Discussion Paper 1

On legal and regulatory aspects of establishing and accessing audiovisual broadcast archives for educational, scientific and research purposes — with a special regard to cross-border copyright exception.

In this Discussion Paper we are arguing for strengthening the existing exceptions and limitations for educational, scientific and research purposes under the current EU copyright framework and broadening them to cover cross-border uses of AV works contained in AV archives and allow for privileged access outside of physical premises of dedicated institutions. Meanwhile we are proposing the introduction of a harmonized legal deposit framework of public interest audiovisual works.

As discussed by various policy documents, open access to publicly funded documents with special relevance to preserving European cultural heritage is a key requisite for a barriers-free digital Public Domain ”from which new knowledge is derived and new cultural works are created”.

Within the context of the EUscreenXL project, we’re focusing on the creation of a Pan-European audiovisual domain, on the public accessibility to audiovisual archive collections online and on the aggregation of audiovisual content and data to Europeana. Therefore our aim is to address those copyright aspects which might hamper the realization of these objectives. Our primary focus for this discussion paper is on educational, scientific and research uses of of AV works produced by Public Service Broadcasters (PSBs) and works (co-)financed by public funds, as we firmly believe, that the provision of free access for these privileged purposes is a first, major step in the course of action on utilization of the digital European Public Domain.

Free access to and exploitation of works contained in AV broadcast archives for education and research purposes

The Infosoc Directive provides for exceptions and limitations — to reproduction rights and to the rights to communicate to the public — intended to promote education and research activities. However in their current form these provisions allow only for optional implementation by Member States (MSs) while restricting such activities to dedicated (physical) premises of educational or research institutions. The result is “excessively divergent” harmonization by MSs, which has “a negative impact on collaborative digitisation projects across countries” creating “an obstacle to cross-border cooperation between cultural heritage institutions and libraries”. The narrowness of the scope of the exception is also contrary lifelong learning policies enabled by the pervasiveness of the Internet.

Taking into account the above problems, we’re proposing mandatory harmonisation and broadening of the existing exceptions to allow for unlimited access of researchers, archivist and students alike for their privileged usage purposes. Our recommendations include:

  1. Mandatory implementation of Article 5, 2 (c) and 3 (n) of the InfoSoc Directive by amending the InfoSoc Directive (“Member States shall provide for exceptions or limitations”);
  2. Amending Article 3 (n) of the InfoSoc Directive and thus loosening the interpretation of the spatial and technical restriction to the premises of the institutions and dedicated terminals as referred to in the article (“dedicated terminals on the premises of establishments”) following the functional limitation approach while allowing for cross-border remote access strictly dedicated to “purposes of study, research or teaching, excluding any commercial end”;
  3. The exceptions should also incorporate provisions for text and data mining relevant to research purposes of digital archives.

We are seeking responses on at least the following questions relevant to free access to and exploitation of works contained in AV broadcast archives for education and research purposes:

Which technical solutions could provide for the most secure and optimal remote access solutions?
What do you consider as the optimal timeframe for mandatory and harmonised implementation of the proposed exceptions and limitations?

Legal deposit

We propose creating a European Commission recommendation, requiring the establishment of a legal deposit framework of AV works produced by Public Service Broadcasters (PSBs) and works (co-)financed by public funds. This recommendation could rely on the possibilities ensured by the Infosoc Directive mandatory exceptions mentioned above (I.) and the morale applied recently in the widening of the PSI Directive’s scope .

The introduction of ‘legal deposit’ as a policy and regulatory construction is a possible answer to the questions raised by the collision of authors’ and other contributors’ interest for copyright and interest of a given nation (or European citizens) for preserving (and making available) the cultural heritage. With legal deposit legislation the latter interest is prevailing. However there are critical questions related to the scope of legal deposit requirements to be assigned, whereby we propose to include as a minimum

  1. AV works produced by PSBs
  2. AV works (co-)produced with public funds

This is the range of privileged AV works fulfilling per definition public mission. ‘Public Service Broadcasting’ is aimed to serve public interest. Declaring public right to access to AV works, which have been created with public funds to serve public interest is the starting point of the PSI Directive as well, the scope of which has currently been widened. This evidence supports our arguments on the concept of ‘legal deposit’ being in line with wider EU policies on access to public data and also fits well with EUscreen policy: the collected and published AV works by EUscreen correspond to the scope of ‘public mission’ programmes.

a) ‘Public service content’

While elaborating the legitimization of including AV works produced by PSBs within the scope of ‘legal deposit’, the various policies related to public service broadcasting are of special interest:

  • preservation of national culture, language and heritage: ‘legal deposit’ could serve this aim while archiving the AV works produced by PSBs,
  • provision of diversity: with mandatory implementation of the exceptions (see at I.) and with mutual recognition of the legal deposit status (as discussed in III.), this aim can be emerged to Community level, thus ensuring cultural diversity at European level;

universal accessibility: loosening the interpretation of the spatial and technical restrictions of accessibility (see at I.), ensures the universality of access by European citizens to digitized and archived AV works forming critical part of their cultural heritage.

b) AV works produced with public funds

In case of AV works produced with public funds, it is the utilization of public funds that necessitates the inclusion of these works within the scope of ‘legal deposit’ regardless of their content, as it presupposes ‘public interest’. As Communia argues, “what has been paid for by the public must be available to the public”. We propose to include within the scope of ‘legal deposit’ AV works, which have been produced with public funds above a certain, decisive limit.

According to survey data taken by EUScreenXL in Oct 2013, ‘legal deposit’ was only available in few EU MSs (only 10 of respondents affirmed related legal framework on collecting and archiving AV works, while 14 mentioned a domain mandate or an agreement). Therefore we propose adoption EC recommendation on the implementation of ‘legal deposit’ framework in all EU MSs (which should be aligned with the existing and operating models of national archives already in place). The EC recommendation should also address MSs to provide for the necessary institutional and financial conditions of AV archives, while allowing for options to select the most appropriate implementation methods.

The ‘deposit’ should be provided in digital format: at least one copy to the national AV archive (or to the archive designated as the AV archive) and the required metadata should be submitted and made available for entire EU education, science and research community at a single, centralized information point.

The EC recommendation presupposes the amendments to Article 5, 2 (c) of the Infosoc Directive as discussed at I., and also by adding reference to “reproductions constituting a legal deposit of the work in accordance with specific regulations in place”.

Discussion questions:

What should be the certain, decisive limit of public funds above which AV works should be within the scope of ‘legal deposit’?
What role should Europeana play in the aggregation and central availability of the deposited material?

Cross-border access

Regarding some detailed rules, a further result of the harmonization of exceptions and limitations can be the decrease of divergence possibilities of Member States from the unified rules. Obligatory implementation of exceptions and limitations can help with creating a level playing-field of exceptions and limitations at the same level in all Member States. (This level of harmonization should already be satisfactory in case of AV works to which cross-border access is not a pre-requisite.)

To provide for cross-border accessibility of AV works , our proposed solution

  • builds on the already achieved results (implemented exception or limitation and a rule of legal deposit),
  • requires the minimum amendment of the copyright framework,
  • is cost-effective and
  • also takes into consideration the interests of all stakeholders (and is in line to the three-step-test).

Considering this, we propose the adoption of a mutual recognition legal framework which makes possible the use of the content made accessible in other Member States according to an exception or limitation and was the object of legal deposit.

To achieve this goal does not require an essential revision of the copyright legal framework, but requires the integration of national regimes with an already applied method to EC copyright law. The application of the mutual recognition system of the Orphan Works Directive ensures that the content archived as a ‘legal deposit’ in a Member State (and therefore became accessible in archives dedicated for this purpose) will reach the public in other Member States based on the same exception or limitation.

To this end, it is also necessary to explore the optimal methods connecting the national archives from all member states in such a way that it enables universal to all EU AV collections for education, science and research, which presupposes the harmonisation steps taken as drafted in this chapter. The connection can be realized only in relation to AV works, which were archived on the basis of an exception or limitation and made accessible at national level.

Cost-effectiveness can be ensured by preservation and by making accessible the work in an archive in the country of origin. Nevertheless the centralized accessibility of metadata is crucial to this system, and also makes possible the validation of lawfulness of national exceptions and limitations.

Discussion questions:

What kind of potential obstacles of execution of mutual recognition could you envision?
Which set of metadata do you consider necessary to secure mutual recognition of accessible AV works from a different Member State?
How do you envision the centralized accessibility of metadata (what role could Europeana play in this aspect)?
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