Preserving Audiovisual Heritage – Is Copyright an Obstacle?

(IPRinfo 2/2011)

Niklas Bruun
Professor, Director, IPR University Center

The problem of orphan works, among others, has been an obstacle for a rapid digitization of Europe´s audiovisual heritage.

The digital multimedia world has led to a revolution in how materials preserved in archives, libraries and different national institutions can be technically stored and made accessible to wide audiences. For broadcasting organizations or national institutions that already have extensive archives, technological possibilities now exist to create vast databases and possibilities to conduct on-line searches for pre-existing audiovisual analog content once it’s been digitized.

A part of film heritage is lost
Not all audiovisual material is automatically preserved, neither the digital nor the older analog material. In fact, it has been estimated that a huge part of Europe´s film heritage from the period up to the 1950s has been lost since the responsibility for its collection and preservation has not been clearly defined. Also, many of the digitally born films are at present not archived anywhere.

It is therefore not without reason that both national authorities and European Union institutions have been active in trying to promote systems for deposition, preservation, restoration and collection of the audiovisual heritage of Europe.

The European Union has been active in encouraging the development of European standards and interoperability of databases in this area in order to be able to, e.g., link national archives to the European flagship digital library, EUROPEANA. The European Commission also wants to promote the development of film heritage institutions from traditional ”sealed boxes” towards ”full access” well-springs of film culture.

Is copyright a problem?
The digitization of the audiovisual heritage in the EU Member States has advanced rather slowly for several reasons. Digitization is expensive, and it has been difficult to attract private funding for it since the commercial potential for such databases is limited. Restrictive copyright regimes have also been blamed. I will explore below whether copyright is a problem, and if so, how the situation can be resolved.

The problems relating to the digitization of the audiovisual heritage can clearly be allocated to three different problem areas that relate to different phases of the process. The first one relates to the acquisition, digitization and storage (preservation and restoration) of the material, the second is about managing the material, and the third issue relates to the efforts to make this material accessible on-line to the public.

In addition to these issues, the question can be asked on which level these problems should be addressed: on a national, regional (EU) or international level?

Obligation to deposit in a public archive
The first stage of creating a systematic collection of audiovisual works is to create an obligation for creators to deposit them in a public archive. Such an obligation exists in a majority of EU Member States, although in several countries it is only linked to works that have received public funding. Voluntary deposit also takes place based on contractual arrangements.

In practice, however, there are frequent examples of non-compliance with the obligation to deposit the work in many States. The InfoSoc Directive provides an exception (art. 5.2 c.) that allows for reproduction of films or film material in a new medium in order to preserve it.

Member States who have introduced this kind of exception in their national law will not face copyright problems with reproduction for these purposes.

Managing the databases require rights
The managing of databases and the digitized material include many issues.

How to organize the collection of the material and what contractual solutions to apply? What kind of activities for the archive should be foreseen for the future? What technical solutions are adopted and how can the database be linked to other European databases and EUROPEANA?

For the managing of databases and their content, it is important that the rights granted also include making the material accessible to the public. Such rights might, in principle, derive from a contract made between the archive and the depositor, from copyright law (exceptions or limitations) or from a contractual arrangement between collecting societies and the archive. In this respect, both law and practice vary between Member States.

Access to audiovisual archives requires authorization
The InfoSoc Directive Art. 5.3 n) also makes it possible to provide access to works in audiovisual archives by law, as long as this happens via terminals within these public institutions (in situ) and for the purpose of research or private study.

The Finnish Copyright Act also allows for use of a deposited work, with the exception of a cinematographic work deposited by a foreign producer, in research and university audiovisual education. The limits for legal use based on the exceptions allowed in the EU directive are rather narrow. Therefore, increased on-line access to copyright protected works preserved in archives requires prior authorization by the right holders. Here we find the real copyright challenges for the archives.

Especially the problem with so called orphan works has been an obstacle for increasing access to digitized material in archives. An orphan work is usually defined as a copyright-protected work, the right holder of which cannot be identified or located by anyone who wants to make use of the work in a manner that requires the consent of this right holder.

A Directive for orphan works
There is a considerable amount of orphan works in film archives, according to one estimate more than 20 percent of the total, often from the period pre- and post-Second World War. If nothing is done to open this ”sealed box”, these audiovisual works will never be accessible anyone other than a handful of specialists in Europe.

The need for the solution has also been recognized in Europe, both by the European Union and the Council of Europe. The European Union will very soon publish a proposal for a Directive on this issue. It will most likely be based on the considerations of the High Level Expert Group on Digital Libraries that argued that a work can only be classified as orphan when a due diligence search has first been carried out in order to identify or locate the right holder.

The aim of the Directive will clearly be to enable libraries, educational establishments, museums or archives, film heritage institutions and broadcasting organizations to fulfill their public interest objectives: preservation, restoration and cultural and educational access to works contained in their collections.

Collective licensing as a solution
One important mechanism for managing orphan works will certainly be the extended collective licensing system which is applied in slightly different forms in the Nordic countries. The system can be characterized as a combination of a voluntary collective agreement transferring certain rights from a collecting society to the archive for audiovisual works in question, and a legislative extension of the effect of the agreement to cover also right holders of similar types of works who are not members of that society.

Only right holders who explicitly choose to ”opt out” from the system in order to claim individual remuneration or for other reasons will not be covered.

Form of harmonization remains open
Clearly, the problem of orphan works, in the context of copyright legislation, has been one obstacle for a rapid digitization of Europe´s audiovisual heritage, although there are also other hurdles. Since the aim with this regulation primarily is to guarantee access for educational and cultural purposes, it will be interesting to see which legal basis the European Union will choose for a harmonizing instrument in this field.

The applicability of the Lisbon Treaty (TFEU) 118, which seeks to guarantee unified intellectual property rights in Europe, is questionable.

However, cross border access to archives in Europe is a legitimate aim, and experience so far shows that most European countries will take a long time in adopting solutions to the orphan works problem if the EU does not intervene in order to harmonize this matter.

IPR University Center acts as a Subcontractor in the study on ”Challenges of the Digital Era for film heritage institutions” (the working title ”Digital Agenda for European Film Heritage”). The study is financed by the European Commission and coordinated by peacefulfish.

References:

van Gompel, Stef & Hughenholtz, P. Bernt (2010) The Orphan Works Problem: The Copyright Conundrum of Digitizing Large-Scale Audiovisual Archives, and How to Solve It. Popular Communication 8 (1): 61-71.

Commission Staff Working Document on the challenges for European film heritage from the analogue and the digital era, Brussels, 2.6.2010 SEC (2010) 853 final

Communication from the Commission to the European Parliament, the Council, the Economic and social Committee and the Committee of the Regions. Towards a Single Market Act. For a highly competitive social market economy, Brussels 11.11.2010, COM (2010) 608 final/2, proposal No 2.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the InfoSoc Directive), Official Journal of the European Communities 22.6.2001, L 167/10.

Vuopala, Anna (2010) Assessment of the Orphan Works Issue and Costs for Rights Clearance. European Commission. DG Information Society and Media. Unit E4 Access to Information. Available: