Defining the Cultural Commons

Deﬁning the Cultural CommonsPaul Keller, OK fest Helsinki, 19 September 2012

1. where do we come from?2. where are we now? 3. what is to be done?

project gutenberg

Bundesarchief wikimedia commons

NA joins ﬂickr

open images

opencultuurdata / rijksmuseum

What have we learned from this?Cultural heritage is a surprisingly diﬃcult domain for building a commons. The works are concentrated in the hands of institutions that generally do not control the rights in these works. This has a number of consequences: • Cultural heritage institutions often feel trapped by copyright. Many of the look at open content licenses as the solution to their problems (and are disappointed when they ﬁgure out that they aren’t) • Where institutions do have the rights in works in their collections they are often very conservative about access & reuse.

What have we learned from this?• For the same reason many cultural heritage institutions have a almost schizophrenic relationship with the public domain: They value the fact that there are no restrictions on works in the public domain and at the same time they have the desire to exercise control over such works (for example by applying CC licenses).• Open content projects like the ones presented here often have the function to be able ‘to do something’ and, as a result, they often distract from addressing the underlying problems.

Norm settingWith regards to norm setting we have actually made some pretty good progress in the last couple of years. Norm setting is possible in those areas of the commons where the cultural heritage institutions themselves control the rights or where the rights have expired:• Public Domain works • Metadata (and ‘secondary works’)• Works where the copyright is with the institutions

Norms: Public Domain (1) The general principle that ‘what is in the public domain in analogue form should be in the public domain in digital form’ is gaining ground: • (COMMUNIA) public domain manifesto 2010• Europeana Public Domain Charter 2010• Committee des Sages report ‘the new renaissance’ 2011• EC Commission recommendation on digitization 2011• LoC request for information on private digitization 2012• Europeana Data Exchange Agreement 2012

Norms: Public Domain (2)The main challenge for this principle is the need of institutions to generate revenue/pay for digitization:• Google contracts with Libraries grant Google a 15 year period of ‘preferred commercial exploitation’ (PSI directive might reduce this to 7 years)• LoC request for information asks for maximum of 3 year exclusivity.On the other hand ﬁrst experiences of the Rijksmuseum show that free availability doesn’t hurt revenue generation.

Norms: metadataThe general trend with (simple) descriptive metadata points into the direction of free (no restrictions/conditions) availability. Metadata is widely understood as a tool to improve the discoverability of collections.• Various Libraries have release their bibliographical records under CC zero (Harvard Library System alone 12M records) • Europeana has released more than 20M records from all types of institutions under CC zero last week.

metadata objects public domain own own copyrightcopyright third party copyright

public domain own copyrights

Third party copyrights (1)Central question is how do we deal with material that is under third party copyright? This is the majority of 20th century culture (including virtually all moving images). How do we envisage bringing these works into the cultural commons? Suggested strategies include:• lobbying for exceptions that would allow heritage institutions to make use of such works (and possibly individual end-‐users too)

Third party copyrights (2) • Licensing rights (via collective rights management organizations). Generally this does not create anything resembling a commons.• Working with institutions to develop strategies to ensure that new acquisitions can be made available.• Getting in touch with rights holders to obtain permission to publish works under open licenses (does not scale very well).

Rights holders tend to be much less conservative than we generally assume (example below) Artists contacted 429 Choices made 267 CC-‐BY-‐NC-‐ND 54 CC-‐BY-‐SA 64 Permission to use 145 No permission 3 Special contract 1

What is to be done? (1)If we are serious about creating a true cultural commons (that does not only consist of the leftovers) we need to work on the issue of third party rights:• lobby for exceptions that allow institutions to make available works in their collections online (free? renumeration? how to diﬀerentiate between works in commercial circulation and those that are not?) • lobby for exceptions that allow private individuals (and non-‐proﬁts?) to re-‐use works from those institutions.

What is to be done? (2)This probably includes a diﬀerent perspective on the PSI directive. There is a lot of resistance among cultural heritage institutions to be included, because they feel that this limits their options. I would argue that if institutions are serious to be part of a cultural commons they should embrace the special position created by the PSI directive and position itself as part of the public sector (which will make it easier to claim special status in the context of copyright).

Defining the Cultural Commons

by Paul Keller on Sep 19, 2012

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