Authors Creative Commons
License CC-BY-4.0
TOWARDS BETTER SHARING OF
CULTURAL HERITAGE
A CALL TO ACTION TO POLICYMAKERS
A Creative Commons Policy Guide
The Artists Garden at Saint-Claire by Henri-Edmond Cross; Public Domain
© Creative Commons 2022 | Creative Commons Attribution License 4.0 (CC BY 4.0)
“Can you permit... the public to be deprived
of a thing so useful and precious?... When
this loss has been suffered, there will not be
a man in the world... that will be able to
repair it.”
Gabriel Naudé (1600-1653) French Librarian and Scholar 1
FOREWORD
Preservation, access, sharing, use, and reuse of rightsholders to opt into a more flexible model about positive policy change, so that we can
cultural heritage are essential ingredients of of sharing, but they do not establish a general leverage the transformational power of better
thriving and resilient societies and are sharing framework for everyone. Approaches sharing of cultural heritage for the benefit of
demonstrated contributors to sustainable like fostering a “voluntary public domain” institutions, individuals, communities, and
development. But inadequate, nonexistent, or through standard waivers like the CC public society at large.
unclear public policies —particularly copyright domain dedication (CC0) go a long way, but they
and related laws— often raise unnecessary can never fully substitute for suitable laws and I wish to express my deep gratitude to everyone
barriers around cultural heritage. for an actual public domain of content freely who contributed to this important resource. For
usable by law. Thus, many people are still facing your knowledge, expertise, enthusiasm and
At Creative Commons (CC), we have known this tremendous challenges in the digital dedication to better sharing, thank you
since we first launched our copyright licenses environment in accessing, sharing, and
over 20 years ago to enhance the sharing of a (re)using the content held in CHIs, despite
wide variety of creative content. In fact, CC legal growing use of CC legal tools as global standards
tools were specifically created to lift these policy for sharing.
barriers, and many cultural heritage institutions
(CHIs) have successfully harnessed them to Policy reform is therefore needed to fill any gaps
release nearly five million digital open images. left by an open licensing “patch” to a universal,
For example, in the last few years alone, multidimensional problem. It is needed to
museums such as Paris Musées in France, the achieve better sharing of cultural heritage
Smithsonian Institution, the Metropolitan globally, i.e.:
Museum of Art, and Cleveland Museum of Art in
the United States, the Auckland Museum in New • Sharing that is inclusive, just and equitable
Zealand, and the Egyptian Museum of Turin in — where everyone has a wide opportunity to
Italy, have all released content using CC tools or access content, contribute their own
licenses. Libraries such as the National and creativity, and receive recognition and
University Library of Slovenia and the National rewards for their contributions.
Central Library of Rome, Italy, have also made
their collections available under CC tools. On • Sharing that is reciprocal — where we
the archives front, examples include the Archivo rebalance the skewed world we live in now,
Histórico de la Provincia de Buenos Aires in in which a few produce and profit from
Argentina, the Queensland State Archive in works that the many consume.
Australia, the Centro de Fotografía de
Montevideo in Uruguay, and the Archivio • Sharing that is sustainable — where open
fotografico Ricordi in Italy. participation in the public commons is the
default, rather than the exception.
While the CC legal tools advance global sharing,
they are not designed to be a panacea to all the To address this need, this Call to Action gives a Catherine Stihler, CEO, Creative Commons
difficulties of sharing cultural heritage digitally. clear diagnosis of challenges and offers
They are the simplest way for creators and practical, actionable recommendations to bring December 2022
2
TABLE OF CONTENTS
FOREWORD 2
TABLE OF CONTENTS 3
EXECUTIVE SUMMARY 4
ABOUT THIS GUIDE 6
Origins 6
Objectives and Target Audience 6
An Urgent Need to Realize Open Culture for All 7
What challenges does cultural heritage face? Climate 7
change, health crises, armed conflicts… and copyright?
Why is it important to maintain access and better sharing of 9
cultural heritage?
What are the benefits of better sharing of cultural heritage? 10
What happens if we do not take action? 10
Five Actions to Advance Open Culture and Better Sharing of 12
Cultural Heritage
ACTION 1: Protect the Public Domain from Erosion 13
ACTION 2: Reduce the Term of Copyright Protection 14
ACTION 3: Legally Allow Necessary Activities of Cultural 15
Heritage Institutions
ACTION 4: Shield Cultural Heritage Institutions from Liability 17
ACTION 5: Ensure Respect, Equity, and Inclusivity 18
NOTES 20
3
EXECUTIVE SUMMARY
For over two decades, Creative Commons (CC)
has been active in the cultural sphere, Reduce the Term of Copyright Protection Legally Allow Necessary Activities of
promoting open sharing of information, ideas, Cultural Heritage Institutions
and artifacts to build a more equitable, • Reduce the term of protection.
accessible, and innovative world. Guided by our • Render protection dependent on • Enable cultural heritage institutions to
vision to achieve better sharing of cultural registration (or other formality). reproduce and make copyright-
heritage, CC is driving policy reform on a global protected heritage available for use
scale. • Resist proposals to extend the terms of and reuse by the public for non-
copyright any further than they commercial purposes.
By proposing five concrete actions, our currently are.
• Permit all necessary activities that
objective is to support policymakers around • Make it as easy as possible to allow users to make use of heritage for
the world in reforming policy — in particular determine works as orphaned. non-commercial purposes and to use
copyright laws — within and across their heritage to participate in public
respective jurisdictions to achieve better discourse.
sharing of cultural heritage in the public
interest. These actions offer a basis for a shared Shield Cultural Heritage Institutions
vision on better sharing, emphasizing that any from Liability
policy framework is meant to serve multiple Ensure Respect, Equity, Diversity and
stakeholders in a balanced way: from creators to • Remove liability for cultural heritage Inclusivity
(re)users of cultural heritage through to Cultural institutions acting in good faith.
Heritage Institutions, among many other actors. • consider, in addition to the public
• Where liability cannot be removed,
limit sanctions and remedies for domain status of a cultural element,
Policy makers should: additional legal, ethical or contractual
cultural heritage institutions.
restrictions that may govern the
• Create a safe harbor to allow cultural conditions of access, use and reuse;
Protect the Public Domain from Erosion heritage institutions to legally carry out
their activities, including making • acknowledge that access and reuse
• Adopt clear and strong policy that collections available online to their restrictions might be justified for
unambiguously states that faithful users, and to encourage them to ethical reasons;
reproductions of public domain comply with notice and take down • engage and liaise with source
materials must not be encumbered by mechanisms in case of infringement communities to determine a
technical, financial, legal or claims brought by rightholders. framework for digitization and making
contractual restrictions. collections available; and
• Offer a mechanism to challenge a • clearly communicate and educate
copyright claim or contest an objectʼs their users about the terms of use and
status as rightfully in the public reuse, and any conditions thus
domain. established to make sharing more
equitable.
4
Image from “Amérique du Sud. Trois ans chez les Argentins ... Illustrations de Riou, etc” by Romain dʼAurignac; Public Domain
ABOUT THIS GUIDE
Origins Objective and Target Audience
For over two decades, Creative Commons (CC) This document aims to support policymakers in
has been active in the cultural sphere, reforming policy — in particular copyright laws
— within and across their respective
promoting open sharing of information, ideas, jurisdictions to achieve better sharing of cultural
and artifacts to build a more equitable, heritage in the public interest. It offers a basis
accessible, and innovative world. CCʼs legacy for a shared vision on better sharing,
imbues our open culture program2 and offers a emphasizing that any policy framework is
solid scaffolding to our current efforts to meant to serve multiple stakeholders in a
promote better sharing of cultural heritage. balanced way: from creators to (re)users of
cultural heritage through to CHIs, among many
In April 2022, we released a policy paper titled other actors.
“Towards Better Sharing of Cultural Heritage — This guide is intended for policymakers around
An Agenda for Copyright Reform,”3 developed the world: people working in government
by members of the Creative Commons departments, ministries, legislature, or other
Copyright Platform4 and CC friends from around public bodies, and who are responsible for
the world. The paper addresses the key high- devising and making decisions around public
level policy issues in support of better sharing, policies or rules (e.g., laws, regulations, etc.) at
national, regional, or international levels.
with a focus on heritage held in cultural heritage
institutions (CHIs), such as galleries, libraries, It may also be of interest to professionals and
archives and museums (GLAMs). While it is a practitioners working in institutional settings in
celebrated reference document, it is not meant the cultural heritage or other sectors, notably
to serve as a simple, concise, accessible the creative, education or research sectors, as
resource. The latter is the purpose of the present well as anyone interested in bringing about
positive change to access, sharing, using and
guide. reusing cultural heritage in the public interest.
6
AN URGENT NEED TO REALIZE OPEN CULTURE FOR ALL
What challenges does cultural heritage face?
Climate change, health crises, armed Health crises, such as the COVID-19
conflicts… and copyright? pandemic, can have an acute impact for
the cultural heritage sector. For instance,
The world has always known crises, conflict, many libraries were forced to close their
and great threats to its very existence, and doors during lockdowns and faced barriers
policymakers have been quick to act in order to to continue providing access to materials
preserve the lives and property of those and services to their users in the digital
afflicted. One crisis that is often overlooked, environment, such as digital lending and
though no less important, is the irremediable online storytelling.5
loss of cultural heritage — the local history, art
and artifacts, and knowledge of a region, which
are often deeply linked to peopleʼs identities
and cannot easily be accessed and shared, let Humanitarian and armed conflicts, such
alone replaced. In the last few years alone, the as the wars in Ukraine and in parts of the
world has been going through a heightened Middle East and Africa, to name a few,
number of challenges. have necessitated efforts to preserve
centuries-old cultural heritage before it is
lost forever, such as in the digitization and
reconstruction efforts underway in Syria
after the destruction of the ancient city of
Palmyra.6
Rising sea levels due to climate change
threaten objects, sites, monuments, entire
cities and even whole nations.7 We have
seen that wildfires—whether caused by
climate change, human neglect, or
conflict—have critically endangered
cultural heritage sites and institutions in
recent years, in places such as Brazil,8
South Africa,9 and Easter Island (Chile),10
among others.11
7
AN URGENT NEED TO REALIZE OPEN CULTURE FOR ALL
It is difficult enough to preserve, access and But this approach has clear limits, the most
share cultural heritage in the face of wars, prominent being jurisdictions where a complete What is cultural heritage and what does
famine, and natural disasters. A compounding, waiver of copyright is not possible under it mean to “enjoy” it?
often little known challenge is copyright law. national copyright law. To still have an effect
Copyright laws that do not allow for the full use for/in such jurisdictions, the waiver tools “Cultural heritage is, in its broadest sense,
of the public domain, that do not allow for contain unconditional fallback licenses, both a product and a process, which
exceptions and limitations for educational12 and assertions of non-enforcement, and more. The provides societies with a wealth of
other legitimate uses, and that do not allow many scenarios where such complex constructs resources that are inherited from the past,
institutions to make use of modern technology can fail, general contract law providing the most created in the present and bestowed for
to digitize, preserve and give access to their obvious ones, make it obvious that standard the benefit of future generations.”15 –
collections, make it all the more difficult for tools can only be a patch, not a fix to problems UNESCO
people to access and enjoy cultural heritage and of the copyright system.14
for cultural heritage13 institutions (CHIs) to fulfill Participation in cultural life is a human
their crucial missions. right, and access to and enjoyment of
cultural heritage are necessary conditions
This is particularly true in the digital to participate in cultural life.16 Access to
environment, where with the advent of the and sharing cultural heritage are a
internet, public expectations have radically universal fundamental right and must be
changed around access to information, upheld as such.
knowledge, and culture held in CHIs. Factors
such as limited resources play a role, but the
policy framework is often to blame: unable to
keep up with technological advancements, it is
nowadays still inapt for the digital age, with
negative impacts on our shared mission to
increase the universal sum of knowledge,
enhance collaborative knowledge generation,
and foster participation in cultural creativity.
Inappropriate copyright laws put our worldʼs
entire cultural heritage ecosystem in peril. This
must change. Organizations like Open
Knowledge and Creative Commons (CC) have
built standardized tools to make it easier for Inappropriate copyright laws put our worldʼs
individuals and institutions alike to set content
as free as possible. Those tools are waivers of entire cultural heritage ecosystem in peril.
rights that are meant to put content into what is
sometimes called a “voluntary public domain”
status. This must change.
8
AN URGENT NEED TO REALIZE OPEN CULTURE FOR ALL
Why is it important to maintain access and
better sharing of cultural heritage? What are the SDGs and how do they
relate to open culture?
Cultural heritage plays a critical role in our
societies. Being able to access, study, and reuse As the United Nations Sustainable
heritage, as well as related information and Development Goals (SDGs)17 and the
knowledge, allows us to learn from our mistakes Mondiacult 2022 Declaration for Culture18
and build upon the creativity of our ancestors. emphasize, culture is a global public good.
Access to cultural heritage is essential for Public goods are meant to be free to be
societies to build upon the learnings from their shared and enjoyed by everyone,
pasts in order to find purpose for their futures. everywhere. In UNESCOʼs words, “culture
is the bridge between peoples and
This becomes more important as heritage is countries… and the key to unlocking
increasingly accessed online, where the mutual understanding and reinforcing
possibilities for sharing and collaboration are global action based human rights and
immense, but the laws, restrictive. When people respect for diversity.”19
face such challenges accessing their heritage,
how are they to understand their present and Culture underpins all 17 of the SDGs —
sustainably build their future? How are they to particularly relevant goals include Goals
learn from the mistakes of history, participate in 16.1020 on public access to information
generative creativity cycles, and enjoy their and fundamental freedoms, and 11.421 on
fundamental right to access to culture? If we protection and safeguarding of cultural
want to build a sustainable future for all, we heritage. Calls are being made to make
need to unlock the possibilities of the digital age culture a sustainable development goal in
for the benefit of CHIs and their users, and open itself, and CHIs are recognized agents of
up cultural heritage to free it from undue sustainable development that can help
restrictions. achieve these goals.
When people face such challenges accessing
their past heritage, how are they to understand
their present and sustainably build their future?
9
AN URGENT NEED TO REALIZE OPEN CULTURE FOR ALL
What are the benefits of better sharing of Open Culture can help CHIs and civil society: What happens if we do not take action?
cultural heritage?
• foster universal access to cultural heritage, If we do not act to reform the policy framework,
Sharing cultural heritage openly is not only as widely and equitably as possible, we collectively risk:
essential for solving the worldʼs biggest • enable creators and artists to discover,
problems and achieving sustainable • undermining institutionsʼ public-interest
share, and remix cultural heritage materials,
development,22 it is also a positive means to activities in the digital environment,
enhance and enrich our cultural lives and make • support contemporary creativity in the • realizing a poor return on investment to
collections relevant in the digital age, especially digital space, the extent that CHIs are publicly funded,
on major sharing platforms. For example, in • act as an engine for sustainable cultural
2018, the Metropolitan Museum of Art saw a • exacerbating inequalities by curtailing
and social development, through fair
385% increase in visibility on Wikipedia, efforts to provide universal access to
remuneration and open, financially
reaching 10 million people per month thanks to knowledge and culture,
sustainable models,
its open access policy.23 In 2021, the Wellcome • carving a black hole26 into the worldʼs
Collection in the UK announced its images had • be a catalyst for the dissemination and digital cultural heritage,
passed 1.5 billion views on Wikipedia.24 revitalization of culture,
• creating a disconnect between data
• facilitate preservation of the worldʼs sovereignty, data access, and cultural
memory, heritage;
• promote intercultural dialogue and • alienating members of society from their
understanding, histories,
• positively impact contemporary culture • contributing to societiesʼ shorter memory
and creativity within and outside and attention span,
institutional contexts,
• the worst of our history repeating itself.,
• create, adopt and implement open culture
policies that support all of these goals. • fewer people engaging in cultural
discussions, thus forgoing the opportunity
to create spaces for mutual learning and
Notably, celebrating cultural heritage through knowledge-building,
better sharing can reduce barriers to • leaving access and sharing in the exclusive
collaborative knowledge building, help enhance hands of private, profit-minded actors,
intercultural understanding, and enable reducing the diversity of what is available
everyone to immediately participate in a and making our heritage vulnerable to the
positive creativity cycle.25 whims of the rich and powerful.
The time to act is now.
10
Ballet Dancers by Henri de Toulouse-Lautrec; CC0
FIVE ACTIONS TO ADVANCE OPEN CULTURE AND BETTER SHARING OF CULTURAL HERITAGE
To achieve better sharing, cultural heritage Here are five concrete actions to achieve this
institutions (CHIs) need to be able to freely What do we mean by “policy necessary change:
ingest, harvest, digitize, transpose and make framework” and “rules”?
cultural heritage available to the people that 1. Protect the public domain from erosion
they serve within their institutions and on the In this document, a policy framework is
internet. This is part of their public interest duty. the set of rules that govern institutions 2. Reduce the term of copyright protection
Of course, it is not sufficient for CHIs to preserve and peopleʼs access and use of cultural
and make heritage available, if people cannot heritage in general — whether local, 3. Legally allow necessary activities of
use it for private study, parody, research or national, regional or international. To cultural heritage institutions
criticism, and other activities that enable the achieve a common, lasting solution, many
exercise of fundamental rights. CHIs must hence policy areas need to be considered, 4. Shield cultural heritage institutions from
gain increased ability to enable every member including: copyright and related rights, liability
of the public to enjoy unlimited, broad access data protection, privacy, traditional
and ability to share and (re)use cultural heritage knowledge, ethics, cultural rights, cultural 5. Ensure respect, equity, diversity and
as much as possible. Hence, the need for a clear heritage, and public sector information, inclusivity
supportive policy on heritage extends to users among others. Because copyright is so
and the entire heritage sharing ecosystem. fundamental to the way cultural heritage
is being produced, shared and used, it is a
To accomplish these goals, copyright laws, good place to begin to drive positive
social norms, as well as practices and behaviors change towards better sharing.
(which may all form part of or relate to the
“policy framework”) need to change, much of
which can be directly influenced by
policymakers.
12
ACTION 1: PROTECT THE PUBLIC DOMAIN FROM EROSION RECOMMENDATIONS
Problem: External Threats are Eroding the The public domain must be specifically and
Public Domain and Erecting Barriers Around Itʼs a fact! explicitly protected by law. While recognizing
Non-Original Reproductions of Public Domain that there are occasionally cultural or ethical
Materials → The British Museum charges a £179 fee considerations to be made when sharing and
to download a reproduction of a public reusing public domain works (see Action 5), the
Digital reproductions of public domain domain painting by 19th century artist law must make it clear that public domain
materials — which all belong in the public Hawing Hogarth.30 materials can be legally reused freely, including
domain — are being locked up behind several for commercial purposes. Digital copies of
barriers and limitations, thereby eroding the → In 2019, the Neues Museum in Berlin public domain works should be freely reusable
public domain. Erosion occurs due to various released a 3D scan of the 3000-year-old by anyone for any purpose, and must not be
threats. Nefertiti bust from ancient Egypt on restricted by the application of other laws,
display at the museum under a CC BY-NC- contracts or financial or technical barriers.
Technical: institution, platform or software uses SA license.31 Policymakers should:
digital rights management (DRM), such as
watermarks, over digital objects;27 → In 2022, the Uffizi Museum in Florence • Adopt clear and strong policy that
took legal action against French designer unambiguously states that faithful
Financial: institution charges fees to download Jean Paul Gaultier for his use of the public reproductions of public domain materials
images or collections are only available behind domain painting Birth of Venus by must not be encumbered by technical,
paywalls; Renaissance artist Boticelli.32 financial, legal or contractual restrictions.
→ The Van Gogh Museumʼs terms of service • Determine that no copyright (or related
Legal: rights) arises in non-original, faithful
restricts reuse of the Dutch artistʼs public
domain works to non-commercial cases reproductions of public domain cultural
• Copyright law — institution claims a heritage materials, so that works in the
secondary layer of copyright over non- only.33
public domain remain in the public
original digital reproductions;28 domain.35
→ In 2016, the National Institute of
• Cultural heritage law — In some countries Fryderyk Chopin issued an ordinance • Prohibit the use of contracts, technical
(e.g. France, Italy, Bulgaria, Greece, among protecting his name and public image and measures or financial means to restrict
others), digital copies of public domain filed an application to register two access to and use of public domain
works held in institutions cannot be freely trademarks for the word “Chopin.”34 materials.
reused for commercial purposes on the
basis of cultural heritage protection law; • Offer a mechanism to challenge a
copyright claim or contest an objectʼs
• Trademark law — institution uses status as rightfully in the public domain.
trademark protection over public domain
cultural heritage to prevent free reuse (or • Create a claim of action (i.e. a user-based
attempt to do so);29 right to challenge an abusive or incorrect
copyright claim) and an administrative
Contractual: institution applies contractual agency charged with reviewing such
restrictions to limit reuse through terms of challenges.36
service.
13
ACTION 2: REDUCE THE TERM OF COPYRIGHT PROTECTION RECOMMENDATIONS
Problem: Copyright Lasts for Too Long Studies of the link between economic benefits Policymakers should:
and terms of protection have consistently
Heritage is locked up behind a copyright wall for shown that the current terms of protection are • Reduce the term of protection.
a very long period. And it keeps getting longer. not optimal for most cultural expressions.43 In • Render protection dependent on
According to current international law, 2016, the Australian Productivity Commission registration (or other formality).
copyright protection must last until at least 50 found that “[t]he scope and term of copyright
years after the death of the creator, but laws protection in Australia has expanded over time, • Resist proposals to extend the terms of
greatly vary from country to country. In most often with no transparent evidence-based copyright any further than they currently
jurisdictions the term is life of the author + 70 analysis, and is now skewed too far in favor of are.
years, in some, it is even longer — life + 100 copyright holders. While a single optimal • Make it as easy as possible to determine
years in the case of Mexico. We are witnessing a copyright term is arguably elusive, it is likely to works as orphaned.
worrying trend of ever-extending terms of be considerably less than 70 years after death.”44
protection, which risks removing cultural
heritage out of the public domain.37
Orphan works and out of commerce works pose Itʼs a fact!
additional challenges, which are compounded
by overly long protection.38 CHIs are often not → Culturally important books are less
the rightholders of the works in their available in countries with longer terms
collections, and works have such a long term of than shorter ones.40
protection that information about who the
current rightholders are or how to contact them → Orphan works (works that are still in
is often impossible to find. It is very time copyright but whose rightsholder(s)
consuming and difficult to declare a work legally cannot be identified or located) form a
orphaned in order to take advantage of orphan considerable part of the collections of
work regimes. Excessively long copyright terms cultural institutions. In 2012, the British
serve to exacerbate these issues as worksʼ entry Library estimated that 40% of its
into the public domain is continually delayed copyrighted collections (150 million works
and never clearly predictable. Continual in total) were orphaned.41
extension of copyright terms in several
jurisdictions has also made it extremely difficult → Copyright has created a twentieth
to determine a workʼs true copyright status.39 century black hole of access to heritage;
heritage materials created between 1940
and 2000 are underrepresented in
Europeanaʼs digitally accessible
repositories, thereby skewing the
perspective on our recent history.42
14
ACTION 3: LEGALLY ALLOW NECESSARY ACTIVITIES OF CULTURAL HERITAGE INSTITUTIONS
Problem: CHIs Cannot Fulfill Their Mission This means that, in reality, heritage cannot be
Due to Copyright Restrictions enjoyed in the most openly accessible ways and Itʼs a fact!
places today: digitally and online. And this is the
CHIs need to make reproductions of copyright- case despite that CHIsʼ uses are more often than → Archives sometimes cannot make
protected works in their collections for not non-commercial in nature and do not affect preservation copies of the documents they
preservation purposes (e.g., to address the risk the normal exploitation of the works. Not only hold despite severe threats of loss due to
of deterioration). They also need to make all are CHIsʼ fundamental activities curtailed by climate change.49
sorts of uses to make works available to the copyright restrictions, but the general public is
public, including digital display, online denied its vital use of heritage for enjoyment as → Libraries often can only provide access
curational review and criticism, digital lending,45 well as in public discourse, such as commentary, to digital copies of work onsite on
access and reuse,46 etc. Additionally, the text pastiche or parody.48 dedicated terminals (not remotely).50
and data mining (TDM) process, which is crucial
for cultural heritage research, requires → Most current disability copyright
reproduction of the text or the work to be mined exceptions focus solely on visual
to reveal patterns, trends, and correlations in impairments (to the exclusion of other
the text or data. Not all jurisdictions explicitly physical, cognitive, or developmental
allow for TDM. Further, most jurisdictions do not disabilities). They thus only allow for
explicitly allow heritage to be presented on a access related to print disabilities (i.e.,
non-commercial website for a general audience books and braille / large print / audio
without permission and remuneration to (a formats) rather than the wider range of
representative of) the rightsholder. creative subject matter.51
These uses are often restricted by copyright and, → Information is restricted within state
unless an exception or limitation (E&L) applies, borders when copyright exceptions stop at
are often considered infringement. E&Ls exist to the border.52
balance the rights of creators with the needs of
society—they include concepts like user rights, → Technical protection measures (TPMs)53
open norms47 (i.e., open approaches to that cannot be legally circumvented, are
copyright exceptions, such as fair use and fair used on literary works distributed
dealing) as well as specific, statutory electronically, such as e-books,54 and
exceptions. Unfortunately, they are often make it impossible for individuals to use
insufficient, curtailed or even non-existent, those works in ways which would
making copyright inapt to be conducive to CHIsʼ otherwise be non-infringing. This hinders
mission. cultural heritage research that
substantially relies on TDM.55
15
ACTION 3: LEGALLY ALLOW NECESSARY ACTIVITIES OF CULTURAL HERITAGE INSTITUTIONS
RECOMMENDATIONS Minimum Necessary Exceptions and Limitations • use works in the contexts of public speech
for Cultural Heritage Institutions and Their and news reporting.
Institutions must be allowed to carry out all the Users
• use works for purposes of quotation,
activities necessary to fulfill their public-interest Cultural heritage institutions must at a minimum criticism, review and parody, caricature, and
missions and serve their users. Policymakers be able to: pastiche.
should:
1. Make reproductions of works in their • make transformative uses, such as remixes
• Enable cultural heritage institutions to collection: and other forms of user-generated content.
reproduce and make copyright-protected CHIs must be able to make reproductions of works Effective Operability and Application
heritage available for use and reuse by the in their collections: Requirements
public for non-commercial purposes.
• for preservation purposes, All these exceptions or limitations must be:
• Permit all necessary activities that allow users • to cater to the needs of users with disabilities, • in place of clear, easy to understand,
to make use of heritage for non-commercial coherent and consistent policy.
• to enable text and data mining of their
purposes and to use heritage to participate in collection. • Legally certain and unambiguous.
public discourse.
2. Make works available to the public: • Easy to enjoy and benefit from.
These actions need to be properly protected by Keeping heritage makes sense when it can be • Flexible—to address unforeseen or edge
using clear, unambiguous language in the form of accessed, shared and enjoyed by the public. cases.
E&Ls (including user rights, open norms like fair Hence, CHIs must be able to:
use, or statutory exceptions) that are fit for the • Fit for a digital age and future proof—e.g.
digital age and future-proof. Such exceptions and • display and exhibit their collection, including they should cover born-digital and
limitations must be mandatory, not subject to digitally, digitized works and account for
remuneration (e.g., not to be implemented in a advancements in technology.
• lend born-digital e-works and digitized works,
model similar to compulsory licensing), and • Mandatory — forming an essential part of
protected from contractual override.56 On this last • provide access and allow use of (digitized) copyright law, i.e., not as part of
point, many CHIs get locked into licensing works for educational or private purposes, recommendations or sector-wide license
agreements that explicitly remove their ability to such as research and private study, agreements.
rely on exceptions to conduct their normal • make works available for non-commercial
activities, such as exceptions guaranteed under • Not contractually waivable or overridden by
purposes when their commercial exploitation contracts.
the WIPO Marrakesh Treaty.57 No contractual naturally ends.
terms should minimize or cancel uses allowed • Not subject to remuneration — no statutory
under exceptions.58 3. Enable reuse of the works: or compulsory licensing requirements.
In addition to accessing works, CHIsʼ users must • Applicable and harmonized across
The specific activities that CHIs need to carry out be able to:
at a minimum in the course of their duties and that jurisdictions — to allow for cross-border
need to be allowed under copyright law are • access and use works for educational or uses and international collaboration.
detailed below. To ensure that such activities may private purposes, such as research and • Unhampered by digital rights management
legally take place, complete and unrestricted private study, and technological protection measures.
application E&Ls must be guaranteed in copyright • perform text and data mining,
laws.
• exercise freedom of panorama.
16
ACTION 4: SHIELD CULTURAL HERITAGE INSTITUTIONS FROM LIABILITY RECOMMENDATIONS
Problem: Copyright Puts an Unfair Liability Good faith uses by institutions in the course of
Burden on Institutions Itʼs a fact! fulfilling their public-interest missions
(especially uses for non-commercial purposes)
In order to fulfill their missions to preserve → For many librarians, copyright is seen as should not be considered copyright
heritage and facilitate sharing, participation in a “difficult” area that can inspire infringement, and institutions should not be
and engagement with heritage, CHIs must make avoidance behaviors and can result in held liable. Policymakers should:
certain uses of the copyright-protected works in anxiety.59
their collections. Because these uses may or • Remove liability for cultural heritage
may not be allowed under complex and unclear → Multiple court cases in the Netherlands institutions acting in good faith.
copyright laws, institutions operate under a risk have severely limited the enjoyment of
digitized 20th century Dutch heritage. • Where liability cannot be removed, limit
(real or perceived) of copyright infringement. sanctions and remedies for cultural heritage
Sanctions and damages for copyright Three cases in particular resulted in
massive preventive removal of digitized institutions.
infringement can be steep, and in some
jurisdictions, institutions can be faced with heritage from publicly available online • Create a safe harbor to allow cultural
demand letters without a complaint ever going platforms.60 This had a chilling effect on heritage institutions to legally carry out their
to court, where it could be legally challenged. As institutions and curtailed the online activities, including making collections
a consequence, institutions adopt a risk-averse availability of heritage. It also caused available online to their users, and to
approach, induced by copyright anxiety, and expenditure of valuable resources to encourage them to comply with notice and
refrain from undertaking the necessary locate creators and rights holders for uses take down mechanisms in case of
activities to fulfill their mission. of their works, even where the sharing by infringement claims brought by
CHIs caused no harm to the normal rightholders.61
exploitation of those works.
17
ACTION 5: ENSURE RESPECT, EQUITY, AND INCLUSIVITY RECOMMENDATIONS
Problem: Access to and Aharing in Cultural Policymakers should encourage institutions to
Heritage Is Not Always Equitable, Respectful Itʼs a fact! adopt an ethical and equitable approach to
or Inclusive sharing their collections and develop policy that
→ In 1992, the song “Sweet Lullaby” (on calls on institutions to:
In some cases, fulfilling CHIsʼ mission to make world music album Deep Forest) remixed a
collections available can be intricate when the recording of an age-old lullaby sung by a • consider, in addition to the public domain
collections contain (1) heritage materials that woman called Afunakwa, recorded by status of a cultural element, additional legal,
belong to marginalized communities who have Swiss ethnomusicologist Hugo Zemp in ethical or contractual restrictions that may
been excluded from access and participation in 1970 in the Solomon Islands. Taken from govern the conditions of access, use and
the sharing of cultural heritage; (2) materials the UNESCO traditional music archive, the reuse;
acquired in the context of colonization (3) remixed version generated large profits,
but was created without authorization, • acknowledge that access and reuse
materials of Indigenous peoples;62 (4) materials restrictions might be justified for ethical
that are considered private (especially in cases compensation, or acknowledgement of
Afunakwa or her community.65 reasons;
of use for facial recognition); (5) materials that
represent children or other vulnerable groups; • engage and liaise with source communities
among other sensitive materials.63 In such cases, to determine a framework for digitization
specific and complex equity issues arise well and making collections available; and
beyond the in-copyright vs. public domain • clearly communicate and educate their
paradigm, which warrant a responsible, users about the terms of use and reuse, and
nuanced, equitable and respectful approach, as any conditions thus established to make
well the need to bring respect, equity, and sharing more equitable.
inclusivity into the “open culture” equation. At
Creative Commons, this forms part of our vision
for better sharing of cultural heritage. Dialogue,
trust and understanding are some of the key
ingredients to achieve this vision for sharing
that is more ethical and more equitable.64
18
12th Century Chess Set; Public Domain
NOTES
1. Gabriel Naudé, News from France. Or, a description of the library of Cardinall files/cdis/heritage_dimension.pdf (PDF).
Mazarini: before it was utterly ruined (London: Timothy Garthwait, 1652), as quoted in 16. Farida Shaheed, Report of the independent expert in the field of cultural rights, UN
The Library: A Fragile History, by Arthur der Weduwen and Andrew Pettegree, Profile Human Rights Council, UN Doc. A/HRC/17/38, 21 March 2011, https://documents-dds-
Book, 2021, p. 206. ny.un.org/doc/UNDOC/GEN/G11/122/04/PDF/G1112204.pdf?OpenElement. See also,
2. Creative Commons, “Open Culture” webpage, https://creativecommons.org/about/ Article 27(1), Universal Declaration of Human Rights (1948), United Nations, https://
program-areas/arts-culture/. www.un.org/en/about-us/universal-declaration-of-human-rights. These rights are also
expressed in various UNESCO instruments and programs, notably: World Heritage
3. Brigitte Vézina, “CC publishes policy paper titled Towards Better Sharing of Cultural Convention (1972), article 5, https://whc.unesco.org/en/convention/; Convention for the
Heritage — An Agenda for Copyright Reform - Creative Commons,” Creative Commons Safeguarding of the Intangible Cultural Heritage (2003), article 23, https://ich.unesco.org/
blog, April 2022, https://creativecommons.org/2022/04/04/cc-publishes-policy-paper- en/convention,; and Memory of the World Program (1992), https://www.unesco.org/en/
titled-towards-better-sharing-of-cultural-heritage-an-agenda-for-copyright-reform/ . memory-world.
4. CC Copyright Platform, https://network.creativecommons.org/cc-copyright- 17. United Nations, The 17 Goals, https://sdgs.un.org/goals.
platform-activity-fund/. 18. UNESCO, “MONDIACULT 2022 : States adopt historic Declaration for Culture,” press
5. International Federation of Library Associations and Institutions (IFLA), “Request for release, September 2022, https://www.unesco.org/en/articles/mondiacult-2022-states-
contributions for the information session on the impact of the Covid-19 pandemic on the adopt-historic-declaration-culture?hub=701.
copyright ecosystem,” WIPO, 2022, https://www.wipo.int/export/sites/www/meetings/ 19. UNESCO, “Special Issue n°5 : Countdown to MONDIACULT,” August 2022, https://
en/docs/ifla.pdf. articles.unesco.org/en/articles/special-issue-ndeg5-countdown-mondiacult.
6. See, e.g., Saving Ukrainian Cultural Heritage Online (SUCHO), https:// 20. SDG indicator 16.10.1, https://unstats.un.org/sdgs/metadata/
www.sucho.org/ and #NEWPALMYRA, https://newpalmyra.org/. ?Text&Goal=16&Target=16.10.
7. UNESCO, “UNESCO Highlights Climate Change Threats to Cultural Property in 21. SDG Indicators — SDG Indicators, https://unstats.un.org/sdgs/metadata/
Kiribati,” SDG Knowledge Hub | IISD, January 2012, http://sdg.iisd.org/news/unesco- ?Text=&Goal=11&Target=11.4.
highlights-climate-change-threats-to-cultural-property-in-kiribati/. 22. UNESCO, “Cutting Edge | Culture: the bedrock of sustainable development,”
8. Dom Phillips, “Brazil museum fire: ʻincalculableʼ loss as 200-year-old Rio institution November 2021, updated April 2022, https://www.unesco.org/en/articles/cutting-edge-
gutted,” The Guardian, September 2018, https://www.theguardian.com/world/2018/sep/ culture-bedrock-sustainable-development. (“Cultureʼs cross-cutting impact in
03/fire-engulfs-brazil-national-museum-rio. contributing to sustainable development across policy domains has been recognized for
9. Nora McGreevy, “Why the Cape Town Fire Is a Devastating Loss for South African over 40 years.”). See also: UNESCO, “Key Challenges,” https://www.unesco.org/en/key-
Cultural Heritage,” Smithsonian Magazine, April 20, 2021, https:// challenges. (“By sharing our common humanity, with increased knowledge and moral
www.smithsonianmag.com/smart-news/cultural-heritage-historic-library-destroyed- solidarity, we can find solutions to the pressing issues of our time”).
south-africa-blaze-180977539/ 23. Loic Tallon, “Creating Access beyond metmuseum.org: The Met Collection on
10. Agence France-Presse, “Easter Island fire causes ʻirreparableʼ damage to famous Wikipedia,” The Metropolitan Museum of Art, February 2018, https://
moai statues,” The Guardian, October 2022, https://www.theguardian.com/world/2022/ www.metmuseum.org/blogs/now-at-the-met/2018/open-access-at-the-met-year-one.
oct/07/easter-island-fire-causes-irreparable-damage-to-famous-moai-statues. 24. Alice White, “Images from Wellcome Collection pass 1.5 billion views on Wikipedia,”
11. See also UNESCO, “Culture and Climate Change,” https://www.unesco.org/en/ December 2021, https://stacks.wellcomecollection.org/images-from-wellcome-
culture-and-climate-change. collection-pass-1-5-billion-views-on-wikipedia-ee9663b62bef.
12. Ana Lazarova, “The EU Copyright Reformʼs great disservice to free use for 25. See, e.g.: Melissa Terras, “Opening Access to collections: the making and using of
educational purposes,” Europeana Pro, July 2021, https://pro.europeana.eu/post/the-eu- open digitised cultural content,” Emerald Insight,September 2015, https://
copyright-reform-s-great-disservice-to-free-use-for-educational-purposes. www.emerald.com/insight/content/doi/10.1108/OIR-06-2015-0193/full/html; Sesana E,
13. Office of the High Commissioner for Human Rights, Special Rapporteur in the Field Gagnon AS, Bertolin C, Hughes J. “Adapting Cultural Heritage to Climate Change Risks:
of Cultural Rights, “A cultural rights approach to heritage,” https://www.ohchr.org/en/ Perspectives of Cultural Heritage Experts in Europe.” Geosciences. 2018; 8(8):305. https://
special-procedures/sr-cultural-rights/cultural-rights-approach-heritage. doi.org/10.3390/geosciences8080305, https://www.mdpi.com/2076-3263/8/8/305 ; and
14. This was first formulated by the participants of the Creative Commons Summit 2013 Mia Ridge, “From Tagging to Theorizing: Deepening Engagement with Cultural Heritage
in Buenos Aires. See Timothy Vollmer, “Supporting Copyright Reform, Creative through Crowdsourcing,” October 2013, Curator: The Museum Journal - Wiley Online
Commons,” October 2013, https://creativecommons.org/2013/10/16/supporting- Library, https://onlinelibrary.wiley.com/doi/abs/10.1111/cura.12046, among many other
copyright-reform. examples.
15. UNESCO, “Culture for Development Indicators — Methodology Manual,” Heritage, 26. Julia Fallon and Pablo Uceda Gomez, “The missing decades: the 20th century black
2014, p. 130, https://en.unesco.org/creativity/sites/creativity/files/ hole in Europeana,” Europeana Pro, November 2015, https://pro.europeana.eu/post/the-
cdis_methodology_manual_0_0.pdf https://en.unesco.org/creativity/sites/creativity/ missing-decades-the-20th-century-black-hole-in-europeana.
20
NOTES
27. For example, Amazon erased e-books from usersʼ personal libraries, see: Brad Stone, association.org/2022/10/25/the-uffizi-vs-jean-paul-gaultier/.
“Amazon Erases Orwell Books From Kindle Devices,” The New York Times, July 2009, 33. See, e.g., Van Gogh Museum, Use and Permissions of Collection Images, https://
https://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=0. In www.vangoghmuseum.nl/en/about/organisation/terms-and-conditions/use-and-
2010, Sony discontinued the Broad Band eBook (BBeB) format, see: The National permissions-of-collection-images.
Archives, “Details for: Broad Band eBook LRF”, http://www.nationalarchives.gov.uk/ 34. Natalia Mileszyk, “Donʼt bury Chopinʼs legacy under a mountain of IPRs,” Communia,
PRONOM/fmt/518. In 2011, Microsoft discontinued the LIT format, see: Dan Price, “The August 2016, https://communia-association.org/2016/08/04/dont-bury-chopins-legacy-
Different Ebook Formats Explained: EPUB, MOBI, AZW, IBA, and More,” Make Use Of, July mountain-iprs/.
2018, https://www.makeuseof.com/tag/ebook-formats-explained/. In 2012, Amazon 35. See for example the language of Article 14 of the Directive (EU) 2019/790 on
discontinued the Mobipocket format. In 2020, Google announced that it would copyright and related rights in the Digital Single Market, https://eur-lex.europa.eu/legal-
discontinue Readium, Readium, “Releases,” https://readium.org/development/releases/. content/EN/TXT/HTML/?uri=CELEX:32019L0790&from=EN#d1e822-92-1. See also
See also Amy Kirchhoff and Sheila Morrissey, “Preserving eBooks,” DPC Technology Alexandra Giannopoulou, “The New Copyright Directive: Article 14 or when the Public
Watch Report 14, June 2014, https://www.dpconline.org/docs/technology-watch- Domain Enters the New Copyright Directive,” Kluwers Copyright Blog, June 2019, http://
reports/1230-dpctw14-01/file and Stefan Hein, Tobias Steinke. “DRM and digital copyrightblog.kluweriplaw.com/2019/06/27/the-new-copyright-directive-article-14-or-
preservation: A use case at the German National Library.” In Serena Coates, Ross King, when-the-public-domain-enters-the-new-copyright-directive/.
Steve Knight, Christopher A. Lee 0001, Peter McKinney, Erin O'Meara, David Pearson, 36. See Wallace, Andrea and Euler, Ellen, “Revisiting Access to Cultural Heritage in the
editors, Proceedings of the 11th International Conference on Digital Preservation, iPRES Public Domain: EU and International Developments (February 1, 2020).” IIC -
2014, Melbourne, Australia, October 6 - 10, 2014. 2014, https://phaidra.univie.ac.at/view/ International Review of Intellectual Property and Competition Law 51, 823-855 (2020),
o:378120. https://ssrn.com/abstract=3575772 or http://dx.doi.org/10.2139/ssrn.3575772
28. See, Judith Bleiden, “Research Paper: The Accuracy of Rights Statements on 37. See, e.g., Brigitte Vézina, “Our Response To Canada's Copyright Term Extension
Europeana.eu,” Kennisland, February 2018, https://www.kl.nl/en/publications/research- Consultation,” Creative Commons, March 2021, https://creativecommons.org/
paper-the-accuracy-of-rights-statements-on-europeana-eu/, which demonstrates the low 2021/03/09/our-response-to-canadas-copyright-term-extension-consultation/.
accuracy level at which CC licenses and tools are applied to reproductions of public 38. See, e.g., LIBER, “LIBER Statement Regarding Out-Of-Commerce Works,” July 2022,
domain works and the negative impact on the public domain (“... the research on the https://libereurope.eu/article/liber-statement-regarding-out-of-commerce-works/ and
Europeana database shows that CC licenses are possibly used… to set conditions on the Register of Copright, “Orphan Works and Mass Digitization: A Report of the Register of
use of a work that is already freely available. Eventually the wrongful application of Copyrights, June 2015, “https://www.copyright.gov/orphan/reports/orphan-
Creative Commons licenses leads to copyfraud which limits reuse and harms the works2015.pdf (PDF). For existing resources to address the issue of orphan works, see
underlying ideas behind the purpose of the Creative Commons licenses”). e.g., Europeana, ARROW: https://pro.europeana.eu/project/arrow and EnDOW Diligent
29. See, e.g. Eleonora Rosati, “ʻLe Journal dʼAnne Frankʼ: sufficiently distinctive to be a Search Publications, https://diligentsearch.eu/publications/.
trade mark, says OHIM Fourth Board of Appeal,” The IPKat, 2016, https:// 39. Cornell University Library, “Copyright Term and the Public Domain in the United
ipkitten.blogspot.com/2016/01/le-journal-danne-frank-sufficiently.html. States,” last updated January 2022, https://guides.library.cornell.edu/
30. See, e.g., Doug McCarthy, Andrea Wallace and Tala Rahal, “Hawking Hogarth - A ld.php?content_id=63800150 and Christina Angelopoulos, “The Myth of European Term
playful excursion into the future of open access to digital collections in the UK,” Keynote Harmonisation: 27 Public Domains for the 27 Member States,” IVIR, 2012, https://
presentation to Icepops 2022, September 2022, https://docs.google.com/presentation/d/ www.ivir.nl/publicaties/download/IIC_2012_5.pdf (PDF).
1tp8Yp3MIWZTFdXMmgNnhacv4w3sc0P0hVL9cQuimS4A/ 40. Flynn, Jacob and Giblin, Rebecca and Petitjean, Francois, “What Happens When
edit#slide=id.g9e7aee9d3b_0_4. Books Enter the Public Domain? Testing Copyrightʼs Underuse Hypothesis Across
31. See, e.g., Michael Weinberg, “The Neues Museum is claiming copyright over 3D- Australia, New Zealand, the United States and Canada” (June 10, 2019). University of New
printing files of the Nefertiti bust,” Slate, November 2019, https://slate.com/technology/ South Wales Law Journal, Vol. 42, No. 4, 2019, U of Melbourne Legal Studies Research
2019/11/nefertiti-bust-neues-museum-3d-printing.html and Cosmo Wenman, “A German Paper No. 878, https://ssrn.com/abstract=3401684 .
Museum Tried To Hide This Stunning 3D Scan of an Iconic Egyptian Artifact. Today You 41. European Commission, Orphan works – Frequently asked questions, October 2012,
Can See It for the First Time,” Reason, November 2019, https://reason.com/2019/11/13/a- https://ec.europa.eu/commission/presscorner/detail/en/MEMO_12_743.
german-museum-tried-to-hide-this-stunning-3d-scan-of-an-iconic-egyptian-artifact- 42. Julia Fallon and Pablo Uceda Gomez, “The missing decades: the 20th century black
today-you-can-see-it-for-the-first-time/, as cited in Claudio Ruiz and Scann, hole in Europeana,” Europeana Pro, November 2015, https://pro.europeana.eu/post/the-
“Reproductions of Public Domain Works Should Remain in the Public Domain,” Creative missing-decades-the-20th-century-black-hole-in-europeana.
Commons, November 2019, https://creativecommons.org/2019/11/20/reproductions-of- 43. See, e.g, Pollock, Rufus, “Forever Minus a Day? Calculating Optimal Copyright Term”
public-domain-works/. (July 19, 2009). Review of Economic Research on Copyright Issues, Vol. 6, No. 1, pp. 35-60,
32. Justus Dreyling, Teresa Nobre and Brigitte Vézina, “The Uffizi vs. Jean Paul Gaultier: 2009, https://ssrn.com/abstract=1436186; Clark, A., & Chawner, B. (2014). “Enclosing the
A Public Domain Perspective,” Communia, October 2022, https://communia- public domain: The restriction of public domain books in a digital environment.” First
21
NOTES
Monday, 19(6). https://doi.org/10.5210/fm.v19i6.4975. 58. For example, in Portugal, Montenegro, Belgium and Kuwait, copyright law states
44. Australian Government, Productivity Commission, “Intellectual Property that (almost) all exceptions and limitations are protected from contract override (see
Arrangements - Inquiry report” (2016), Finding 4.1, p. 131, https://www.pc.gov.au/ IFLA, “Protecting Exceptions Against Contract Override,” 2019, https://www.ifla.org/wp-
inquiries/completed/intellectual-property/report/intellectual-property.pdf (PDF). content/uploads/2019/05/assets/hq/topics/exceptions-limitations/documents/
45. On controlled digital lending, see Library Futures, https://www.libraryfutures.net. contract_override_article.pdf, p. 3). See also the policy position of the American Library
46. See, e.g., inDICEs, “inDICEs policy brief: Towards community-focused cultural Association, Copyright | Advocacy, Legislation & Issues (https://www.ala.org/advocacy/
heritage institutions in the digital realm,” November 2022, https://docs.google.com/ copyright) and Teresa Nobre, “Implementing the new EU protections against contractual
document/d/1BJcqfdbB5lDHQt926YDNpAIwoNjWo8IniOM4PvzFz2k/edit# and technological overrides of copyright exceptions,” Communia, 2019, https://
(Recommendation area #3). www.communia-association.org/2019/12/09/implementing-new-eu-protections-
47. Knowledge Rights 21, “CIPPM to deliver research into open norms as part of the contractual-technological-overrides-copyright-exceptions/.
Knowledge Rights 21 Programme,” https://www.knowledgerights21.org/news-story/ 59. Wakaruk, A., Gareau-Brennan, C., Pietrosanu, P. (2021). “Introducing the Copyright
cippm-to-deliver-research-into-open-norms-as-part-of-the-knowledge-rights-21- Anxiety Scale.” Journal of Copyright in Education and Librarianship, 5(1),1–38, at p. 3.
programme/. https://doi.org/10.17161/jcel.v5i1.15212 © 2021 (CC BY-NC 4.0). (Citations omitted)
48. See André Houang, “Creative Commons Copyright Platform Working Group on User 60. For example: Pictoright v Stadsarchief Rotterdam (2014), https://
Rightsʼ Position Paper,” November 2021, Creative Commons We Like To Share Medium, uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHAMS:2017:523; Stichting Cors
https://medium.com/creative-commons-we-like-to-share/working-group-on-user-rights- van Bennekom v. IISG (2015), https://uitspraken.rechtspraak.nl/
position-paper-9c5e589f1c9b. inziendocument?id=ECLI:NL:RBAMS:2015:3231; and Voet/Roovers v. Erfgoed Leiden
49. International Council of Archives, “Climate Change, Copyright, and Cultural (2020), https://www.erfgoedleiden.nl/nieuws/1170-online-plaatsen-oude-foto-s-
Heritage,” June 2020, https://blog-ica.org/2020/06/12/climate-change-copyright-and- gerechtshof-den-haag-vernietigt-
cultural-heritage/. uitspraak#:~:text=Roovers%20overleed%20in%202000.,75%20per%20foto%20moest%2
50. See e.g., The British Library, “Why can't I access this resource online?,” https:// 0betalen.
www.bl.uk/help/explore-item-not-available. See also, EIFL, “The 'TU Darmstadtʼ 61. See e.g., Coad, Samuel, “Digitisation, Copyright and the GLAM Sector: Constructing a
copyright case neatly explained,” July 2016, https://www.eifl.net/news/tu-darmstadt- Fit-For-Purpose Safe Harbour Regime” (September 6, 2019). (2019) 50 VUWLR 1, Victoria
copyright-case-neatly-explained. University of Wellington Legal Research Paper, Student/Alumni Paper No. 13/2019,
51. See, WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Available at SSRN: https://ssrn.com/abstract=3449037 .
Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty), 2013, https:// 62. Callison, Camille et al. 2021. “Engaging Respectfully with Indigenous Knowledges:
www.wipo.int/marrakesh_treaty/en/. Copyright, Customary Law, and Cultural Memory Institutions in Canada.” KULA:
52. EIFL, “Statements to WIPO SCCR on how information is denied when copyright Knowledge Creation, Dissemination, and Preservation Studies 5(1). https://doi.org/
exceptions stop at the border,” November 2016, https://www.eifl.net/resources/ 10.18357/kula.146.
statements-wipo-sccr-how-information-denied-when-copyright-exceptions-stop-border. 63. For more information on the ethics of open sharing, see Josie Fraser, “CC Working
53. Also referred to as “technological protection measures.” Group 4 — Beyond Copyright: the Ethics of Open Sharing,” Creative Commons We Like to
54. See e.g., Dombrowski, Quinn, Rachael Samberg, and Erik Stallman. “DSC #14: Hello, Share Medium, 2021, https://medium.com/creative-commons-we-like-to-share/beyond-
DMCA Exemption.” The Data-Sitters Club, May 2022. https://datasittersclub.github.io/site/ copyright-the-ethics-of-open-sharing-a495bb95569d. See also, inDICEs, “inDICEs policy
dsc14.html. brief: Towards community-focused cultural heritage institutions in the digital realm,”
55. Authors Alliance, “Authors Alliance Files Comment in Support of New Exemption to November 2022, https://docs.google.com/document/d/
Section 1201 of the DMCA to Enable Text and Data Mining Research,” December 2020, 1BJcqfdbB5lDHQt926YDNpAIwoNjWo8IniOM4PvzFz2k/edit# (Recommendation area #5).
https://www.authorsalliance.org/2020/12/15/authors-alliance-files-comment-in- 64. The CARE Principles for Indigenous Data Governance make it possible to adopt a
support-of-new-exemption-to-section-1201-of-the-dmca-to-enable-text-and-data- respectful and careful approach to opening up collections and enrich them with more
mining-research/. profound meaning based on an acknowledgement of power differentials and historical
56. IFLA, “Protecting Exceptions Against Contract Override,” 2019, https:// contexts. See: https://www.gida-global.org/care. Local Contexts, inspired by Creative
www.ifla.org/wp-content/uploads/2019/05/assets/hq/topics/exceptions-limitations/ Commons, is designed to alert users to community protocols regulating access, use and
documents/contract_override_article.pdf (PDF). reuse, and gives Indigenous communities autonomy and decision-making power to set
57. See Giannoumis G.A., Beyene W.M. (2020) Cultural Inclusion and Access to the terms for sharing. The policies in place at Auckland War Memorial Museum (discussed
Technology: Bottom-Up Perspectives on Copyright Law and Policy in Norway. In: Antona here with Open GLAM on Medium), Museum of New Zealand Te Papa Tongarewa, the
M., Stephanidis C. (eds) Universal Access in Human-Computer Interaction. Applications Smithsonian Open Access Values Statement, and the Australian Museum of Applied Arts
and Practice. HCII 2020. Lecture Notes in Computer Science, vol 12189. Springer, Cham. and Sciences are good examples of balanced institutional stances to address issues
https://doi.org/10.1007/978-3-030-49108-6_25. around sensitive content. See also: https://repository.ifla.org/bitstream/
22
NOTES
123456789/1720/1/ifla-journal-47-3_2021.pdf. Acknowledgements
65. For details on the Deep Forest case, see Brigitte Vézina, “Are they in or are they out?
Traditional cultural expressions and the public domain: implications for trade” in
Christophe B Graber, Karolina Kuprecht & Jessica C Lai, eds, International Trade in This guide was written by the Creative Commons community. Special thanks goes to the
Indigenous Cultural Heritage: Legal and Policy Issues (Cheltenham, UK: Edward Elgar, coordination team: Brigitte Vézina, Director of Policy and Open Culture, Creative
2012) 196 at 197. Commons; Maarten Zeinstra, CC Netherlands; Shanna Hollich, CC USA; Emine Yildirim, KU
Leuven and Camille Françoise, formerly Open Culture Manager, Creative Commons.
Layout by Connor Benedict, Open Culture Coordinator at Creative Commons.
Images (all cropped)
Community contributors (in alphabetical order):
• The Artist's Garden at Saint-Clair by Henri-Edmond Cross, The Metrolplitan Museum;
Public Domain, https://images.metmuseum.org/CRDImages/dp/original/ Susanna Anas (CC Finland); Mohammed Awal Alhassan (Communications Manager,
DP805782.jpg Dagbani, Wikimedians User Group); Jennifer Bauer; Deborah De Angelis (CC Italy); Maria
Drabczyk (Centrum Cyfrowe); Giovanna Fontenelle (General Coordinator, CC Brasil +
• Image from “Amérique du Sud. Trois ans chez les Argentins ... Illustrations de Riou, Program Officer, GLAM and Culture, Wikimedia Foundation); Josie Fraser (National Lottery
etc” by Romain dʼAurignac, p. 367, The British Library; Public Domain, https:// Heritage Fund); Alison Guzman (Director of Development, MHz Foundation / Curationist);
explore.bl.uk/primo_library/libweb/action/ Purity Kavuri Principal (Librarian, Kenya National Library Service); Ellen van Keer
search.do?cs=frb&doc=BLL01014871143&dscnt=1&scp.scps=scope:(BLCONTENT)&fr (meemoo); Ana Lazarova (CC Bulgaria); Melissa Levine (Director, Copyright Office,
bg=&tab=local_tab&srt=rank&ct=search&mode=Basic&dum=true&tb=t&indx=1&vl(fr University of Michigan Library); Suzanna Marazza; Marta Malina Moraczewska; George
eeText0)=014871143&fn=search&vid=BLVU1nson; Oates (Flickr Foundation); Ngozi Perpetua Osuchukwu (Librarian/Coordinator, Wikimedia,
• Ballet Dancers by Henri de Toulouse-Lautrec, Art Institute Chicago; CC0, https:// Anambra Network); Katie Prichard; Abigail Ricklin; Adam Rountrey; Sadik Shahadu (MHz
www.artic.edu/artworks/9148/ballet-dancers Foundation / Curatinist); Sandra Soster (GLAM and Culture, Wiki Movimento Brasil); Alek
• 12th Century Chess Set, The Metropolitan Museum; Public Domain, https:// Tarkowski (Open Future); Andrea Wallace (University of Exeter); Michael Whitchurch (OER
www.metmuseum.org/art/collection/search/452204 & Media Literacy Librarian, Brigham Young University); Björn Wijers (Burobjorn.nl);
Stephen Wyber (IFLA); Jennifer Zerkee (Copyright Specialist, Simon Fraser University).
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