Barriers to access: legislation and practice in Europe and beyond

Ariadna Matas

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At Europeana, we encourage cultural heritage institutions to embrace open access practices as much as possible. Allowing digital cultural heritage not only to be seen, but also to be used and shared, can make a more meaningful contribution to society, and is in line with cultural heritage institutions’ public interest mission. Apart from the very obvious benefits of open access for researchers and educators, among others, these practices have led to better connections with local communities, to improvements to the content, notable increase in access to records following the sharing of data outside of the institutional portal.

Europeana works with archives, libraries, museums, and other cultural heritage institutions. Their collections and fonds often have a very different nature, and are managed in very different ways, not to mention the diversity in approaches and priorities that exist from one country or region to another. It remains their decision to identify what is most relevant to be shared with the public through Europeana, and to consider ethical and legal questions that might stand in the way, but all in all we consider that “openGLAM makes good business sense”, as Dafydd Tudur said in a recent webinar.

How does Europeana contribute to these principles?

Among other things, Europeana sets standards to be able to deliver its mission and to support the digital transformation of the cultural heritage sector. Through our Data Model, for instance, we streamline the very diverse policies and approaches to data management from across types of institutions submitting data to Europeana, to then be able to provide structured and clear information through a single online portal. We also use these standards to encourage the adoption of open practices. A condition to share data with Europeana is to accept that all metadata in is marked with the Creative Commons Universal Public Domain Dedication (all rights are waived, worldwide), and that all digital objects are assigned a rights statement to inform users about the extent to which the item can be used. In addition, one of the criteria to consider digital objects as “high quality” is their level of openness. These will be promoted and showcased more broadly on and beyond.

Europeana has also clearly indicated its position against the practice by some institutions of claiming rights on the digital reproduction of works that are in the public domain. In the words of Douglas McCarthy and Andrea Wallace, this practice “holds back creativity, innovation and knowledge generation around the public domain artworks stewarded by cultural institutions”. European legislators also took a stance to address this issue through one of the provisions in the Copyright in the Digital Single Market Directive, which is currently being imple-mented by European Union member states. It mandates, roughly, that digital reproductions of works of visual arts in the public domain should remain in the public domain (unless the reproduction is a new original work of art in itself, separate from the record that is subject to digitisation).

Is it enough to be willing to open up?

Institutional policies are not the only thing that stands in the way of an institution’s collection and reuse. Archivists need to weigh concerns related to privacy or personal image protection, or even ethical considerations. A perhaps even bigger challenge are unbalanced copyright laws, which combined with a lack of copyright knowledge and of adequate institutional policies, make it difficult to clear the necessary rights, or make the necessary decisions, to make content available online. Indeed, some copyright laws are designed in a way that ignores the nature of archival fonds. Authors are often unknown, and permission cannot realistically be obtained. Determining that something is in the public domain can also be extremely complicated given the long (and expanded) duration of copyright protection terms, the existence of neighbouring rights or sui generis rights and the (automatic or not) transfer of rights that may occur in the life of a work. This has created many orphan works, and led to the so-called twentieth century blackhole. In addition, while research, education, creation or long-life learning happens across-borders, copyright laws tend to stop where their juris-diction ends. This raises many challenges in the digital age, and professionals sometimes need to choose between fulfilling legal requirements or complying with the institu-tion’s public interest mission.

How do we overcome these challenges?

The difficulty in using content across borders is one that we cannot overcome in isolation, and it is one that has a negative impact on archival institutions as much as on other areas of the cultural heritage sector. This and other common challenges have brought representatives of the archive, library and museum sector, to advocate internationally in favour of up to date exceptions and limitations to copyright. European decision-makers have also made steps towards solving these issues. At first, the orphan works directive introduced an exception to copyright that all member states needed to adopt, but its limited scope and extensive requirements have rendered it almost unusable. The more recent Copyright in the Digital Single Market Directive, however, holds some more promises, particularly around works that are out of commerce.

When it comes to institutional practices, with more and more practitioners actively engaging in conversations through the OpenGLAM movement (check their Twitter account takeovers, they are great!), and more institutions leading with example, there are less doubts about the positive impact of such practices, and less fear of loss of control, or of revenue (which sometimes remain to be proved).

Part of Europeana’s mission in the coming years, as described in the 2020-2025 strategy and in line with the direction already taken in the past, will be to “make it easier for people to use cultural heritage for education, research, creation and recreation”. To achieve this, we will keep collaborating and cooperating, in order for our work to contribute to “an open, knowledgeable and creative society”.

Ariadna Matas, Policy Advisor Europeana Foundation