Mass digitization and making available online of copyrighted works in Europe: Comparison of French and Norwegian approaches

Author: Oleksandr Bulayenko (CEIPI – Université de Strasbourg)

Digitation of cultural heritage with the aim of preservation and making it available online is one of important public policy objectives in Europe. Legal mechanisms facilitating large-scale digitisation of orphan and out-of-commerce works reduce costs for public institutions and may pave a way to a second commercial live of copyrighted works supplying e-markets with new offer. This paper analyses and compares French and Norwegian approaches to mass digitisation with a view of assessing their pros and cons.

European legislative framework for facilitation of mass digitisation through dealing with the issue of orphan works is represented by the EU Orphan Works Directive, complemented by a Memorandum of Understanding on the digitisation of out-of-commerce works agreed among some major stakeholders. Recital 4 of the Directive explicitly provides member states with a possibility to introduce national solutions to tackle broader mass digitisation issues other than the use of orphan works and Recital 24 specifically mentions the collective licenses and other collective management-based arrangements for the same purpose. The latter solution is also referred in the Memorandum. France and Norway are the countries that rely on the aforementioned possibilities for introduction (in France) or maintenance (in Norway) of additional national tools for mass digitisation and making available online of copyrighted works, outside the mechanism provided by the Orphan Works Directive.

In March 2012, France adopted its law on the digital use of out-of-commerce books of 20th century, providing for a statutory mechanism for transfer of exercise of the reproduction and communication to the public rights in digital form of certain books. The solution relied on a unique form of collective management of copyright characterized by a grant of exclusive authorisations, uncommon for collective management. The legitimacy of the law has been disputed since its adoption. In February 2014, the French Constitutional Council (Conseil constitutionnel) established that the mechanism complied with the Constitution, as a limitation to the rights of rightholders was not disproportionate to the pursued objectives of general public interest. Following persistent opposition, 6 March 2015 the Council of State (Conseil d’Etat) decided to submit to the Court of Justice of the European Union (CJEU) the question of whether the mechanism introduced by the law for use of out-of-commerce books implemented though collective management is compatible with the Information Society Directive. While struggling with the legitimacy of the national solution, France passed a law 20 February 2015 transposing the Orphan Works Directive. The paper will describe in detail the unique but contested French mechanism for digitisation of out-of-commerce books as well as the manner in which the Directive is being transposed.

Unlike French law-makers, Norwegian legislators, while still working on the transposition of the Orphan Works Directive, did not need to provide for a special legal instrument for dealing with the issues of orphan and out-of-commerce works on the national scale. The extended collective management of copyright is a known tool for dealing with the issue of outsiders and quite some research has already been done on this approach of the Nordic countries. This paper will go a step further by looking closer at the reliance on the aforementioned legislative mechanism for implementation of the national digitization project, Bookshelf (Bookhylla). The paper will provide analysis of the two contracts regarding digital dissemination of books between the National Library of Norway and Kopinor, the collective management organisation representing rightholders: pilot contract of 23 April 2009 (expired 31 December 2011) and the currently valid contract of 30 September 2012. The analysis will be strengthened by the feedback of the parties to the contracts, collected through meetings with their representatives during a research visit to Norway.

The paper will conclude by some comparative remarks about the two national solutions and about their coexistence.

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