Digitisation audiovisual materials heritage Institutions: Models for licenses and compensations

The Images for the Future project aims to preserve, digitise and make accessible online a large amount of audio-visual material. However digitising and making available online the material is still associated with major copyright challenges. 

While digitising for preservation purposes has been permitted since 2004 under strict conditions in accordance with Art. 16n of the Dutch Copyright Act, for the reutilisation of digitized material (e.g. on websites or by means of retransmission by radio or television) permission must be sought and obtained from large numbers of rights holders. For large digitisation projects, such as Beelden voor de Toekomst (Images for the Future), this means a rights clearance operation of dizzying proportions. In addition, digitisation projects face great uncertainty with regard to the level of the copyright license fees due. Given this background the Images for the Future consortium has commissioned the Institute for Information Law (hereinafter IViR) to investigate models for licenses and fees for mass digitisation projects. 

Since October 2010 David Korteweg and Professor Bernt Hugenholtz of the IViR have undertaken research into the following two questions:

  1. How can the problem of rights management encountered by mass digitisation projects be efficiently solved?
  2. On which basis can a reasonable fee for use of digitised material be calculated, taking into account the rights of right-holders to reasonable remuneration and the interest of the general public in an complete, accessible and affordable digital archive?

 

With the publication of the research report (summary available in English the full report in Dutch can be obtained from here) the Images for the Future consortium stresses the need to adopt the existing copyright framework applicable to mass digitisation projects in the Netherlands.

Rights clearance
Regarding the issue of rights clearance, the researchers note that the current debate about so-called 'orphan works' obscures a much larger and deeper problem. They argue that the licensing problem encountered by large-scale digitisation projects does not so much consist in the untraceable nature of a number of rights-holders, but rather in the huge number of rights holders whose consent must be obtained. 

To solve this problem the researchers are proposing to consider two legislative measures, that would ensure that the consent of rights holders can be obtained effectively through Collective Management Organizations (CBOs): 

  1. The instrument of compulsory collective management of rights, wherein it is mandated that the rights necessary for undertaking mass-digitisation projects by heritage institutions can only be licensed collectively.
  2. Extended collective licensing, wherein voluntary collective management schemes are extended in their scope so that they also apply to rights-holders not directly represented by a Collective Rights Management organisation. 

Both measures reduce the ability of rights holders to exercise their rights individually. The researchers therefore advocate opt-out arrangements for individual rights-holders. They also propose to limit the scope of such a legislative measure, by applying it only to heritage institutions with a public task and by excluding works until several years after the first publication. 

Level of fees: actual and expected use
Regarding the level of remuneration fees, the researchers identified two different approaches. Fees based on actual use by end users of the digital material made ​​available, or fees based on the expected usage by end users and the expected (social) value of that use. 

The researchers have found no clear objective criteria for determining fees. They argue that actual fees will always be the result of negotiations between heritage institutions and rights holders (represented by CBOs). However, the research report identifies a set of principles for determining licensing fees that meet the requirements of both right holders and heritage organizations. They express a strong preference for licenses with indefinite or long-term duration, and they argue that fees should consist of a variable component (based on volume of use) and a fixed component (based on the type of use). With regard to the last element, the social value of access to digitised cultural heritage needs to be taken into account. 

The investigation of existing licensing arrangements for mass digitisation projects, suggests that parties often choose to relate compensation to the amount of digital material that is made ​​available by the heritage institution and that expected or actual use of the digitised works is not (yet) included in the calculation of fees. 

In this context, the researchers warn that fees established as part of on-going pilot projects could start to live a life of themselves: Although these agreements have the character of pilot projects, it cannot be excluded that the fees established as part of these projects will be regarded as customary for the ‘market’ of mass digitisation projects and will as such form the basis for calculations undertaken in future projects . The researchers warn that both heritage institutions and government regulators need to pay close attention to the standard setting function of 'early' licensing arrangements.