Memorandum of Understanding on Digitisation of Out-of-Commerce Works: View of Libraries

Benjamin White, Head of Intellectual Property

British Library

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e Journals

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“The heritage of European libraries is one of a richness and diversity without equal. It

expresses the universality of a continent that throughout its history, has engaged in

dialogue with the rest of the world. And yet, if not digitised and made accessible online, this

heritage could, tomorrow, not occupy its rightful place in the future geography of

knowledge.”

2005

i2010 Digital Libraries

High Level Expert Groups

Digital Agenda

Comité des Sages – New Renaissance 2011

Orphan Works Directive 2012

Memorandum of Understanding on Digitisation of Out-of-

Commerce Works

or

how cultural and educational establishments could potentially avoid item by item clearance of works and diligent search for

orphan works

The Protagonists

• Authors

• Visual Artists

• Book and Journal Publishers

• Libraries

• Collecting Societies (CMOs) – varying roles in Member States dependent on history, legislative function etc.

MOU

The scope:

• Published Books and Journals• Country of first publication• Digitised and made available by publicly accessible cultural and

educational institutions • The items have to be out of commerce / out of print

Collective licensing without prejudice to individual agreements

MOU

The assumptions made regarding mass digitised published content:

• Mass digitisation is culturally, educationally and economically desirable

• Item by item diligent search very expensive and time consuming

• Members of Collecting Societies’ works will be digitised• Non-members works (“Outsiders”) will also be digitised

Costs of Digitisation of 1 Book of 200 pages …

Costs are €60 to digitise and preserve for a period of time.

Manual diligent search based on the BL / ARROW study of 4 hours per book is €112

Whereas:

• Recommending the Agreement covers embedded images in literary works

• Recommending embedded images dealt within the same Agreement as the literary work in which they are contained by the collective management organisation for visual works or the collective management organisation which is mandated to represent visual works

MOU

Whereas:

• Recognising legislation might be required to create a legal basis to ensure that publicly accessible cultural institutions and CMO’s benefit from legal certainty when, under an applicable presumption, the CMOs represent rightholders that have not transferred the management of their rights to them.

• Recommending that MS, in keeping their international obligations, may give effect to the key principles mentioned below in accordance with their national legal mechanisms and collective licensing traditions.

MOU

Whereas:

• Calling on the European Commission, to the extent required to ensure legal certainty in a cross-border context, to

consider the type of legislation to be enacted to ensure that publicly accessible cultural institutions and CMOs which

enter into a licence in good faith applying these key principles are legally protected with regard to licensed uses

of works of rightholders who have been presumed to be within the scope of the licence.

MOU

Principle No. 1 – Voluntary Agreements on Out-of-Commerce works

1. Negotiated on a voluntary basis amongst all relevant parties including authors and publishers.

2. Parties define the scope of the Agreement and applicable remuneration for rightholders, defined by mutual consent.

3. Contracting parties agree on the type and number of works covered by the Agreement and on the fact that these works are out of commerce.

4. Determination by parties whether a work is out of commerce or not shall be conducted according to the customary practices in the country of first publication of the work.

MOU

6. The author's right to object to other derogatory action in relation to the said work, which would be prejudicial to his

honour or reputation, shall also be safeguarded.

MOU

Principle No. 2 – Practical Implementation of Collective Agreements

1. Licences will only be granted by CMOs in which a substantial number of authors and publishers affected by the Agreement

are members, and appropriately represented in the key decision making bodies.

2. Each digital library project widely publicised so all stakeholders whose rights and interests might be affected can

decide whether or not to participate in the project in full knowledge of its scope; and communication to rightholders

shall be made sufficiently in advance of any scanning or use.

3. If the Agreement includes translations, a specific procedure should be undertaken in order to reach the rightholders in

translated works.

4. Recommended represented rightholders are notified individually by rightholders organisations and CMOs.

5. Where a rightholder whose work was first published in a particular MS has not transferred the management of his

rights to a CMO, the CMO which manages rights of the same category in that MS of first publication shall be

presumed to manage the rights in respect of such work.

6. In order to benefit from this presumption the CMO organisation shall make its best efforts to alert rightholders

in question in accordance with information procedure methods agreed upon with organisations representing

rightholders in the country where the CMO is based. The rightholder organisations will commit to assist the CMO in

the work to alert authors and publishers.

Principle No. 3 – Cross Border Access to Digital Libraries

1. If the scope of an Agreement entered into pursuant to Principle No. 1(2) and No. 1(3) includes cross-border and/or commercial uses, the collective management organisation may limit its licence of works that are out-of-commerce to those of represented rightholders.

2. Where a licence between a collective management organisation and a publicly accessible cultural institution implementing an Agreement which includes in its scope cross-border and/or commercial uses, should rely on the presumption referred to in Principle No. 2(4), a specific procedure should be considered in order to reach the rightholders who are presumed to be represented and whose works are used frequently or intensively. It shall be a matter to be agreed between the parties concerned to decide if and when to set specific procedures and to define the relevant parameters and arrangements.

Commission Recommendation on the digitisation and online accessibility of cultural material and digital preservation. 27/10/2011.

• The cost of digitising the whole of Europe’s cultural heritage is high and cannot be covered by public funding alone.

• Private sector sponsoring of digitisation or partnerships between the public and private sectors can involve private entities in digitisation efforts and should be further encouraged.

• For the large scale digitisation of out-of-commerce works, legislative backing for licensing solutions voluntarily developed by stakeholders may be needed in the MS, taking into account the need to ensure a cross-border effect.

• In this context, the approach followed in the stakeholders’ dialogue, sponsored by the Commission, on out-of-commerce books and learned journals which resulted in a MoU signed in should be seen as a model for further dialogues to facilitate agreements for the digitisation of as much of the out-of commerce material as possible. Rights information databases connected at European level can bring down transaction costs for rights clearance. Such mechanisms should therefore be encouraged in close cooperation with all stakeholders.

Follow-up to this Recommendation

Inform the Commission 24 months from the publication of this Recommendation in the Official Journal of the European Union, and every two years thereafter, of action taken in

response to this Recommendation.

Loose ends from the Library Perspective

• The MoU must be underpinned by national legislation

• How many CMOs have the rights for communication to the public?

• Cross-border availability – the need for EU legislation

• Regulation on EU level of CMOs – Good governance

• If MS does not follow the Recommendation – EU legislation?

• What about publishers and other companies being able to enjoy these provisions?

ben.white@bl.uk

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