- A. Overview
- B. CC licensing for own content
- C. The importance of free licences in the digitisation of cultural assets
- D. DDB and Europeana
- E. CC licences in citizen participation
Literature: Christian Bracht/Klaus Bulle/Ellen Euler/Paul Klimpel, Open Access Policy, A Guide for Cultural Heritage Institutions in Hesse, published by German Documentation Centre for Art History – Bildarchiv Foto Marburg/Christian Bracht, Heidelberg 2022; Ellen Euler, Monika Hagedorn-Saupe, Gerald Maier, Werner Schweibenz, Jörg Sieglerschmidt (eds.): Handbook Culture Portals, Online Offerings from Culture and Science, pp. 57–65, Berlin 2015; Paul Klimpel: In Bewegung, The Legal Primer for Digitisation Projects, ed. Digital German Women's Archive, DigiS Research and Competence Centre for Digitisation, 2022
A. Overview
1 In Germany, the preservation and maintenance of cultural heritage is entrusted to various institutions, most of which are either publicly organised or at least receive public funding. There is a dense and partly interwoven network of municipal institutions, state institutions and federally funded institutions.
2 Public funding is linked to the task of making cultural heritage accessible to the public. There are also legal permissions (restrictions) in copyright law for cultural heritage institutions, i.e. according to the definition in Section 60d (3) No. 1 UrhG, libraries and museums, provided they are open to the public, as well as archives and institutions in the field of film or sound heritage. However, these mainly concern reproduction. The online publication of cultural heritage artefacts is not permitted by these provisions, with the exception of the regulations on orphan and unavailable works. Nor do they cover further uses by third parties. It is therefore not surprising that cultural heritage institutions, where they can, make use of free licences in order to fulfil their mission of enabling the widest possible social engagement with cultural heritage. One example is the open access policy of cultural heritage institutions in Hesse, in which these institutions commit to making cultural heritage "as openly accessible as possible". CC licences are explicitly named as a means of enabling open access and open reuse.
3 The funding of digitisation projects is also often linked to the expectation that the digitised material will subsequently be freely reusable, which is to be ensured by a Creative Commons licence. Either CC licensing is made a condition of funding, or it indirectly increases the likelihood of funding because reusability is one of the conditions of funding.
B. CC licensing for own content
4 Cultural heritage institutions not only preserve evidence of cultural heritage and make it accessible to the public in various ways, but also produce their own content that is protected by copyright. This can include texts describing describe objects, or photographs, whether of objects, buildings or events in the context of public relations work. It can also be databases that enjoy their own protection as database works or to which database producer rights apply.
5 Wherever cultural heritage institutions themselves produce copyright-protected content, they are able to place it under a Creative Commons licence or use the CC0 release declaration. And this is often the case. However, cultural heritage institutions as such cannot be authors; these are always natural persons. If the creation of copyright-protected content If copyright-protected content is created by employees of the institutions within the scope of their normal duties, the rights of use necessary for licensing are transferred to the institution in accordance with Sections 43 and 31 of the German Copyright Act (UrhG). (cf. on employee copyright law VorCCPL Rn. 43 ff.) In the case of freelancers or commissioned services, CC licensing must be contractually agreed.
C. The importance of free licences in the digitisation of cultural assets
6 Free licences are important in two ways for the digitisation of cultural heritage. On the one hand, works whose copyright usage rights are held by cultural institutions can be released. On the other hand, rights that arise as a result of the digitisation of cultural heritage by cultural institutions can be released. This is why Creative Commons licences are also an integral part of the "licence basket of the German Digital Library (DDB)", i.e. the standard for rights labelling that is used for the inclusion of cultural heritage in the DDB. The Creative Commons licences are therefore also an integral part of the "licence basket of the German Digital Library (DDB)", i.e. the standard for rights labelling that is used for the inclusion of cultural heritage in the DDB. This is why Creative Commons licences are also an integral part of the "licence basket of the German Digital Library (DDB)", i.e. the standard for rights labelling that is used for the inclusion of cultural heritage in the DDB. That is why Creative Commons licences are also an integral part of the "licence basket of the German Digital Library (DDB)", i.e. the standard for rights labelling that is decisive for the inclusion of works in the DDB as the central national portal for cultural heritage. For publication in Wikipedia, Wikimedia Commons or related projects, it is even mandatory that copyright-protected works be freely licensed using CC BY or CC BY-SA or that the rights be released using CC0. I.
I. Release of rights to works
7 In the case of works for which a museum, archive or library has been granted extensive exclusive rights of use (e.g. by the heirs of an author), many cultural heritage institutions want to ensure accessibility and enable reuse . Cultural heritage institutions are mostly publicly funded; they have the task of preserving cultural heritage for society, but also enabling society to use this heritage and breathe new life into it. The best way to do this is for the archive or library to make the works available under a free licence.
8 In order to place a work under a CC licence, a cultural institution must have sufficient rights of use; it thus becomes the licensor. The easiest way to do this is if it has exclusive or transferable rights to the content, for example because a donor has transferred comprehensive rights to it and it then digitises the collection itself. However, it is not always easy to determine whether all rights are available: if the authors are unknown or the heirs cannot be found, CC licensing is not possible.
9 It is also often the case that authors or collection providers release the content under a CC licence before giving it to an archive, museum or library. In doing so, the licensors want to ensure that the institution does not hinder the reuse of these works and that they also remain a living part of the culture of remembrance for posterity. In the past, some cultural heritage institutions have been very restrictive in granting access to their collections and have been closed to reuse. Authors or collection providers can counteract this through CC licensing.
II. Release of new rights as a result of digitisation
10 When digitising works, new rights may still arise under certain circumstances. However, due to changes in the legal situation regarding the protection of reproductions of works in the public domain, this is now only rarely the case. It concerns ancillary copyrights for the reproduction photography of works that are themselves still protected by copyright .
11 For the reproduction photography of works in the public domain, the European legislator clarified in the DSM Directive in 2019 that no new property rights arise from reproduction. This was preceded by a dispute between the Reiss-Engelhorn Museum and Wikimedia Germany, which was heard by the Federal Court of Justice, in which the protection of reproductions of photographs was affirmed in Germany. [3]
12 In the case of reproduction photography of works that are still protected by copyright, however, in addition to the copyright protection of the actual work, a photographic copyright arises in the reproduction photography.
13 Example: "Sculpture by Egon Müller (all rights reserved). Photograph by Sabine Meier, CC BY 4.0."
III. Rights to metadata and databases
14 Cultural heritage institutions preserve and catalogue countless works. Cataloguing is not only a prerequisite for ensuring that these works are not lost in archives, museums or libraries and disappear from cultural memory, but also that they can be found there in the first place. Information about the characteristics of other data or data collections, such as documents, books, databases or files, is referred to as metadata. In memory institutions, this metadata is central to the identification and description of the works and thus to their cataloguing . The entirety of this metadata then forms databases. Both metadata and databases may be protected by copyright, and CC licences or release via CC0 are often used to enable freer reuse.
1. Metadata
15 Metadata may also be protected by copyright under certain circumstances – namely, if it has the quality of a work in its own right, such as descriptive texts or object photographs, or if it is protected by one of the ancillary copyrights.
16 The term metadata is not used uniformly. On the one hand, metadata includes information such as signature numbers, year of publication or age, which are not protected by copyright at all. On the other hand, preview images or descriptions and texts are also referred to as metadata, which are definitely protected by copyright. Whether metadata is protected by copyright must be assessed separately in each individual case. The following table provides only a preliminary assessment, which may differ from the assessment of copyright protection in exceptional cases .
Object | Not protected | Protected |
Abstract | X | |
Detailed description | X | |
Excerpt | X | |
Author biography | X | |
Author's commentary | X | |
Author name | X | |
Accompanying material | X | |
Description for libraries, booksellers, reading groups, marketing | X | |
Stock information | X | |
Image description, image analysis as text | X | |
Image description, purely formal using standard vocabulary | X | |
Image designation | X | |
Cover | X | |
Digital copy of a work in the public domain (image, book cover), reproduction photography, scan | X | |
Documentation language (overall) | X | |
Documentation language (classification by means of) | X | |
Introduction/Foreword | X | |
Errata | X | |
Photos (of the property) | X | |
Publisher | X | |
Content text | X | |
Table of contents | X | |
Blurb | X | |
Brief description | X | |
Links | X | |
Bibliography | X | |
Ontology (overall) | X | |
Ontology (application of parts) | X | |
Press release | X | |
Register | X | |
Review | X | |
Number of pages | X | |
Call number | X | |
Blurb | X | |
Copyright status of a work | X | |
Publisher name | X | |
Keyword indexing | X |
17 A common distinction is that between core metadata and descriptive metadata.
18 Core metadata includes information such as author and publisher, title, publishing house, date and place of publication, page numbers, but also certain secondary data of a purely formal nature, such as identifiers (e.g. ISBN) or format information. This core metadata is not usually protected by copyright. However, core metadata may also be subject to copyright protection because, for example, a title in itself may be protected by copyright as a work. Although these are absolute exceptions, it has become common practice in cultural heritage institutions to place core metadata under the CC0 release declaration in order to avoid demarcation difficulties. This is also the approach taken by Europeana, the European cultural platform, which requires metadata to be released under CC0 as a matter of principle. In the case of metadata that is not protected by copyright anyway, this release is merely declaratory.
19 Unlike core metadata, so-called descriptive metadata is usually protected by copyright. This applies to preview images as well as descriptive texts, especially since no particularly high requirements are placed on the level of creativity in literary works.
20 In order to enable the unhindered use of descriptive metadata such as blurbs, image descriptions, reviews or short descriptions, many cultural heritage institutions also use CC licences or the CC0 release declaration.
2. Databases
21 Another area in which CC licensing or the CC0 release declaration is used is copyright protection rights that arise in relation to databases. (Electronic) Inventory lists are always databases. However, as these serve the purpose of findability, linking them to other directories or integrating them into other databases is often desirable – at least as long as no confidential information is involved. Copyright protection of databases stands in the way of such free reuse and would require individual licensing in each case.
22 Copyright protection for databases may arise from the work-like nature of a database if it implements a special, original classification system. In this case, protection arises from Section 4 of the British Copyright Act. However, databases that systematically collect information in accordance with existing standards , are protected by the database producer's right under Section 87a UrhG (for databases, see Section 1.j). In the field of cultural heritage, there are now extensive standardisation efforts, both in libraries and in museums and archives.
23 With a CC licence or the CC0 release declaration, release for reuse can now take place here. Since CCPL 4.0, database producer rights, which are a specifically European form of protection, are also expressly covered by the licences.
D. DDB and Europeana
24 Both at Europeana, a major European cultural platform, and at the German Digital Library, a national aggregator, Creative Commons licences are an integral part of the rights management of the digitised material available there.
25 They can also be found in the DDB's "licence basket". This refers to the rights labels that can be used to identify objects in the DDB. Both Creative Commons licences and public domain labels or the CC0 release declaration are included. They can be used whenever the possibilities for use need to be indicated in general terms.
E. CC licences in citizen participation
26 Creative Commons licences also play a major role in cultural heritage projects that are designed for broad participation by citizens. Such participatory projects usually do not allow individual contracts to be negotiated for the use of content that is provided by citizens, sometimes via upload options without personal contact.
27 In this regard, many cultural heritage institutions have taken their cue from Wikipedia as the largest participatory platform, which is also reflected in cooperation projects between Wikimedia Germany and cultural heritage institutions, such as the "Coding da Vinci" project
Creative Commons License
Open Access Kommentar, Commentary on D. Cultural Heritage is licensed under a Creative Commons Attribution 4.0 International License.
