On Friday, 27th of April 2012, the first Open Glam workshop was organized in Paris by the Open Knowledge Foundation and Wikimedia France. The aim of this first workshop was to gather together a variety of people interested in discussing the problems of Open Cultural Data, with the objective of creating a list of recommendations to be later incorporated into a white paper.
We had the pleasure to welcome an eclectic audience composed of lawyers, researchers, representatives of major cultural institutions – such as the National Library of France, Centre Pompidou, Cité des Sciences – as well as various spokesmen from the Ministry of Culture.
The workshop began with a keynote by Lionel Maurel (scinfolex.wordpress.com), who provided a detailed analysis of the state of the art for Open Cultural Data in France.
He began by describing how the distinction between creative works (protected by copyright law) and data (protected by sui-generis rights) is getting increasingly blurry in the digital world. He then explained the importance of distinguishing between public data and cultural data – which has a special status under French law. While Article 10 of the 1978 Act introduces a generic right to the reuse of public data, Article 11 introduces an exception for educational institutions, or research and cultural institutions.
Although officially justified by the need to protect sensitive data or copyright information, Lionel criticized the cultural exception on two grounds:
- Article 13 of the 1978 Act already stipulates that personal or sensitive data can not be made available to the public without the consent of the data subject, or without having been anonymized.
- Article 10 of the same Act explicitly stipulates that any any work protected by copyright is not subject to the public data regime.
According to Lionel Maurel, the cultural exception is therefore an exception devoid of a proper foundation, but not devoid of any consequences. While Open Cultural Data is progressing abroad (cf. Europeana, the British Library, and the Harvard Library to name a few), in France, cultural institutions may, but are not obliged to make their data freely available on the national portal (data.gouv.fr).
The workshop continued with a panel discussion:
Remi Mathis (Wikimedia France) starts the discussion by presenting the public domain as a motor of creativity. Since culture in all ages is based on the reuse of prior works, the public domain is therefore essential for the development of culture in Europe and in the wider world.
Remi noted that, in the context of Wikimedia, the public domain affects several projects – such as Wikisource, for instance, which collects public domain texts. Since copyright owners could potentially oppose a particular use of their content, all texts and historical photographs available on Wikisource are – and must be in the public domain.
According to Wikimedia’s policies, a work is considered in the public domain when it is so both in the United States (where the servers are located) and in the country where it was created. The problem is that the public domain is a very ambiguous concept under French law, as it can only be defined in negative as to include (a) anything that is not considered a work of authorship, or (b) any work of authorship that is no longer protected by copyright law (except for moral rights which last forever).
The discussion continued with an intervention by Melanie Dulong de Rosnay (Communia), who presented the idea of introducing an Open Access obligation for public domain works.
The basic assumption is that the digitization of a work could give rise to a new right over the digital copy, allowing for the producer to impose limitations on the use of that copy. To date, this right is only a speculation which has not yet been recognized by any French court.
At European level, the Comité des Sages asked that any content digitized with public funding should be made freely available, with potential restrictions on commercial uses. The Communia association went further by requiring that digital reproductions of public domain works should also belong to the public domain and should therefore be freely available and usable without any kind of legal or technical restriction.
Given that this issue goes beyond the scope of the PSI Directive of 2003, Member States and institutions are however free to determine their own policies regarding the digital reproduction of public domain works.
Melanie suggested therefore to introduce a requirement that all digital reproductions of public domain works remain in the public domain and be therefore freely accessible and reusable to the extent that they have been digitized with public funds. She brings to the discussion the question whether this obligation should be limited to public funding, or whether it should also apply to private funding? Although the latter would be preferable, the private sector might be more reluctant to digitize works if it can no longer control the use of the digital copies generated. It should also be noted that civil society actually belongs to the private sector, and that such a requirement could therefore prevent the use of free licenses insofar as they would apply restrictions onto the public domain (a free license being less free than the absence of rights).
Benjamin Jean (lawyer) followed up, and presented the relationship between copyright law and free licenses — defined as a contract whereby an author licences his rights on a free and nonexclusive basis, for the whole duration of these rights. Originally designed for works protected by copyright law, free licenses began to be used on data after the introduction of a sui-generis right for databases. Specialized licenses have bene developed, such as ODbL by the Open Knowledge Foundation and the Open License from Etalab specifically designed for France.
The problem is that not many people properly understand these licenses and their use. If the goal is Open Data, it is first necessary to train and to educate people who create and disseminate data. Free licenses can enable the sharing and the reuse of data, but they are not sufficient as such. In order to achieve true Open Data, it must also be practically possible to access and reuse the data.
The main drawback is that only the rights holder may license data under a free license. In France, in the case of most works-for-hire (with the exception of software), it is thus necessary to first obtain permission from the employees, who hold the copyright to their creation. An exception exists for administrative staff, whose creations can be distributed freely, but only in a non-commercial context. This could be a problem to the extent that free licenses do not differentiate between commercial and non-commercial uses.
Finally, Benjamin suggested that even though free licenses represent a possible solution to promote Open Data, we should perhaps look back to the original intent of copyright law and modify the rules of the law so that the use of free licenses would no longer be necessary.
The panel discussion ended with the intervention of Agnès Simon (National Library of France), presenting an overview of the approach taken at the BNF for opening up their data.
After recalling that the cultural exception of the 1978 Act does not require libraries to freely disseminate their data, Agnès notes that, since the mission of the BNF is “to encourage the dissemination of knowledge “, Open Data was an obvious step to take.
Specifically, the BNF could choose between (a) entirely opening up the data, at the risk of providing incomplete or duplicate data, or (b) partially opening up the data to ensure its reliability and cleanliness. The BNF decided to make available to the public only part of its cultural data (see gallica.bnf.fr) – which can be freely re-used for non-commercial purposes, but whose commercial exploitation is subject to a fee.
Alongside this first phase, the BNF has also developed a series of technical means to permit and facilitate the non-commercial reuse of data, most of which is available in RDF format and licensed under the Open License of Etalab. The aim is to make this data more useful, by enabling users to access it directly through search engines, without passing through the BNF portal.
To conclude, Agnes pointed out that opening up the data was also seen as an opportunity by the BNF to achieve better internal and external alignment of their catalog, and, of course, to permit the largest dissemination and the widest reuse of their data.
The workshop continued with a brainstorming session aimed at identifying the various obstacles that GLAM institutions may encounter with regards to Open Cultural Data. The following points were identified:
▪ Lack of knowledge concernng:
- the concept of “Open Data”
- the eco-system in which GLAM institutions operate
- the related legal issues
▪ Legal uncertainty concerning:
- the legal status of digital reproductions
- copyright law: i.e. rights of the administrative staff and of the creators / contributors to databases (e.g. description of inventory)
- legal status of the content: fear to make available sensitive content, protected by copyright law or privacy law
▪ Economic Issues concerning:
- Financing: How to finance the digitization of data ?
- Compensation: How to offset the costs of the services with the benefits obtained ?
- Data reuse : Risk of conflicts with commercial exploitation by thirds parties
▪ Control problems:
- Lack of control over the data
- The issue of Data Integrity
- Control over the type of reuse: e.g. to avoid derogatory uses
▪ Technical Barriers:
- Costs of making available data
- Lack of ressource pooling
▪ Policy Issues:
- Lack of political will of the Ministry of Culture: Cultural System based on the maximization of intellectual property rights – which represents important economic issues
A follow-up event will be organised at the end of May in order to address those issues and eventually come up with a series of guidelines on how to resolve them in the French context.
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Primavera De Filippi
Adrian Pohl
trio3o
Joris Pekel
Melanie Dulong de Rosnay
Lotte Belice
Nicole Coleman