Computers, software tools and the Internet have radically changed the ways cultural content is produced, distributed, consumed and re-used for creative works. The Internet allowed easy and inexpensive publishing, copying and further distribution of creative works. With affordable and easy to use digital tools (e.g. weblogs) more people could engage in cultural expression, and traditional divisions between professional producers (publishers) and consumers broke down. The so called Web 2.0 or “social web”, online communities and content sharing platforms such as Flickr and YouTube allowed Internet users to become active participants and content contributors in the cultural sphere and civil society movements (OECD 2007a).
These changes have challenged established regimes of copyright because their rigid application became understood to impede cultural participation, creativity and innovation and, thereby, run against the public interest. Commercial producers and distributors of cultural content have of course sought to protect their copyrighted products against copying and further distribution (i.e. “content piracy”). However, in the digital environment in which people are no longer passive consumers of content a more open attitude towards intellectual property and copyrights emerged.
Still there is a big gap and conflict between advocates of strict adherence to existing copyright law and activists for Open Access to as much re-useable content as possible. But since about 20 years the Open Access movement has been very successful and won on many fronts, certainly in the fields of academic publication, educational resources, and cultural content held by public institutions.
What is open access?
A widely used definition of “open” is provided by the Open Knowledge Foundation: “A piece of data or content is open if anyone is free to use, reuse, and redistribute it – subject only, at most, to the requirement to attribute and/or share-alike” (this definition is detailed further here).
As a broader definition “open access” we suggest: That the content is available and easy to find online, can be accessed and acquired free of charge, is in the public domain or liberally licensed, ideally free of any restrictions to re-use and distribute and, consequently, provided according to standards and formats that allow for this.
Open Access to cultural heritage content
Cultural heritage content presents a special situation with regard to Open Access in that most content is in the Public Domain (i.e. the copyright has expired) and curated by publicly funded institutions. The title of a recent anthology of papers on openness and sharing of cultural heritage content, “Sharing is Caring” (Sanderhoff 2014) summarises very well what open access means in this domain: to take care that cultural heritage is preserved, made accessible, appreciated and shared as wide as possible.
More specifically, the anthology states: “Cultural heritage belongs to everyone. It was created by – and for – all kinds of people. The digitisation of physical heritage objects enables them to move out of storage rooms, library shelves, and file drawers, and land in the hands of the worlds’ citizens. When cultural heritage is digital, there is nothing standing in the way of sharing and reusing it. It can be sampled, remixed, embedded, it can illustrate new stories and move into new media, it can adorn books, posters, and public spaces, advance research and make ideas and creativity blossom. When cultural heritage is digital, open and shareable, it becomes common property, something that is right at hand every day. It becomes a part of us.”
Indeed, the digitisation of a lot of cultural heritage content by libraries, museums and archives has produced a massive stock of digital content (cf. the ENUMERATE 2012 survey) that can be used for learning about cultural heritage and producing new creative works and services like thematic websites and mobile applications to engage citizens in cultural participation.
In Europe the Europeana initiative since many years has mobilized institutions to make content available for these purposes. Many institutions participate because digitising content allows them to fulfil better their public mission of providing access to their collections also in the digital environment. The Europeana initiative promotes re-use of the content by citizens as well as cultural and creative businesses (e.g. Europeana Creative), encouraging people’s creativity and creation of new cultural expressions.
These goals are shared by many digital cultural heritage initiatives worldwide (e.g. Open GLAM), and ever more open access content has been made available by institutions, including also natural history and biodiversity museums and archives (e.g. Biodiversity Heritage Library).
Cultural heritage content in the Public Domain
Although the goal of Open Access to cultural heritage content is acknowledge by most institutions, there is a considerable issue in that they are often hard-pressed to develop an entrepreneurial mindset and acquire additional income to be less dependent on public funding – which these days is more likely to be cut than increased. Licensing digital content for commercial use can be one source of income. But, at the same time, the institutions are asked by governments and advocates of Open Access to make the digital content they hold freely available. The request clearly generates a conflict of interest.
If the institutions aim to make content Open Access, they are also facing considerable problems. Often they are bound to limitations set by the original owners of copyrights who donated the content or would need to engage in an extremely difficult and time consuming process of rights clearance with several rights holder. But most institutions do not have the capacity for such rights clearance, leaving large parts of their collection inaccessible online.
Only if works are in the Public Domain the content can be made available easily; this is the case if the copyrights in the original work have expired (usually 70 years after the death of the author) or its creator has waived his or her copyrights. Also in the case of orphan works where there is no known copyright holder the content may be made available open access.
In general it is understood that heritage collections which fall within the Public Domain in physical form (i.e. museum objects, books held by libraries) should fall within the Public Domain in digitised form as well (cf. the Europeana “Public Domain Charter” 2010), certainly if they have been digitised with public funds. Digital content that has been created with public funds should be made freely accessible to the public.
Creative Commons licensing
A major problem concerning copyrights is that the existing legislation sets as default “all rights reserved”. This means that if the copyright holders want to allow others to do anything with the content, they must take the effort to make this clear; otherwise nobody can legitimately re-use the work without permission. The issue has been addressed by the non-profit organisation Creative Commons (founded in 2001) by providing a set of standardised and more or less open licenses.
The basic set consists of six CC licenses which all have as a basis the condition “Attribution” (BY), which requires giving credit to the author. The CC-BY license is the most liberal license which “lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation”. The inclusion of the condition “ShareAlike” in the license requires that the new creation be licensed under identical terms. The inclusion of “No Derivatives” completely reduces the permitted use of the work to redistributing it unchanged and in whole. Inclusion of “NonCommercial” in a license of course excludes using the work for commercial purposes.
It is important to note that each of the six CC licenses implies some baseline rights and restrictions, which, among others, include that the license applies worldwide, lasts for the duration of the work’s copyright, and is not revocable. Furthermore each license allows licensees to copy the work, to distribute it, to display or perform it publicly, to make digital public performances of it (e.g. webcasting) and to shift the work into another format as a verbatim copy.
In addition, Creative Commons also provides the CC0 license which allows authors to waive all rights and place a work in the Public Domain (i.e. “all rights granted”). Furthermore there is the Public Domain Mark which allows web users to “mark” a work as being in the public domain. This is provided for works that are free of known copyright, typically very old works.
The Creative Commons licenses have been very successful in allowing people and institutions to share digital content according to their goals and terms. They are the most used open content licenses worldwide. Licenses specifically for data and databases are provided by Open Data Commons. A very useful toolkit with information about all aspects of IPR and licensing issues important to public sector institutions is provided by the UK Strategic Content Alliance (JISC 2009).
Amended European Union Directive on the Re-use of Public Sector Information
While cultural heritage content is mostly held by publicly funded institutions, they were not included in the European Union’s Directive 2003/98/EC on the Re-use of Public Sector Information. The situation has changed in June 2013 by an amendment, Directive 2013/37/EU, which is to be transposed into national laws of the EU member states by July 2015.
Cultural heritage institutions that are public sector bodies according to the definition of the Directive will be obliged to allow re-use of the content they hold. This includes “(a) any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audio-visual recording); (b) any part of such content”. The Directive also wants to see the content to be in machine-readable and open formats in order to facilitate easy re-use for private and commercial purposes.
Where the public sector cultural institutions make information available for re-use, they will be able to charge to cover the costs along with a reasonable return on their investment. If they have been working with a partner on a digitisation project, some flexibility is permitted, on a time limited basis, concerning exclusive licensing. A recent report by the ePSI Platform (2014) provides more information about the implications of the directive for cultural heritage institutions, and the LAPSI 2.0 project regular updates on the topic.
Notably the Directive on the Re-use of Public Sector Information does not apply to public educational and research institutions, including organisations established for the transfer of research results, schools and universities, except university libraries (if they are public sector bodies according to the Directive.
Open Access to academic works and scientific data
Before the success of Open Access publishing, most peer-reviewed academic papers were published in corporate-owned journals. The subscription fees of the journals were often prohibitively expensive – despite the fact that the authors and reviewers are not paid for their work. The taxpayers therefore had to pay for the publicly funded research and publication work and the academic libraries’ subscriptions to the journals. Even worse, the authors and libraries were not allowed to make the published content available beyond circumscribed groups of users (e.g. authenticated users of the libraries).
The Budapest Open Access Initiative (2002), the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities (2003) and several other initiatives mobilized research funders, institutions and scholars to work towards making knowledge available to everyone who can make use of it, apply or build on it. This open access movement (cf. the record by Suber 2004-2013) achieved better conditions for access to academic works in that most journals now allow the authors self-archiving of publications on a personal website or in an open access repository, and many journals provide the open access option, i.e. the author pays for the publication which in turn becomes accessible online for the public without charge.
Today there exist nearly 10,000 open access academic journals that are registered in the Directory of Open Access Journals (DOAJ), and more than 2,700 archives are included in the Directory of Open Access Repositories (OpenDOAR). About 30 percent of peer-reviewed articles today are open access, while ever more research funding bodies and institutions ask the researchers, wherever possible, to publish open access and deposit publications in open access repositories.
In recent years, following declarations, initiatives and reports by the OECD, European Commission and many others, such open access mandates have been extended to the data that underpin the scientific publications (OECD 2004; OECD 2007b; European Commission 2008, 2011 and 2012; Royal Society 2012) However, this is still unfamiliar terrain for most researchers and involves additional effort for making the data available so that it can be used by others who were not involved in the research (Borgman 2010; Pryor 2009; RIN 2008, RIN & NESTA 2010).
Open educational resources
A lot of success has been achieved by the Open Access movement in the field of education, training and lifelong learning. Already well underway some years ago (Geser 2007; OECD 2007c), the movement has expanded further and involves ever more institutions, teachers and learners. It can point to ever more open courseware, textbooks and other resources for learning that are freely available online (Kanwar et al. 2011; SURF 2013). Among the major promoters and providers are UNESCO, OER Commons, the Open Education Consortium and the Commonwealth of Learning.
Results of the CreativeCH workshop on “Open Access, IPR and management of rights”
The topic of Open Access to cultural content, especially the implications of the Directive on the Re-use of Public Sector Information, has been addressed in the CreativeCH session of the event “Horizon2020 and Creative Europe vs Digital Heritage – A European Projects Crossover”, Florence, 18 February 2014.