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Mass digitisation of cultural heritage in Europe

Legal and technical solutions to the orphan works problem

Mass digitisation of cultural heritage in Europe

See how BU’s Centre for Intellectual Property Policy & Management (CIPPM), in collaboration with other European research centres, has been at the forefront of research to develop solutions for the digitisation of our cultural heritage.

Digitisation of European cultural heritage is a significant challenge of the 21st century. Libraries, museums, archives, and other memory institutions now have the technological means to digitise their whole collections and make them available online.

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Therefore, the potential for accessibility to cultural artefacts, with consequential benefits for research and study, is immense. However, in practice, this type of undertaking is severely restricted due to the real or potential existence of copyright and related rights.

BU’s CIPPM, led by Professor Maurizio Borghi, working with three other European research centres, has addressed this issue through the launch of an online platform, ‘Diligent Search’. This now provides cultural institutions an easy to use tool to carry out diligent searches of rightsholders, including those works where the rightsholders are unknown (‘orphan works’), so that they can legally digitise their collections.

The creation of this platform is the outcome of three successful years of research through the European project ‘EnDOW: Enhancing access to 20th Century cultural heritage through Distributed Orphan Works clearance’.

As a result of the online platform, users with no specialised legal knowledge are able to carry out diligent searches on behalf of cultural heritage institutions. The tool is available for searches in 20 jurisdictions in the European Union, widening its accessibility and potential for positive impact across Europe.

Delegates from participating institutions at the EnDOW Conference Delegates from participating institutions at the EnDOW Conference, Spain

In May 2018, the project culminated in the EnDOW Final Conference where the participating institutions and its associated project members presented their findings at the EU Intellectual Property Office in Alicante, Spain, officially launching Diligent Search.

Addressing the orphan works challenge

‘Orphan works’ are works in which copyright still exists, but where the rightholder, whether it be the creator of the work or his/her successor in title, cannot be identified or located. This therefore limits the potential reach and impact of the works to a variety of audiences who may benefit from these works, such as engagement with works in a new, digital format.

Since the widespread use of the internet, the orphan works challenge has been at the top of the cultural agenda of governments and legislators alike. Yet, despite major legislative intervention, including the European Directive on orphan works, the problem, prior to the launch of Diligent Search, was far from being solved.

The problem of orphan works – works to which access is effectively barred because the copyright holder cannot be traced – represents the starkest failure of the copyright framework to adapt".

The Hargreaves Review, Digital Opportunity: A Review of Intellectual Property and Growth; London: Intellectual Property Office; 2011; p.38

The requirement of ‘’diligent search’’, as contained in orphan works legislation, has previously encountered both major practical and financial hurdles. The EnDOW project looked to address these through their research into the legal instruments of ‘’diligent search’’ in the EU and creating an online platform that would allow for crowdsourced diligent search processes. This was a unique approach which enabled the project team to alleviate the previously associated high costs of diligent search.

Finding a solution

In July 2015, BU’s CIPPM - who were project leaders - began work on EnDOW alongside three other leading European research centres, namely:

They were successful in obtaining funding for the project, which spanned from 2015-2018, under Heritage Plus (a programme launched by agencies of 18 European countries and the European Commission as part of the Joint Programming Initiative in Cultural Heritage and Global Change).

Specifically, EnDOW’s aim was to design, implement and test an efficient and cost-effective system (Diligent Search) for determining the orphan work status of library, archive and museum material, according to the requirements of the European Directive on orphan works.

The key objectives of EnDOW were as follows and the project team followed this step-by-step process in their ground-breaking research:

  • To analyse the legal requirement of ‘’diligent search’’ across the orphan works legislation of a selected number of EU Member States
  • To investigate best practices of orphan works clearance across cultural heritage sectors
  • Based on this knowledge, to design, implement and optimise an online platform for crowd-sourced diligent searching on works contained in the collections of European cultural institutions
  • To study the potential applications and challenges of the crowd-based search method for texts, images, films, works of visual art and born-digital cultural heritage works.

When launched at the final conference of the project in Spain, the platform received positive feedback from delegates:

[The EnDOW platform] is an innovative tool for guiding cultural heritage institutions with their diligent search requirements…[the project's findings could be] implemented by policy makers at the national level".

Carlos Perez Maestro and Raplos Lakavicius from the European Commission, after the presentation of the project at the final conference in Spain, May 2018

Where it all started

The launch of the EnDOW project in 2015 followed the publication of two distinct pieces of work, namely Copyright and Mass Digitization and Copyright and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation.

In March 2013, Professor Borghi co-authored a monograph with Professor Stavroula Karapapa, titled Copyright and Mass Digitization. Published by Oxford University Press, this book queries the normative and policy implications of this newly emerging framework in copyright law. It also introduces a new regulatory framework drawing from the insights developed in areas of law where the concept of consent in the use of data has been thoroughly elaborated.

Following this, in July 2013 CIPPM launched at the Law Society in London a report entitled Copyright and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation.

Co-authored by four researchers from BU’s CIPPM, namely Dr Marcella Favale, Dr Fabian Homberg, Professor Dinusha Mendis, Dr Davide Secchi, and Professor Martin Krestchmer of CREATe, University of Glasgow, the report was commissioned to assist the UK Government in evaluating policy options to enable and price the use of orphan works. 

The report included a comparative international review of actual and proposed orphan works legislation in several jurisdictions aimed at identifying key characteristics of orphan works licensing schemes, as well as a simulated rights clearance for six scenarios in order to identify pricing models in the studied jurisdictions. Examples of the scenarios tested for both commercial and non-commercial use are varied and include historical geographic maps for a video game for mobile phones, a vintage postcard collection for web publication and national folk tune recordings for multimedia/teaching (DVD).

The outcome of the EnDOW project, Diligent Search, has given European cultural institutions a high-value, online tool to carry out diligent searches of rightsholders, applying crowd sourcing to certain aspects of the search, so that they are able to legally digitise their collections. This has directly addressed the problem of publicising and digitising orphan works, which until the EnDOW project was severely limited by practical and financial barriers. Ultimately, Diligent Search now offers a way to sustainably manage our recent cultural heritage, including the use and re-use of related cultural artefacts.

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