While cultural institutions such as libraries, museums and archives wish to digitize their collections for preservation purposes and make the world’s cultural heritage available to the public, private entities are launching projects to provide access to digitized contents through Internet search engines. This may, however, raise copyright issues, particularly in case of “opt-out” programs such as Google’s Book Search, where rights holders have to specifically request that their copyrighted works be excluded from the project. This chapter highlights the legal challenges involved in the digitization of works from libraries’ collections and the subsequent use of the digital files.
TopBackground
On November 11, 2008 the European Digital Library Europeana was inaugurated by Viviane Reding, European Commissioner for Information Society and Media. The website (www.europeana.eu), which is yet a prototype and is still being developed, links the visitor to 4,6 million digital items such as images, texts, sounds and videos, and the Commission expects this number to grow to 10 million by 2010. One key challenge is to include in-copyright material in order to avoid a “20th century black-hole”.
The idea for Europeana came from a letter of the French, German, Italian, Spanish, Hungarian and Polish Heads of State and Government to the Presidency of Council and the Commission on 28 April 2005. They suggested “the creation of a virtual European library, aiming to make Europe’s cultural and scientific resources accessible for all”.2 In reaction to the Google’s Digital Library Project3 and concerned about the hegemony of Anglo-American resources on the web4, the signatories urged the European Commission to coordinate and support the various initiatives taken at national level in order to create a common multilingual access point to digitized resources across Europe.
On 30 September 2005 the European Commission made digital libraries a priority in the i2010 European Digital Libraries Initiative and exposed a strategy for digitization, online accessibility and digital preservation of Europe’s collective memory.5 The Commission then addressed the issue of digitization in several “soft law” instruments such as recommendations6, communications7 and reports.8 The initiative of the Commission has received strong support from the European Parliament9 and the Council.10
About at the same time of the inauguration of Europeana, the Commission issued a Green Paper on Copyright in the Knowledge Economy, whose purpose is “to foster a debate on how knowledge for research, science and education can best be disseminated in the online environment”.11 Even if it does not deal solely with digitization of contents and digital libraries, the Green Paper, however, focuses in its second part on the exceptions to copyright which are most relevant for the dissemination of knowledge and particularly on the exception for the benefit of libraries and archives. While alleging that it will address all issues “in a balanced manner taking into account the perspective of publishers, libraries, educational establishments, museums, archives, researchers, people with a disability and the public at large”, the Green Paper does not mention the authors at all. As this document of the European Commission actually deals with copyright, which is understood in all Member States as “rights of the author”, one may wonder why the situation of the authors is overlooked. Although the Green Paper allegedly only intends to launch a consultation on the issues connected with the role of copyright in the knowledge economy12, the questions dealing with the exceptions for libraries and archives clearly evidence the opinion of the drafters that these exceptions should be extended in order for the libraries to make available their collections for the benefits of users and public interest.