The Copyright in the Digital Single Market (CDSM) Directive aims to harmonise certain aspects of EU Member States’ copyright legislation, and has important provisions for digital cultural heritage. Eric Luth (Wikimedia Sverige) and Larissa Borck (Sörmlands museum) tell you more about the legislative changes that took effect in Sweden on 1 January 2023 as a result of the Directive transposition.
The transposition process
The CDSM Directive caused much controversy in Sweden when it was adopted in 2019. In a country which has been pioneering in internet usage and digitisation, the new related rights for press publishers and new liabilities for online sharing were met by much discontent. In the end, Sweden was one of few EU countries that voted no to the CDSM in the European Council.
Striving to develop a balanced law proposal, the Swedish government opted for a comprehensive and inclusive implementation process. About a hundred stakeholders were invited to give input, article by article. A large part of the stakeholders were, however, either collective management organisations (CMOs) or online sharing services. Wikimedia Sverige and a few others created a network of cultural heritage and research institutions as well as civil society and internet users, to balance this and get a stronger voice. This was an important way to build common knowledge and increase the impact of the legislation, paving the way for – among other things – a major win on article 14, often referred to as the ‘safeguarding of the Public Domain’.
Following the implementation, the Government launched a public inquiry that will review all exceptions and limitations in Swedish copyright law until November 2023.
Text and data mining (TDM)
The new TDM exception opens up new possibilities for the general public as well as research and cultural heritage institutions to make reproductions and extractions for the purposes of TDM. The Swedish implementation also opens up for TDM to be performed on ‘photographic images’, that is, images that do not meet the threshold of originality, but are protected via a related right in Swedish copyright law. Furthermore, the implementation makes it clear that cultural heritage and research institutions that are integrated parts of other establishments should be able to perform TDM under these exceptions.
Preservation of cultural heritage
Where the previous provisions only allowed public archives and libraries to copy any kind of work in their permanent collections for preservation purposes, the exception is now broadened to include all cultural heritage institutions. These are defined as public libraries and museums, archives as well as institutions dedicated to cultural heritage related to moving images and sound. It explicitly states that this exception overrides any contract stating otherwise. The updated section even includes computer software which was earlier excluded from copying for preservation purposes.
However, it is still only national and municipal archives as well as certain public and research libraries that are allowed to make copies of in-copyright works (except for computer software) for other reasons (such as research purposes).
Digital and cross-border teaching activities
Extended collective licences (ECLs) have a strong prevalence in Swedish copyright, unlike many other EU Member States. This system gives CMOs an ‘extended’ representation ‘power’: CMOs can grant licences for works that are not in their repertoire and authors that they do not represent, in certain contexts. Those who wish to make works available to the public but whose rights would otherwise be difficult to clear can approach the CMO.
Article 5 of the Directive creates an exception to use of copyright-protected material for educational purposes without permission, and explicitly recognises the possibility for these activities to take place across-borders. The Swedish implementation covers both digital or physical means, but the second paragraph states that the exception is not applicable if there is a licence easily available on the market that will allow for these uses. As the Swedish licence market is well-developed, there will probably be few cases where the exception is applicable.
While the system might be efficient for those that can afford to pay, it makes it hard for the less wealthy to access and distribute knowledge. Due to the prevalence of ECLs, some of the exceptions and limitations put forth in the CDSM Directive, especially concerning education, will likely have little effect in practice.
Out of commerce works
The Swedish implementation allows cultural heritage institutions to make copies of out-of-commerce works and publish them if there is no CMO representative of relevant rightsholders; if the material is published on a non-commercial website; if it is used for non-commercial purposes and if the names of potential rightsholders are indicated.
If such a CMO exists, a new type of licence for out-of-commerce works can be applied. This licence covers all kinds of access and use of out-of-commerce works in the collections of cultural heritage institutions, whereas the exception only includes publishing of these works. In both sections, it is clearly stated that rightsholders can opt-out of their works’ publishing.
The Directive requires that cultural heritage institutions making use of the exception for out-of-commerce works need to publish information about the works on a platform managed by EUIPO. Interestingly, the Swedish government emphasises that this should not be seen as a requirement for publishing or using the works in question. They argue that it could not be deemed reasonable to share information about every single work used or to be used on the portal. Furthermore, they argue that it should not automatically lie in the cultural heritage institution’s responsibility to update the portal; instead, this task should be carried out by a CMO.
In the proposal, the government also indicates that the exception for out-of-commerce works should include photographic images, and that a work could be defined as out-of-commerce even if it is physically available for loan in a library. When it comes to the sufficient representativity of a CMO, the rules remain unchanged – the organisation needs to represent several rightsholders of works from the category in question which are in use in Sweden.
The Public Domain
From a cultural heritage perspective, the changes brought about by the implementation of article 14 – often called the ‘safeguarding of the public domain’ – is one of the large wins.
Swedish copyright law has a specific related right for photographic images, as distinguished from photographic works. Photographic works are covered by the usual copyright provisions, whereas photographic images, that do not reach a threshold of originality, are protected by a related right for 50 years.
After the implementation, however, a new exception is introduced to this related right. The exception stipulates that the related right is not applicable if the main motif of the image is a work of art no longer covered by copyright. The exception has a large potential for the digitisation and digital dissemination of Swedish cultural heritage, especially since it has been a fairly common practice to put restrictive Creative Commons licences on digitised public domain material.
The new legal text chooses the word konstverk, whose verbatim translation would be artwork, which is slightly broader than bildkonstverk (work of visual art) in the directive. The broader implementation opens up for broader and more inclusive digitisation practices, where types of art in the grey zone between bildkonstverk and konstverk are now surely included, such as folk art, textile arts, handicrafts, glass blowing, engravings and potentially old manuscripts with both text and image, as well as typography in fracture style.
As article 14 is implemented as an exception to the related right for photographic images, it is, however, unclear if 3D digitisation practices are also covered.
Source: pro.europeana.eu-Larissa Borck & Eric Luth
Editor: IPR Daily-Ann