Authors: Maurizio Borghi (Bournemouth University) and Marcella Favale (Bournemouth University)
Mass digitisation and online publication of archive and library materials, as well as museums artefacts, offers unprecedented dissemination channels for cultural items that otherwise would remain scarcely known and certainly unexploited. At the same time, digitization may be severely restricted due to the real or potential subsistence of copyright and related rights. In fact, a vast amount of recent cultural heritage items are “orphan works”, namely material for which the copyright owner is either unknown or cannot be traced. The EU Orphan Works Directive (2012/28/EU), which has been implemented by most Member States by the end of 2014, has introduced an exception for cultural institutions, intended to facilitate digitization and dissemination of material in their possession. However, under the provisions of the Directive, right clearance remains overly expensive, time-consuming and, ultimately, a critical roadblock for cultural institutions. This is because the Directive is based upon the principle that, before a work is declared to be an orphan, the prospective user ought to carry out a “diligent search” of the rightholders. However, compliance with this legal requirement involves extremely high costs, which may not be affordable to cultural institutions, especially in times of sever budget restrictions. The diligent search requirement, upon which the whole European policy on orphan works is premised, represents the bottleneck to the future development of mass digitization in Europe.
The paper presents a possible solution to the “diligent search bottleneck”. While the problem of clearing rights has been so far addressed in a “centralized” way, the paper illustrates a de-centralized approach to right clearance, based on public participation and on crowd-sourcing certain phases of the diligent search process. The concept of building upon collective intelligence to perform legally binding searches of information has been already successfully applied in patent law. Crowd-sourced systems of prior art searching have been used both by patent offices to save time and improve the quality of the examination and by NGOs that oppose patenting in certain fields, to search prior art capable of destroying the novelty of patent applications. The paper applies a similar concept to diligent searches of copyright holders in the context of mass digitization of cultural heritage. It discusses how a decentralized system of diligent search can be designed in order to transform a diluted and dispersed information into a reliable and legally valid source to determine the copyright status of works. Finally, it makes the point the future of mass digitization in Europe will largely depend on wider public participation and involvement of European citizens.
The paper is the first output of a collaborative project funded under “Heritage Plus”, the programme launched by agencies of 15 European countries and the European Commission as part of the Joint Programming Initiative in Cultural Heritage and Global Change.