Social Structures
Author: Marta Arisi, is part of the University of Trento team working for the reCreating Europe Project focusing on GLAM.
Open cultural data can be considered an umbrella term referring to anytime data from Cultural Heritage Institutions (“CHIs”) is made available without restrictions, e.g., thanks to open licensing (as the Creative Commons). It often refers to online resources that contain descriptions, metadata, images, etc. Thus, open cultural data is also relevant to the field of digitization of cultural heritage.
“Open” stands for the possibility to access the content freely, and- to re-use it. While there is not an accepted definition, useful examples may come from the Open Data Charter or the definition of openness proposed by the Open Knowledge Foundation. Some projects even address the context of CHIs, such as OpenGLAM.
There are different types of restrictions to be considered, including those relating to accessibility. Barriers may descend from how a website is designed, the characteristics of data (e.g., low resolution images, incomplete information, lack of interoperability), licensing agreements, or technological protection measures limiting the actions that users can perform on the website. This is a legal conundrum, but two legal frameworks especially concur to shape the dichotomy between “open” versus “closed” data, at least in the European Union (EU) legal system: these are copyright law and public sector information law.
Cultural Heritage, Copyright Law and the Public Domain
Under copyright law, ideas (including data!) cannot be protected, and exclusive rights have limited duration in time – after the term expires, works of authorship “fall” into the so-called public, or free, domain. This means that not all works considered to be part of Cultural Heritage should be deemed protected by copyright. Why discussing copyright law then?
The answer is that, although it is the subject of much controversy, when it comes to the digitization of cultural heritage, copyright law rules are often applied to protect the “digital version” of the work. Amongst different media, the first example that comes to mind are photographs of paintings. Such photographs could be protected by copyright or related rights, resulting in limits to access and re-use.
Recently, Art. 14 of the Copyright Directive in the Digital Single Market of 2019 (hereinafter “CDSMD”) introduced a rule excluding copyright or related rights on the reproductions of works of visual arts in the public domain. This rule favours open cultural data, but it remains limited to visual arts and still subject to the condition that the reproduction is not “original” (which, according to the originality standard in EU copyright law, means it is “the author’s own intellectual creation”).
Overall, limitations on access to and re-use of public domain works remain frequently imposed through wrongful claims of exclusive rights – with some authors referring to this phenomenon as “copyfraud”. However, this unfortunate “erosion” of public domain is challenged by several experts and stakeholders, as in the Public Domain Manifesto or in the Communia policy recommendations.
Copyright exceptions and limitations
CHIs are provided a few exceptions for reproducing and making copyrighted works available to the public. Art. 6 CDSMD allows the preservation of works permanently present in CHI’s collections. Additionally, there are rules for works that are out-of-commerce (see Art. 8 CSDM) or that qualify as orphan works (see the Orphan Works Directive of 2012). Moreover, the controversial Art. 3 CDSMD, which aims to regulate text and data mining, would expressly allow CHIs to carry out such activities on the works to which they have lawful access to, for scientific research purposes.
While these changes are to be welcomed, there is still work to do. As explored by reCreating Europe Work Package n. 5, dedicated to Galleries, Libraries, Archives and Museums (“GLAM”), and especially in the twin reports on Libraries and Archives, and on Galleries on Museums, the implementation of such exceptions is sometimes fragmented across Member States. This impedes further harmonization and legal certainty is often lacking. As a result, these rules can be difficult to follow for CHIs who lack the resources necessary to navigate the framework.
Public Sector Information Law
Recently, the so-called Open Data Directive of 2019 entered into force. This has included research data in the scope of the EU Public Sector Information rules and has embodied many principles of Open Data, as the openness by design and default. But already in 2013, the EU Public Sector Information Directive of 2003 was amended to apply to documents held by libraries, museums and archives.
This change strengthened the opportunity to digitize cultural resources for the objectives of the Digital Single Market (it should be remembered that the area of culture cannot be framed amongst the European Union’s exclusive competences!). The principle is indeed that documents should be made available for re-use for commercial and non-commercial purposes, without imposing specific conditions, at no charge, and preferably in open formats. Still, in addition to the limits and exemptions that come into play in presence of intellectual property rights or personal data protection, special measures for CHIs cover the possibility to impose charges for re-use (although limited), and to conclude exclusive agreements with private parties for the digitization of cultural resources.
Cultural Heritage in the age of data
As data processing technologies flourish and the EU embarks on its Data Strategy, the recent Recommendation of November 2021 (following the Recommendation on online accessibility of cultural material and digital preservation of 2011) features the project of creating a Common Data Space for the Cultural Heritage.
Different provisions promote Member States’ actions to use data and technology to make the cultural sector, including tourism, thrive, and enhance the role of Europeana and national intermediaries. In this regard, provision No. 18 of the Recommendation is particularly important as it affirms that policies adopted by Member States should seek that data resulting from publicly funded digitization projects become and stay FAIR – as in FAIR Data. Although not binding, these contents will certainly need to be taken into account in both the implementation and application of the Copyright and PSI rules.
The topic ultimately brings us to reflect on access and re-use of data from a broader perspective. The interplay with other EU initiatives for the Data Strategy, as the proposals of a Data Act and a Data Governance Act, certainly requires deeper study. Indeed, the relation of copyright and access and re-use of data, as well the impact in the field of scientific research, have been recently addressed by a few studies prepared for the European Commission, and published in August 2022.
A complex puzzle
The ones we tried to explain are only a few pieces of the complex puzzle that informs the practices of open cultural data. Against this backdrop, there is an emerging need for a clearer set of rules that would allow CHIs to use open data to fulfil their mission, as well as practical tools. This is one of the goals pursued by the reCreating Europe Interim Guidelines and FAQs for GM, soon to be adjourned in a final version, designed to offer CHIs some easy-to-read information about laws regulating the digitization of cultural heritage.
At present, the challenge of open cultural data is worth greater attention, given that disruptive events are changing the way we access cultural content – i.e., through Internet and navigating datasets, as it happened during the peaks of the Coronavirus pandemic. Even more importantly, with increasingly pressing reflections on data governance and artificial intelligence, we have come to understand that open cultural data contribute to shape the future of the content itself: its circulation and re-use. As it was emphasized during many of the inspiring talks of the GLAM@Home reCreating Workshop in Trento deciding which data will be available – and how to make it available – is a choice for the future, and often a political one.
Marta Arisi is part of the University of Trento team working for the reCreating Europe Working Package n. 5 focusing on GLAM. The project has received funding under the European Union’s Horizon 2020 Research and Innovation programme (grant agreement No. 870626). For more information visit https://www.recreating.eu/.