Defending the Digitised Public Domain

The European Commission has published a review of the Europeana digital library (remember that?). There's one critically important section, which touches on the hot issue of digitising public domain content:

Much of the material accessible in digital format through Europeana is in the public domain; this means it is not or no longer covered by copyright and can in principle be accessed and used by all. This material is an important source of re-use by citizens and companies alike and a driver of creativity in the internet age. For this reason, the Commission has underlined the need to keep "public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet".

In practice this is not always the case. While some of the cultural institutions explicitly indicate that the material they bring into Europeana is in the public domain, others claim rights on the digitised copies and/or charge for downloads. A few institutions apply watermarks and, in one case, viewing the material in a reasonable size is subject to payment. The different practices reflect the wide range of approaches across the EU, which are sometimes dictated by increasing pressure on cultural institutions to raise direct income from the assets they hold. Requiring payment for digitised public domain works also reflects the fact that digitisation has a cost. At the same time it seriously limits the cultural and economic potential of the material.

From a legal point of view the question is whether digitisation in itself creates new rights. Normally this would not be the case. However, the level of originality needed for the creation of copyright is not harmonised at European level, so the answer to the question may differ from one Member State to another.8 It may also vary for different types of digitisation (for example the scanning of books is not the same as costly 3D rendering of objects).

The issue of principle is whether it is acceptable to lock up public domain material that has been digitised with public money by public institutions instead of turning it into a pervasive asset for the information society. The latter approach is in line with the Community policy on the re-use of public sector information, as well as the OECD Ministerial Recommendation on Enhanced Access and More Effective Use of Public Sector Information.9 This issue is essential for the functioning of Europeana, since in its conditions of use the site follows the policies of the contributing institutions.

Similar issues arise when public institutions grant exclusive arrangements to private firms for the digitisation and exploitation of their unique public domain assets in exchange for material advantages. Such arrangements risk locking up public domain content, but in some cases they may be the only way to finance digitisation. This dilemma was expressed by the High Level Group on Digital Libraries in its report on public private partnerships for digitisation. The Group recommended that "public domain content in the analogue world should remain in the public domain in the digital environment. If restrictions to users’ access and use are necessary in order to make the digital content available at all, these restrictions should only apply for a time-limited period."

This is a crucially important issue. At the moment, some publishers are trying to create a new copyright in public domain materials just because they have been digitised. This is not only absurd, but threatens to nullify much of the huge potential of turning analogue knowledge into digital form. The European Commission deserves praise for highlighting this danger: now it needs to do something about it by passing legislation that settles the issue once and for all. (Via At last ... the 1709 Copyright Blog.)

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