense the funds in their turn. And that’s how they came to agree and open the way for this huge amount of library material to be digitised.
So it can be done. At an international level, too, despite the difficulties. Pragmatic solutions like this can be found. Collecting societies are at the core of the debate and are a very important player, and the little things being done in Germany – in the area of out-of-commerce works, for instance, and the relevant legislation – are basically similar strategies aiming to use collective agreements to dispense with the case-by-case process.’
Astrid B. Müller: ‘So we’ve heard a lot about the problems faced by the cultural institutions in the digital sphere. But what can the Deutsche Digitale Bibliothek do for the users? Do users have to become experts in copyright law if they want to look at stuff, Frau Euler?’
Ellen Euler: ‘Users are understandably even less able than memory institutions to sort out copyrights and wrongs. They’re not just interested in locating as much material as they can in the Deutsche Digitale Bibliothek; they also want to know what they can do with the stuff they find. And to give them a measure of legal security, we use the Creative Commons licence model.
Creative Commons licences are everyman licences that allow anyone to make use content in certain ways and free of charge. The users are sure of where they stand legally and are made aware that not all things that are freely available amount to a free lunch. The licences also have the benefit of being readable by machines as well as by the users themselves, which at the end of the day makes it possible to use our programming interface to programme applications automatically, leading to a true mobilisation of culture.
But we still have to come up with more solutions and we’re also working to create as much legal security as possible for the users.’
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