Intellectual Property Rights: good or bad for Creativity in the Digital World?

By Fred Truyen


Jan van Eyck. Hubert van Eyck. Lam Gods Open: Our Lady Mary, detail: Dress Collection Glass slides KU Leuven Saint Baafs Cathedral, Ghent Public Domain Marked

I was writing a contribution for a book for the RICHES project, which deals with challenges of heritage in the digital environment. I chose to offer some reflections on our experience with Intellectual Property Rights (IPR) in the EuropeanaPhotography project (see also the nice final report!). While this project was about early photography, and we spent golden moments just sifting through brilliant collections of early photographs, (we never had a meeting without actually looking at photos) – IPR imposed itself as an unwanted burden; a horribly complex but unavoidable issue when you’re dealing with photography. From a task attributed to a subcontractor it quickly became a pivotal aspect of the project. And an interesting one, I must confess.

What was the situation? We were, with about 15 partners, of which several hold prominent archives of photographic heritage, both public and private, hired to digitize, and then contribute about 450.000 high quality images of early photography to Europeana. The digitization, though technically challenging, went smoothly. But the upload to Europeana encountered a glitch, when it appeared that the images had to pass through what is called the “Rights Labelling Campaign“, which tries to identify, for each object uploaded to Europeana, the copyright status.

For an individual user of Europeana, this is not so relevant, but once you want to make professional and/or commercial use of what is on Europeana, it becomes totally different. Because while Europeana gives you free access to about 30 million objects of European Cultural Heritage, copyrights tend to block any re-use other than personal re-use. So even a teacher who would want to make a website for their students cannot simply copy these images, without checking the copyright. Having clear copyright labels that allow you to search for reusable content is thus a necessity, both for humans and computer applications: developers can easily filter out content that they can reuse in their apps.

At first the content providers for EuropeanaPhotography were not pleased by this initiative, to say the least. Private photo agencies, whose business model is completely IPR oriented, fearing their older work, when labelled Public Domain, would be reused without them receiving any revenue. Similarly, public archives, who feared misuse of heritage photos (e.g. as backgrounds in video games or commercials), were not at ease. You can read about these findings in our IPR Guidebook.

Eventually, we had some very good experiences with publishing under an open license, e.g. with the beautiful Lithuanian Art Museum collection (see also a nice blogpost about this), the Gencat collection and the KU Leuven collection.

On the one hand, certainly in the digital realm, IPR is essential so that those who produce and create valuable works can earn a living from it. Without copyright protection (and the similar patent, design, software and database protections) authors, programmers, developers, publishers and others in the creative industries wouldn’t be able to sustain their work. But with massive sharing of information on the internet in the smartphone age, IPR doesn’t seem very much up to the task. And it’s very complicated too. If you want to learn more about its intricacies, there are the absolutely excellent and very readable guidelines developed by the Europeana Fashion project. In particular, two deficiencies in the current regulations are holding up creative reuse.

First of all, most European national legislations do not have a real “Fair Use” provision such as US Copyright Law §107. These limit the copyrights in such a way that educatonal reuse is warranted. Instead, in Europe, there are “fair dealings” with the rights holder representatives (often collecting societies) that many in the educational world would rather label as “unfair dealings“. In Belgium, e.g. through Reprobel, universities and libraries contribute for their use of copyrighted work in an educational context.

Second, libraries and archives are hampered when trying to put digitzed heritage online by still unfinished legal work on Orphan Works, a work of which the author is unknown, which is the case for many very interesting family photographs in archives (which are often the most appealing images for an archive to publish). In many European countries there is still no translation of the EC Orphan Works directive in national laws, so there is still a lot of risk involved that right holder representatives come up with claims.

Public Domain Mark

What can help, and how can you help? Well, first of all, if you contribute stuff to the web and do want to share, use Creative Commons rights statements to clearly indicate that your work can be reused, remixed, redistributed to the benefit of all, and why not to your own benefit in the long run. And don’t be too shy: “commercial reuse” isn’t always “commercial” as in “commercials” or advertising. It could be some smart kid makes a nifty application with your work, which brings joy to all! He/She needs to pay his bills for pizza and sweets, and their internet connection too!

But, more generally, copyrights should be embedded in a broader discussion, involving moral and cultural rights. One of those rights is the right to culture! A very convincing proposal has been worked out in the RICHES project policy brief, a must read for anyone interested in Cultural Policy and Creative Industries. Real access to culture means also appropriation by stakeholder communities and the possibility for co-creation.

And what if you yourself, in a sudden moment of creative fervor, decide to reuse content and make something new and share it with others? Well, you can easily search for reusable content online using the following resources: