C OPYRIGHT C HALLENGES IN R ESEARCH 22/04/15 Atelier Multimédia, EUI 1.

COPYRIGHT CHALLENGES IN RESEARCH

22/04/15Atelier Multimédia, EUI

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I. General: Copyright challenges in research• Overview of basic copyright concepts / Focus on access and

use of material from libraries, archives, museums and the web • Different national copyright rules as sources of confusion –

EU v. national level • Exceptions benefiting research • Situation in Italy

II. Use of images from archival research (Wed/day 29/04)

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Two sessions.

• Groups affected: researchers, archivists, librarians, artists, museum curators

• 2014 Consultation on the Review of the EU Copyright rules: classification of interest groups:

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Timing and relevance: Why Copyright?

End users/Consumers

Institutional Users

Authors/performers and CMOs (Collective Management Organizations)

Publishers/producers/broadcasters

Intermediaries/distributors/other service providers

• Commission Consultation on the review of EU Copyright rules

• Unique collaboration of public and private sector • Mass Digitization efforts: e.g. Europeana, museums,

HathiTrust, DPLA, Google, DPLA, older such as the Internet Archive or Project Gutenberg

• Local digitization efforts with double target: preservation and access (e.g. stories at the Public History conference – from Florence and Venice, to Ukraine)

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Timing and relevance: Policy Initiatives.

• US:

Authors Guild v. HathiTrust (2012 /June 2014, decided on appeal)

Authors Guid v. Google (ongoing)

Cambridge University Press et al. v. Patton et al. (Georgia State University case, ongoing)• EU:

Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG (Sept. 2014, decided)

Dutch Court’s preliminary reference (also Sept. 2014)

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Timing and relevance: Case-law developments.

1. Two categories of works 3 categories adding a grey zone (orphans, out-of-print)

2. Why the arrow representation? What is the default?

3. Legal status dictates accessibility. Rules (term of protection) and practical consequences (free v. licenced use)

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Basic Copyright Concepts.

Public DomainGrey zone

Copyrighted material/wor

ks

• Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society

• Directive 2012/28/EU on the digitization and online display of orphan works (‘certain permitted uses) & the creation of online EU-wide database for orphan works

• [other acquis: http://ec.europa.eu/internal_market/copyright/acquis/index_en.htm ]

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Relevant EU Directives and Regulations.

• Within the EU: Copyright is territorial = rights are enforced on a country by country basis under national law

• The dissemination of copyright-protected content on the Internet (e.g. by an online e-book seller) requires, in principle an authorisation for each national territory in which the content is communicated to the public.

• Right-holders can authorise multi-territorial or pan-European licenses.

• EU-level steps to facilitate multi-territorial licenses• EU-level discussions about harmonisation prospects

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Lack of harmonization as the basic source of confusion.

• ‘Limitations and exceptions’ to copyright enable the use of protected material/works, without obtaining authorization from the right-holders,

- for certain purposes & - to a certain extent

e.g. the use for illustration purposes of an extract from a novel by a teacher in a literature class • US ‘equivalent’ concept: fair use (more flexible) - Differences • European Legal framework: Berne Convention: 3 steps – test EU Directive 2001/29/EC (InfoSoc directive): art. 5

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Exceptions benefiting research.

• Art. 9(2) Berne Convention for the protection of literary and artistic works (1967)

• It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works (1.) in certain special cases, (2.) provided that such reproduction does not conflict with a normal exploitation of the work and (3.) does not unreasonably prejudice the legitimate interests of the author.

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The three steps test.

- photocopies/ preservation

- private use - Publicly accessible

institutions (libraries, educational establishments, museums, archives)

- Ephemeral recordings/internal use

- Social institutions (hospitals, prisons)

- Only teaching/scientific research purpose

- Disabilities

- Press- Lawful quotations - Public security/administration- Political speeches - Religious celebrations- Publicly displayed

art/architecture- Parody-

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Article 5 Directive 2001/29/EC.

• Art. 5 exhaustive and non-mandatory list• Criticism!• Italian law has not implemented the optional exception of

art.5(2)(c) thus Italian institutions are not allowed to reproduce copies for preservation – only public domain ones

• Problematic situation, as seen by the Italian responses to the Commission consultation:

“The vast majority of institutional users report that they have experienced problems when trying to use an exception to preserve and archive specific works in their collections. Respondents consider that both the scope of this exception and the way Member States have implemented it cause problems.”• 12

Problems with the exceptions not being mandatory for m-s.

• Common problems? (examples)

- Photographing archival material or artwork to use at Ph.D. or for a publication (access/ further use)/ Public domain status v. ownership of the photo or the material

- Distribution in classes/seminars- Scanning in libraries/archives- Creating catalogues for museum

exhibitions- Other legal considerations (eg.

privacy, confidentiality)

• Copyright of own work

- Copyright is automatic, - Own choice of licenses- Contracts with publishers- Creative Commons - University depositories- Open Access (=/= public domain)

- [More issues?]

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Your experiences.

• Open Access week (October 2015) • Code of best practices for Italian cultural institutions?

(archives, museums, libraries..) • The rich cultural heritage of Italy makes its separate voice on

the issue particularly important

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Long term purpose of this project.

Thank you for your attention and your interest

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Argyri Panezi, Ph.D. Candidate | [email protected]

European University Institute, Florence, Italy

Department of Law