Digitising European Culture: Legal Stasis?

Late twentieth century copyright policy formation has focussed on balancing the needs of industry and consumers – dealing with issues such as excessive free-loading in the form of music piracy, and the cost of enforcement. However copyright is also an important tool of public policy formation as it also frames education,research and access to knowledge. It is also of course one of the primary tools whereby we as a society shape our own cultural memory. (The ability to preserve websites for example for future generations is provided through exceptions to the monopoly right of the rightsholder. We’re in Danger of Losing Our Memories, Lynne Brindley. http://www.guardian.co.uk/technology/2009/jan/25/internet-heritage)

In 2007 EU libraries spent €4.25 billion on content acquisition, and the UK alone spent circa £80 billion on its education sector. Given the large scale of public investment in education, and the central tool it plays in building the knowledge economy, a new 21st century public policy copyright paradigm is required whereby education and research are also recognised as one of the main goals of a modern, technologically enabled copyright regime.

To this end the Commission and the next Parliament should focus on the economic, cultural and educational value of exceptions highlighted by the rapid development of technologies. Areas that need to be addressed are:

1. The overriding of copyright law, and therefore limitations and exceptions, by contract law in the majority of member states.

2. The absence of mandatory exceptions in the Copyright Directive in regards to libraries and the educational sector.

3. The absence of legislation allowing for digitisation of Orphan Works by cultural organisations.

Policy Recommendations

1. Building on the Green Paper "Copyright in the Knowledge Economy", in order to make the most of developments in technology, support the public interest as well as Europe's global competitiveness, the European Commission should focus on the economic, social and cultural importance of exceptions in the next European Parliament.

2. The Database Directive does not allow the over-riding of copyright law by private contract.However copyright law in most EU member states is over-ridden by contract law. The Commission should bring the Copyright Aquis in line with the Database Directive to ensure that the public interest is not undermined by private contract.

3.Legally guaranteed digital preservation, and digital access to this content for educational, scientific and research purposes, should be a pillar of the European Copyright Aquis.

4. Much of the historical material sitting in European libraries is currently not available commercially, compounded by varying levels of "Orphan Works" (copyright works whose rightsholders cannot be located). To prevent a digital "black hole of the 20th century" an exception in copyright law for Orphan Works is required to give cultural sector bodies legal certainty when digitising historical material. Incentives for rightsholders to digitise their works independently, or in collaboration with the cultural sector, is needed to give networked access to the European cultural inheritance.

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