Re-use of public sector information in cultural heritage institutions

Author:Paul Keller - Thomas Margoni - Katarzyna Rybickab - Alek Tarkowskic
Position:Kennisland.nl - Institute for Information Law (IViR) - Institute for Information Law (IViR), Centrum Cyfrowe Projekt: Polska - Centrum Cyfrowe Projekt: Polska
Pages:1-9
Re-use of public sector information in cultural heritage institutions 1
Re-use of public sector information in
cultural heritage institutions
Paul Keller,a Thomas Margoni,b Katarzyna Rybickabc Alek Tarkowskic
(a) Kennisland.nl; (b) Institute for Information Law (IViR);
(c) Centrum Cyfrowe Projekt: Polska
DOI: 10.5033/ifosslr.v6i1.104
Abstract
In 2013 the European Union amended the Directive on Public Sector
Information, establishing the principle that all available information
produced and collected by public sector institutions must be made
available for reuse under open terms and conditions. The amended
Directive also brings publicly funded libraries, museums and archives
into its scope. These new rules on reuse of heritage materials, treated
as public sector information (PSI), attempt for the first time to define a
general framework for sharing cultural heritage information all around
Europe. In this paper we a rgue that if Member States are not careful,
the implementation of the changes required by the new Directive
could do more harm than good when it comes to access to digitised
cultural heritage in Europe. These concerns relate to how the directive
interacts with copyright legislation. The paper recommends that in
order to contribute to the opening up of cultural heritage resources,
Member States should ensure that all qualifying documents that are
not currently covered by third party intellectual property rights fall
within the scope of the Directive. Member States should also
implement the Directive in a way that will not require institutions to
charge for the reuse of works that they make available for reuse. For
documents that are still protected by intellectual propert y rights but
where these rights are held by the cultural heritage institutions,
Member States should encourage the use of Open Definition-
compliant licences.
Keywords
Law; information technology; public sector information; public
domain; intellectual property rights; open formats; open licences.
Introduction
A decade ago, the European Union established rules for the re-use of public sector information in
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2 Re-use of public sector information in cultural heritage institutions
Directive 2003/98/EC on the re-use of public sector information (2003 Directive)1, which went
into effect on 31 December 2003. It was designed to encourage EU Member States to make
information and resources that they produce and collect reusable to the greatest possible extent.
Re-use rules have been devised as complementary to the citizens’ rights of access to public sector
information, which remains regulated by national law. However, while such an access is often seen
as a basic civil right, re-use is considered an economic right. In fact, beyond fuellin g the
innovation and creativity that stimulate economic growth, open public sector information also
empowers citizens, thereby enhancing participatory democracy and promoting transparent,
accountable and more efficient government. From this perspective, public sector information,
when re-used, becomes the basis for added economic, civic, and social value, as recognised by the
same Commission.
Re-use of cultural heritage resources
The 2003 Directive included in its scope information held only by some Public Sector Bodies
(PSB) such as ministries, states agencies, municipalities and organisations funded for the most part
by, or under the control of, public authorities.2 It explicitly excluded cultural, scientific and
educational institutions and their resources3.
In June 2013 the 2003 Directive was amended by Directive 2013/37/EU (2013 Directive)4 which
placed museums, libraries (including university libraries) and archives within its scope. However,
information held by institutions such as orchestras, operas, ballets and theatres were not included
in the scope of the amending Directive5, and the same holds true for Public Broadcasting
Organisations.6
While some of the rules for cultural heritage institutions deviate from the general PSI re-use rules,
the rationale for including these institutions under the new consolidated PSI Directive is the same:
cultural heritage resources are seen as documents on which added value can be built for
commercial gain and the public benefit. These new rules on re-use of heritage materials,
treated as public sector information, attempt for the first time to define a gene ral framework
for sharing cultural heritage information all around Europe7.
The 2013 Directive introduces a number of new features, one of which is the important “re-usable
by default” rule. This rule provides that all the information already publicly accessible under
national laws will also be considered re-usable.8
1Directive 2003/98/EC on the re-use of public sector information
2 The Directive defines documents as “any content whatever its medium (written on paper or stored in electronic form or
as a sound, visual or audiovisual recording) and any part thereof”; See Art. 2(3) PSI Directive (consolidated version).
3 See Article 2.1 (f) which states that 'this directive shall not apply to … documents held by cultural establishments, such
as museums, libraries, archives, orchestras, operas, ballets and theatres'.
4Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information
5 Article 2.1 (f) of the consolidated directive now states that 'this directive shall not apply to … documents held b y
cultural establishments other than libraries, museums and archives'
6 While the scope of cultural institutions covered by the new regulation seems quite clear, doubts arise in the case of
institutions that are not explicitly referred to as a libraries, archives or museums, but that accumulate cultural resources.
For example, the Polish National Filmotheque is a film archive, but formally n ot defined as such. Since the scope of
the Directive is to increase the availability of heritage collections, it should be interpreted as to include those
institutions that despite a different nomen carry out the same function.
7 In addition to the 28 Member States of the EU the directive is also applicable to the member states of the European
Economic Area and can be expected to have a strong normative influence on countries that aspire to join the European
Union.
8 See Art. 3(1) consolidated version.
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Re-use of public sector information in cultural heritage institutions 3
Cultural heritage institutions may take advantage of a specific exception to this gen eral rule and
they may choose whether or not to make documents for which the y hold intellectual property
rights available for re-use.9 However, when they choose to do so, documents must be re-usable for
commercial or non-commercial purposes in accordance with the conditions established by the
consolidated Directive for other documents held by cultural heritage institutions.
Cultural heritage resources are already being shared by cultural heritage institutions in all EU
Member States;10 however, this practice entirel y depends on the polic ies, funds, resources and
efforts of a given institution. In this regard, the implementation of the new 2013 Directive is not
expected to cause any revolutionary changes. Yet, if implemented correctly, this new Directive can
lead to the establishment of Europe-wide standard rules for the availability of cultural resources,
and increase the scale at which cultural heritage information is shared. On the other hand, an
implementation contrary to the spirit of the Directive could lead to the creation of unnec essary
hurdles t o the re -use of public sector information, which would frustrate the very principle that
inspired both the 2003 and 2013 Directives.
Charging for re-use
The consolidated Directive establishes a number of conditions that apply to the re-use of
documents falling within its scope, such as the principle of non-discrimination and rules related to
charging for re-use of documents. In principle, the consolidated Directive limits charging for re-
use to cover only "marginal costs" – the costs necessary t o make the resources available. However,
some public institutions are "required to generate revenue to cover a substantial part of their costs
relating to the performance of their public tasks or of the costs relating to the collection,
production, reproduction and dissemination of certain documents made available for re-use," and
thus are permitted to charge above the marginal cost.11
The Directive states that libraries, museums and archives are explicitly allowed to charge above
marginal cost, but charges "should not exceed the cost of collection, production, reproduction,
dissemination, preservation and rights clearance, together with a reasonable return on investment."
In the past, the allowed level of such return on investment has been ambiguous. The EU legislator
indicates that "the prices charged by the private sector for the re-use of identical or similar
documents could be considered when calculating a reasonable return on investment". This means
that the Directive allows cultural institutions to make profit by supplying and allowing re-use of
their resources.12
9 See Art. 3(2) of the consolidated version.
10 Europeana.eu alone brings together more than 30 million objects from more than 2500 institutions from all 28 Member
States.
11 See Art. 6 consolidated version.
12 This is further explained in the recent "Commission notice — Guidelines on recommended standard licences, datasets
and charging for the re-use of documents" it is pointed that return on investment can be understood as a percentage
allowing for recovery of the cost of capital and inclusion of a real rate of return (profit). Guidelines refer also to
comparing prices to commercial players in a comparable market and conclude that since public cultural institutions do
not bear the business risk the way the private sector does, a “reasonable” rate of return would be "slightly above the
current cost of capital but well below the average rate of return for commercial players, which is likely to be much
higher due to the higher level of risk incurred".
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4 Re-use of public sector information in cultural heritage institutions
Third party intellectual property rights – limitations of the scope of the
Directive
The Directive limits the type of information that falls within its scope in relation to the existence of
intellectual and i ndustrial property rights. A first case of exclusion from the Directive’s scope
relates to documents for which third parties (meaning not the cultural heritage institution) hold
intellectual property rights such as copyright, related or neighbouring rights as well as sui generis
forms of protection. 13 Thus, for works covered by third party intellectual property rights there is
no re-use obligation.
A second case of exclusion relates to documents protected by “industrial property rights” defined
as patents, registered designs and trademarks. In this case the exclusion is absolute, as it operates
irrespective of the right holder. In other wo rds, no obligation to allow re-use applies when a
document is covered by an industrial property right --including those cases where the right holder
is the library or museum itself.
As a result of these two cases of exclusion, documents held by cultural heritage institutions are
within the scope of the consolidated Directive only if: (i) they are in the public domain, either
because they were never protected by copyright or because copyright has expired; or (ii) the
cultural heritage institution is the original right holder or assignee of the intellectual property
rights.
That being said, it is important to note that the reuse obligations deriving from these two situations
diverge. For (i) documents that are in the public domain the general rule applies: documents must
be re-usable if they are generally accessible (Art. 3(1)). In the different case of (ii) documents for
which the institution holds the copyright and/or related rights the derogatory rule of Art. 3(2)
applies: the institution can decide whether it wants to allow re-use or not. Nonetheless, if re-use is
allowed it must follow the general requirements of transparency and non-discrimination, as well as
the specific limits on the charging policy (see below).
Consequently, documents whose intellectual property rights belong to third parties, but a specific
copy thereof is held by a cultural heritage institution are excluded from the Directive, as confirmed
by Recital 22 and Art. 1(b) of the consolidated version, and accordingly there is no obligation t o
allow re-use.
Unfortunately, Recital 9 of the 2013 Directive introduces some uncertainty.14 It might be
interpreted as impl ying that any document held by a library but originally owned by a third party
and whose term of protection has not yet expired is a document for which third parties hold an
intellectual property right, and therefore is excluded from the scope of the Directive. This reading
seems contrary to the provisions established in Article 3 (consolidated version) and contradicts the
overall objectives and principles enshrined in the Directive (to open-up public knowledge for re-
use). It would further create an unjustified limit to the re-use of PSI in clear contradiction with the
13 Rights covered include performers’ performances, sound recordings/phonograms, broadcasts of broadcasting
organisations and first fixations of films, as well as the sui generis database right and other related rights created or
allowed by the EU legal framework (such as scientific and critical editions, non original photographs, published
editions, typographical arrangements, etc).
14 “Taking into account Union law and the international obligations of Member States and of the Union, particularly
under the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related
Aspects of Intellectual Property Rights, documents for which third parties hold intellectual property rights should be
excluded from the scope of Directive 2003/98/EC. If a third party was the initial owner of the inte llectual property
rights for a document held by libraries, including university libraries, museums and arc hives and the term of protection
of those rights has not expired, that document should, for the purpose of this Directive, be considered a s a document
for which third parties hold intellectual property rights”.
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Re-use of public sector information in cultural heritage institutions 5
legislative history and legal background of the Directive (both versions).15
Given this potential for confusion, it is important that Member States implement the 2013
Directive in line with the rules laid down in Article 3(2) (consolidated version). This means that all
documents for which the institution holds the relevant intellectual property rights are subject to the
discretionary decision to allow re-use. If re-use is granted, then it will be subject to the other
conditions established by the consolidated Directive. This also applies to documents that have been
acquired by public institutions from third parties, provided that the intellectual property rights have
also been transferred to the institution (or other similar agreement to the same effect has been
made).16 Recital 9 (2013 Directive) should be interpreted as simply meaning that documents are
outside the scope of the directive when the cultural heritage institution holds a document for which
it does not simultaneously hold the intellectual property rights, including the situation where the
right holder is unknown.17
Public domain and public sector information
Overall, the Directive is in line with the current trends in regard to digitisation of cultural resources
held by public institutions. Often these digitisation projects focus on works in the public domain
and works for which institutions own the relevant intellectual property rights. For both financial
and practical reasons, cultural institutions have been mainly digitising out-of-copyright works.
15 Recital 9 speaks of third party rights insisting on documents held (not owned) by university libraries, archives or
museums. The reference should be intended to refer to works protected by a copyright owned by a third party, and for
which the library or museum has only acquired the physical ownership of a c opy, or in any case a mere right to display
or lend the document. Cases where the cultural heritage institution does not just hold the document but owns it too –
and is its copyright holder - should therefore be excluded from the scenario of Recital 9 (2013 Directive).
16 This view seems supported by the legislative history of that provision. Nowhere in the drafts that lead to the 2013
Directive is suggested a reading or interpretation that would significantly derogate from the overall scope of the
Directive, i.e. f avouring re-use of PSI. In particular, previous versions of current Recital 9 of the 2013 Directive, set
forth the principle of “strict necessity” which seems to better explain the real function of said Recital. Recital 7 of the
Explanatory Memorandum (which corresponds to current Recital 9 of the 2013 Directive) had an opening text which is
reported for the convenience of the reader: “Directive 2003/98/EC should therefore lay down a clear obligation for
Member States to make all generally available documents re-usable. As it constitutes a limitation to the intellectual
property rights held by the authors of the documents, the scope of such a link between the right of access and the right
of use should be narrowed to what is strictly necessary to reach the objectives pursued by its introduction. In this
respect, taking into account the Union legislation and Member States' and Union's international obligations, notably
under the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related
Aspects of Intellectual Property Rights (the TRIPS Agreement), documents on which third parties …” . It must also be
noted that any different reading would clearly envisage a contradiction between Recital 9 of the 2013 Directive and
Art. 3. Suffice to recall that “the preamble to a Community act has no binding legal force and cannot be relied on as a
ground for derogating from the actual provisions of the act in que stion or for interpreting them in a manner clearly
contrary to their wording”; See Case C-162/97 Nilsson and Others [1998], paragraph 54, and Case C-308/97 Manfredi
[1998], paragraph 30. The EC seems to have recently adopted a similar view on the relationship between Recital 9 and
Art. 3 of the 2003 Directive; see below fn 16.
17 This view seems to be supported by the same European Commission, a t least informally. In the Minutes of the 19th
Meeting of the Public Sector Information Group, held in Luxembourg on September 10 th, 2014, the EC expressed the
following opinion in response to a specific question on the meaning of Recital 9: “The second sentence of recital 9
appears to suggest that documents whose IPR has been acquired by the cultural institution from third parties should be
treated as covered by 3rd party IPR and therefore excluded from the scope of the Directive. In fact, the second sentence
stresses that 3rd party IP rights on documents held by cultural institutions should be respected even in cases where
identifying the right holder is difficult (circumstances in which such works c an be used are normally covered by
Directive 2012/28/EU – the Orphan Works Directive). The Commission is of an opinion that recitals cannot undo the
operational provisions in the body of a Directive and in this case the application based on the literal reading of article 3
seems the best way to ensure the objectives of the PSI Directive. Therefore, the second sentence of recital 9 should
rather be interpreted as encompassing only those situations in which cultural institutions physically own copies of
documents, which are still protected by copyright but the right holders of which are unknown (orphan works)”. Orphan
works are therefore excluded from the general re-use rule. Orphan works are now object of the specific provisions
contained in Directive 2012/28/EC on certain permitted uses of orphan works”. The Minutes are available at
http://ec.europa.eu/digital-agenda/en/news/public-sector-information-group-main-page.
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6 Re-use of public sector information in cultural heritage institutions
While the Directive will not change this situation , it could produce a negative effect on the
availability of public domain works to the general public.
The current best practice with regard to digitisation of public domain materials by cultural heritage
institutions is to make these materials available for free and without restrictions on re-use 18. The
digitisation of public domain works has been an important driver for the nascent open data
movement in the cultural heritage sector.
From a polic y perspective, cultural heritage institutions that decide to make public domain works
available under conditions that limit or regulate their re-use could potentially frustrate the inner
balance between public and private interests supposedly created by copyright law. Again, the
Directive does not, and should not, modify this inner balance of copyright law. Yet, a superficial
extension of the 2013 Directive to works held by cultural heritage institutions would produce the
unwanted effect of introducing new barriers – mainly financial. Charging will affect the re-use of
public domain works and consequently damage the balance established by the temporal nature of
copyright.
As outlined above, the Directive (consolidated version) provides cultural heritage institutions with
the ability to charge for works that they make available for re-use. While this may be a useful
strategy for some institutions to recover a portion of their costs, there are many cases where
charging for re-use will limit access to and re-use of the resources in question. 19 The most
appropriate decision can only be made by the CHIs on a case by case basis.
No charging requirements
National legislatures implementing the 2013 Directive should be careful not to require institutions
to charge for the re-use of works that they make publicly available20. Adding charging
requirements (or encouraging them) could undermine the public domain, limit online access to,
and re-use of, cultural heritage r esources, and damage the nascent open culture data ecosystem. 21
The decision whether to charge for re-use should be left with the CHIs which are usually best
placed to assess the specific needs on a case by case basis.
When applied to cultural heritage resources that have entered into the public domain such
requirements would have the effect of prolonging the access limitation created by the duration of
copyright protection – a duration already considered to be too long b y many stakeholders. These
charging requirements, if implemented improperly, have the potential to undermine the overall
objective of the Directive (increasing re-use of resources held by public institutions).
Licensing
The recitals of the 2013 Directive and a recently published “Guidelines on recommended standard
18 See Europeana's Public Domain Charter or the image re-use policy of the Rijksmuseum .
19 See for example the 'Yellow Milkmaid' white paper published by Europeana in 2011 or the above mentioned image re-
use policy of the Rijksmuseum.
20 An existing example of Public Sector Information legislation that encourages institutions to charge for re-use of public
domain works that the y make available is the French law on access and reuse of public sector information , which has
the effect that public d omain works available via portals like Gallica cannot be used f or commercial purposes without
obtaining a license.
21 It should be noted that the Directive defines maximum level of charges and that the first implementations of the
amended Directive into national laws often define lower limits.
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Re-use of public sector information in cultural heritage institutions 7
licences, datasets and charging for re-use of documents” put a lot of emphasis on the use of
standard open licences. Open licences, such as the Creative Commons licences, build on copyright
and as a result their attachment to works that are out of copyright should not produce any effects.
Accordingly, open licences are not usually enforceable when applied to material that is in the
public domain. Clearly, the arguments in favour of standard licences apply equally to standard
tools for marking public domain works, such as the Public Domain Mark22 and the CC0 Public
Domain Dedication.23
Open licences (especially those that comply with the Open Definition24) should be used not only
when making available documents but also meta-data for which the copyright lies with the cultural
heritage institution – at least in the limited cases where meta-data attract copyright protection
(such as original descriptions of cultural heritage objects).25
Non-discrimination
The Directive (consolidated version) requires that all conditions attach ed to the re-use of
documents shall be non-discriminatory for comparable categories of re-use and that the re-use
shall be open to all potential actors in the market. To fully realise the potential of open data and to
stimulate the development of new services, re-use should be open to all on equal footing. This
means that institutions cannot grant access to certain categories of users but refuse it to others, or
enter into exclusive agreements with selected partners. However, the Directive contains one
important ex ception that allows exclusive contracts for cultural heritage institutions engaging in
digitisation projects. The Directive specifies that such agreements should be limited in time and as
short as possible, with a maximum duration of 10 years.26
Recommendations for Implementation by Member States
As we have explained above, the ongoing im plementation process in the Member States poses a
number of potential pitfalls. If Member States are not careful, the implementation of the 2013
Directive could do more harm than good to the availability of cultural resources held by Europe's
cultural heritage institutions. Such an effect would frustrate the intentions ex pressed by the EC
when the 2013 Directive was approved.27
22 Public Domain Mark
23 CC0 Public Domain Dedication . According to the Commission's Guidelines, " open standard licences, for example the
most recent Creative Commons (CC) licences (version 4.0), could allow the re-use of PSI without the need to develop
and update custom-made licences at national or sub-national level. Of these, the CC0 Public Domain Dedication is of
particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility
for re-users a nd reduces the complications associated with handling numerous licences, with possibly conflicting
provisions."
24 Open Definition
25 Meta-data usually represent factual information such as titles, names, and dates. The standard for copyrightability in
the entire European Union for an y category of works is the “author’s own intellectual c reation” which is present when
the author makes free and creative choices and puts his or her personal stamp in the work. When an output is
constrained by technical and factual rules, there is little to no space for free and creative choices, reducing the
possibility of protected works only to those meta-data that can show personal, free and creative choices. See also Dr.
Till Kreutzer,'Validity of the Creative Commons Zero 1.0 Universal Public Domain Dedication and its usability for
bibliographic meta-data from the perspective of German Copyright Law', (2011) for a discussion about the
protectability of meta-data published by cultural heritage institutions.
26 There is however an exception to this rule: “In the case when the period exceeds 10 years, its duration shall be subject
to review during the 11th year and, if applicable, every seven years thereafter.” which theoretically allows for exclusive
contracts with an indefinite duration.
27 E.g. “[The Directive] encourages the Member States to make as much information available for re-use as possible” or
“[it] introduces a genuine right to reuse by making reusable all content that can be accessed under national access to
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8 Re-use of public sector information in cultural heritage institutions
Accordingly, Member States implementing the 2013 Directive are invited to pay utmost attention
to the following three main recommendations:
1. Member States should implement the 2013 Directive in line with the principles
established by Article 3 (consolidated version) and ensure that all qualifying documents
that are not currently covered by third party intellectual property rights fall within t he
scope of PSI national legislation.
2. Member States must not implement the Directive in such a way that encourages
or requires institutions to charge for works that they make available for re-use. The
decision to charge for re-use should be up to the individual institution. If this is not the
case, the implementation of the 2013 Directive will limit access to and re-use of the
public domain.
3. For documents that are still protected by intellectual property rights, but where
these rights are held by the cultural heritage institutions that have these works in their
collections, Member States should encourage the use of Open Definition-compliant
licences, such as the Creative Commons licences or the Creative Commons Zero
mechanism. This applies in particular to meta-data produced by cultural heritage
institutions, in the limited cases where these meta-data attract copyright protection.
About the authors
Paul Keller is Co-Director and Senior Copyright Adviser at Kennisland, Amsterdam.
Thomas Margoni is a Senior Researcher at the Institute for Information Law (IViR), University of
Amsterdam.
Katarzyna Rybicka is Policy Analyst at Centrum Cyfrowe Projekt: Polska.
Alek Tarkowski is Director and Head of Policy at Centrum Cyfrowe Projekt: Polska.
documents laws”; see http://ec.europa.eu/digital-agenda/en/european-legislation-reuse-public-sector-information.
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Re-use of public sector information in cultural heritage institutions 9
International Free and Open Source Software Law Review Vol. 6, Issue 1
Licence and Attribution
This paper was published in the International Free and Open Source Software Law
Review, Volume 6, Issue 1 (2014). It originally appeared online at
http://www.ifosslr.org.
This article should be cited as follows:
Paul Keller, Thomas Margoni, Katarzyna Rybicka,
Alek Tarkowski (2014) 'Re-use of public sector information in cultural heritage
institutions', International Free and Open Source Software Law Review, 6(I), pp 1 – 9
DOI: 10.5033/ifosslr.v6i1.104
Copyright © 2014 Paul Keller, Thomas Margoni, Katarzyna Rybicka,
Alek Tarkowski
This article is licensed under the Creative Commons 4.0 attribution licence, CC-BY
available at
http://creativecommons.org/licenses/by/4.0