Europeanavs. Google Books: why European cultural institutions should treat their public domain content as PSI - Dr. Giuseppe Mazziotti University ...

Europeana vs. Google Books:
why European cultural institutions
should treat their public domain
content as PSI

      Dr. Giuseppe Mazziotti
      University of Copenhagen, Law Dept.
      Columbia University Law School

Aims of cultural digitization
           projects
   Display uses                   Non-display uses

Display use for non-           Non-display uses for non-
commercial (i.e. cultural)     commercial purposes (e.g.
purposes                       indexing, preservation)

Display uses for directly or   Non-display uses for
indirectly commercial          purposes of linguistic
purposes                       research, automatic
                               translation,
                               computational analysis,
                               etc.

Publicly and privately funded
           initiatives
    Google Books                            Europeana
fully private initiative             Co-funded by the EU and
                                     funded entirely by taxpayers'
Google directly scans, stores,
uploads and makes content            money (at the national level)
available through its servers
                                     developed by 1500
Google recently started digitizing   institutions and one national
also museum objects within its
“Art Project” initiative             coordinator/aggregator per
                                     EU country
Other types of digital resources
on Google’s servers are user-        digital resources include
generated (e.g. Youtube) or
displayed as results of search       images, texts, recordings, and
engine operations                    videos

Relevant bodies of law for
digitization and subsequent uses
Copyright law (e.g. rules facilitating the inclusion of
orphan and out-of-print works)

Database protection law (database makers, including
public bodies, may acquire sui generis rights)

Legal rules for re-use of PSI (directive 2003/98)

Rules applying to public/private partnerships and
agreements (e.g. public procurement law)

2003 PSI Directive
Excludes public service broadcasters,
cultural, research and educational
establishments from its field of
application (art. 1.2. lett. d-e-f)
Does not apply to document or
information for which third parties
hold intellectual property rights (art. 1.2
lett. b)

Rules applying to digitization of
 cultural content in the public
Copyright? NO
              domain
Database protection law? NO (database rights matter in so
far as they restrict the subsequent access to digitized content;
re-use of the original analog items is unaffected by database
rights)
PSI Directive rules? NO (because of the above-mentioned
exclusions; however, the recent 2011 “New Renaissance”
report took the opposite view, very surprisingly)
Public/private partnerships: contractual agreements
between public bodies and content users? YES

Google/MIBAC Agreement
         (2010)
Purposes and assumptions              Contractual rules
  Global diffusion of free         Non-exclusive agreement
  access to the Italian cultural
  heritage (one million of         Digitization plan including
  books in the public domain       at least 500.000 volumes
  held by the National
  Libraries of Rome and            Google is free to decide
  Florence)                        about whether to undertake
                                   digitization activities or not
  Google is identified as a
  uniquely equipped provider       Google is entitled to borrow
  of digitization and online       and keep MIBAC’s volumes
  dissemination services           to digitize without having to
                                   pay fees

Google/MIBAC Agreement:
      contractual rules
Google is obliged to provide the National Libraries (MIBAC) with a
copy of the digitized books (the agreement, however, does not specify
the format of the digital copy that the MIBAC is entitled to receive)

The National Library’s copies are subjected to several limitations of
use: for instance, the Library is obliged to implement TPMs in order
to forbid third parties (e.g. Google’s competitors on the market for
search engines) from obtaining, transferring and displaying such
copies (or portions) for commercial aims

Limitations of use expire after 15 years from the time when Google
makes the copies available to the Library

The Agreement, its clauses and the information exchanged by the
parties in execution of their obligations are protected by
confidentiality (non-disclosure obligation)

Are Google’s digitized resources
    useful for Europeana?
Google is not obliged to provide the National Libraries
with interoperable copies: there is no mention of
openness of formats; at least this is not said explicitly
in the agreement

The MIBAC can use its copies only for non-commercial
uses on its websites and portals (like Culturaitalia, i.e.
Europeana’s national aggregator); such copies, however,
should not be transferred or made accessible to the
public (no dissemination; preservation, at best)

Other agreements between public
       bodies and Google
 Google – Oxford University Library (Bodleian Library at
 Oxford): digitization of the majority of out-of-copyright
 works (published before 1885)
 Google – Library of Catalonia (digitization of more than
 100.000 documents in the public domain for the Google
 Books project)
 Google- Complutense University of Madrid (70.000
 digitized documents for Google Books)
 Google – Ghent University Library (signed in 2010: 100.000
 books scanned by Google and made available through
 Europeana)

Main principles of the PSI
        directive
Upper limits for charges for re-use of public sector
information (Art. 6)
Preferable recourse by public sector bodies to standard
licences for the conditions of re-use of their
information (Art. 8)
Transparency and easy accessibility of the conditions of
use and charging (Art. 7)
Non-discrimination between public and private re-users
(Art. 10)

Extending PSI rules: issues to
         consider
 Digitization is certainly a form of re-use of cultural
 institutions’ materials in the public domain (i.e. the
 creation of digital resources from analog materials goes
 beyond the initial objectives of collection and
 preservation pursued by such institutions)
 Subsequent dissemination (i.e. making available) of
 digitized content: is it, technically speaking, a “re-use”
 under the PSI Directive? Who should engage in
 dissemination activities? The EU Commission looks at
 Europeana as the cultural digitization project par
 excellence

Issues to consider (II)
Non-discrimination (i.e. equal treatment) and transparency
should be ensured for both public and private re-users of
cultural content in the public domain

The EU should make it clear what the model of digital
library is: Europeana or Google Books? Should digital
libraries compete or cooperate with each other?

Reconciliation of the objectives of Recommendation
2006/58 on online accessibility of cultural material and
digital preservation and of the purposes of the PSI Directive