Preparing Bulgarian GLAMs for the EU Copyright Reform
The initiative ‘GLAMs to Fix Copyright: Preparing GLAMs for the Copyright Reform in Bulgaria’ was organized by Creative Commons Bulgaria in collaboration with Digital Republic Association, and supported by Creative Commons Global Network Copyright Platform Activity Fund.
On December 07 and 14, 2020, we organised a two-days extensive copyright training for public libraries in Bulgaria. Our main purpose was to inform library representatives about the upcoming implementation into national law of the recently adopted Directive on Copyright in the Digital Single Market (the CDSM Directive). However, we also included what it turned out to be much-needed information on copyright basics, CC licenses, Rights statements, the legal status of e-books and digitisation.
Setting the Scene
In 2019, after several years of heated discussions, the EU co-legislators adopted a new copyright directive with horizontal effect. The previous general directive harmonizing copyright on EU level was from 2001, thus some of its solutions were deemed outdated. A need for stronger harmonization was recognised in the fields of research, innovation, education and preservation of cultural heritage, where digital technologies permitted new types of uses that were not clearly covered by the existing EU rules on exceptions and limitations.
Firstly, the EU acknowledged, that the existence of different approaches in the Member States with regard to acts of reproduction for preservation by GLAMs (galleries, libraries, archives, and museums) hampered cross-border cooperation, the sharing of means of preservation and the establishment of cross-border preservation networks in the internal market by such institutions, leading to inefficient use of resources. To remedy this, the EU introduced a new mandatory copyright exception, which allows GLAMs to freely reproduce protected content for the purpose of preservation of cultural heritage.
Secondly, to combat the effects of the so-called ‘XXth century black hole’(term coined by Europeana), the legislator acknowledged that cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of works or other subject matter that are considered to be out of commerce. As a result, this directive introduced a complicated mechanism involving extended collective licensing and a subsidiary exception to facilitate the digitisation and making available to the public by GLAM institutions of works in their collections that are no longer in commerce, or never were, to begin with.
Member States need to transpose the new CDSM Directive by 7 June 2021. As of the time of writing of this blog post, the beginning of February 2021, the legislative process in Bulgaria has barely even started. The Ministry of Culture — the body leading the implementation efforts, initialized a written consultation in March 2020 that was open until July. Stakeholder opinions were published at the end of November 2020. As time passes, the creation of a working group to facilitate a transparent multi-stakeholder drafting process seems less and less likely.
In this context, Bulgarian cultural heritage institutions are not only underrepresented in the legislative process — most GLAM institutions’ representatives are not even aware that a reform, likely to heavily impact their operation, is in the works.
GLAMs in Bulgaria and copyright issues
One of the main goals of the project was to inform GLAMs on the new mandatory preservation exception. The previous EU legal framework in the field of copyright was implemented in Bulgaria in 2003, as part of the conditions for accession to the European Union. Thus, Bulgarian legislation contains a relatively broad pre-existing exception allowing GLAMs reproduction of third parties copyrighted content — both for preservation and for educational purposes. The current Bulgarian provision, however, contains two major restrictions that will have to be eliminated with the transposition. First, it allows use of published works only. This limitation may be logical when it comes to educational use, but leaves a wealth of unpublished works outside the cultural institutions’ mandate to copy and digitize unpublished works (e.g. manuscripts) for the purpose of preservation. In addition, the current national exception applies to authors’ rights only. It does not apply to neighbouring rights of performers, phonogram- and film producers and broadcasting organisations. The rationale behind the existing legal solution is unclear.
The second major topic of the copyright reform was the implementation of a mechanism of facilitating the dissemination by public cultural heritage institutions of out of commerce works. At present there is no such special legal regime in Bulgaria. Now with the new mechanism to be implemented into national law, GLAMs will have to sit on the table and negotiate collective licences schemes and tariffs with CMOs. They currently seem woefully unprepared for such a task.
With these initial topics in mind, we realised that there are a lot more issues in the GLAM sector in Bulgaria that should be covered, especially in terms of copyright literacy. There is no sectoral policy on institutional level that we are aware of and GLAMs as a rule are unaware of ongoing legislative policies that concern them and do not have the capacity in terms of staff and resources to react to such developments.
Digitisation efforts are uncoordinated. One of the major problems that we have identified in the sector, beside the fact that national memory institutions are chronically underfunded, is that GLAMs as a rule do not have any copyright lawyers in their staff and do not get professional help with the rights clearing of their collections. As a result, they decidedly do not make use of the existing exceptions and rights clearing opportunities, such as for instance the regulation on orphan works, and generally stick entirely to public domain works for any and all digitising activity that may occur.
A barely developed topic is the one of e-books. Libraries in general are not aware of the current e-lending opportunities and the few instances of e-book lending that exist in practice are limited to physically lending an e-reader loaded with a book in electronic format, subject to exclusive agreements with benefactors.
Furthermore, Bulgaria is one of the fewer countries in Europe that have made use of the Rental and Lending Directive’s derogation, where Member States can introduce unpaid public lending schemes for public libraries. Nevertheless, lately GLAMs face important pressure from publishers, the latter forcing a narrative that public libraries engage in infringing activity when lending to the public without a corresponding remuneration for rights holders.
While being used to interact and work with local GLAM institutions primarily in person and individually, the pandemic forced our community to take a different approach and, instead of a series of face-to-face seminars and talks within different institutions, to organize a relatively large-scale online event for everyone in the sector. To promote the training, we relied on personal connections and the help of the Bulgarian Library Association, who were kind to disseminate the message between their members.
The GLAM community was very interested in the training. We limited the participants to 7 people per institution and it proved to be still too many because most institutions used their quota to the maximum. We had to stop registrations at one point in order to keep the event manageable and more interactive. All in all, we had 66 registered participants from 9 regional libraries in Bulgaria, directors included. Other memory institutions have expressed interest as well, so we are planning to organize a second training in the near future.
For the purpose of the training, we created a professional Zoom account and made active use of its additional features such as embedded quizzes and dividing the participants into break rooms to create more engagement and vibrant discussions.
The response was overwhelmingly positive. All participants said they wanted to stay in touch and receive news and articles on the copyright and open movement topics. More than half of the participants opted to enter an informal working group, coordinated by Digital Republic Association, which will discuss the current legal issues concerning their institutions’ work and aim to develop a strategy for the protection and promotion of GLAMs’ interests within the process of transposition of the CDSM Directive. So, as a surprising positive side effect of the complicated COVID-19 situation — the common online event practically helped us strengthen our network and work simultaneously with a number of prominent libraries to form a real community. We are counting on using the momentum to involve library directors and digitisation officers in the direct legislative process.
Disclaimer: The content of this post does not constitute legal advice nor does it refer to any particular or specific situation. If you have any doubts about your specific situation, you should consult with a lawyer.
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Ana Lazarova is the Creative Commons Chapter Lead for Bulgaria. She is a practising lawyer in the field of Intellectual Property and a doctoral researcher at Sofia University, Bulgaria.
Digital Republic Association is a Bulgarian digital rights organisation, institutional member of the CCGN, actively involved in the ongoing copyright reform at EU and national level.
This project was funded by the Creative Commons Global Network Copyright Platform Activity Fund.