Topic Report No. 4: PSI in the Cultural Sector

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About this Report

Abstract

This report summarises recent policy discussions regarding the case for bringing the cultural sector within the scope of the European Directive on PSI re-use.

Key words

Public Sector Information, Directive 2003/98/EC, culture, Europeana, digital libraries

About the Author

Rob Davies is Chief Executive of MDR Partners, which manages the ePSIPlatform contract with the European Commission. He was the co-ordinator of the ePSINet and ePSIPlus actions and is now Scientific Co-ordinator of a number of strategic projects concerning digital cultural heritage, including EuropeanaLocal, funded under the EC ICT-PSP programme (CIP) which is establishing infrastructure for locally and regionally-sourced content throughout Europe to be accessible through the Europeana service.

Copyright

© 2009 European PSI Platform - This document and all material therein has been compiled with great care; however, the author, editor and/or publisher and/or any party within the European PSI Platform or its predecessor projects the ePSIplus Network project or ePSINet consortium cannot be held liable in any way for the consequences of using the content of this document and/or any material referenced therein. This report has been published under the auspices of the European Public Sector Information Platform.

The report may be reproduced providing acknowledgement is made to the European Public Sector Information (PSI) Platform.

The European Public Sector Information (PSI) Platform is funded under the European Commission eContentplus programme.

Introduction

In December 2003, the EU adopted Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information” (“the Directive”), which aimed to put in place a framework for PSI in order to ensure fair, transparent, proportionate and non-discriminatory conditions for the re-use of such information and to achieve a minimum level of harmonisation between Member States. Its general purpose is to stimulate a growing market in added-value products and services based on PSI re-use.

Article 13 of the Directive required the Commission to review the Directive and to communicate the results to the European Parliament and the Council, together with any proposals for modifications. The review clause required the Commission, among other things, to address the scope of the Directive. In practice this meant that the Commission had to analyse whether cultural establishments, education and research organisations and public service broadcasters, currently excluded from the scope, ought to be covered by the Directive.

Given that the Directive is aimed specifically at information with high value and re-use exploitation potential, these exemptions could be seen as running counter to its central vision; since, public Institutions in the cultural sector hold highly valuable content and information.

A consultation and review of the Directive was undertaken in 2008 resulted in an EC Communication Re-use of Public Sector Information – Review of Directive 2003/98/[1], published in 22 languages, which reported on the impact of the Directive and called for more time to allow for implementation. Its specific findings on inclusion of the cultural sector are reflected in the remainder of this Report.

The most recent attempt to estimate the economic value of cultural PSI through re-use remains the ‘PIRA study’ Commercial exploitation of Europe’s public sector information (2000)[2] which calculated that, in terms of “European Investment Value”, across the European Union as a whole, governments invested in PSI to the tune of about €9.5 billion each year. Cultural information, including museums and libraries made up the second largest sector, after geographical information, ahead of statistical services, company information, intellectual property rights information, legal and tourism information and official produced publications.

However, in calculating the estimated economic value of this investment, the proportionate returns on investment in cultural information appeared to be much lower. Whereas the central total estimate of the value of PSI was €68 billion per annum, the economic value of cultural heritage information was estimated at €3.9 billion, placing it behind geographic information (€36 billion), industries exploiting social and economic data (€11.7 billion) and company information (€9.4 billion).

Taken at face value, this suggests that there is a case for seeking to examine the possibility of increasing the economic value from cultural information through activities such as greater commercial re-use. The question that arises is whether bringing cultural institutions under the Directive under current conditions would be likely to have this effect.

The cultural sector was also identified as a catalyst for creativity, growth and jobs by the Commission’s study on the Economy of Culture in Europe (2004)[3] which highlighted the direct as well as the indirect contribution of the cultural and creative sectors towards the Lisbon Agenda. It concluded that the (broadly defined) cultural sector:

  • ­ turned over more than €654 billion in 2003;
  • ­ contributed to 2.6% of EU GDP in 2003;
  • ­ grew in terms of value-added by 19.7% between 1999-2003;
  • ­ employed, in 2004, at least 5.8 million people, equivalent to 3.1% of the total employed population in Europe.

Among the content types held or created by cultural (or “memory”) institutions which may be considered valuable for re-use under the terms of the Directive are:

  • ­ Any published item as well as unpublished material in the public domain;
  • ­ Public records and archival documents of many kinds (church records, census records, government minutes);
  • ­ Bibliographic data (metadata) e.g. catalogues, national bibliographies, database;
  • ­ Photographs and images (including those of objects and artefacts);
  • ­ Ancient, rare, printed books, manuscripts, fine prints, drawings, etc;
  • ­ Periodical articles (perhaps in electronic file formats);
  • ­ Newspapers and magazines;
  • ­ Sheet music;
  • ­ Maps and plans;
  • ­ Engravings;
  • ­ Single sheet documents;
  • ­ Posters and postcards;
  • ­ Audio (music and other recorded sound);
  • ­ Film and video;
  • ­ Ethnographic descriptions;
  • ­ 3D/VR simulations.

The extent of material which cultural institutions generate themselves (and could be considered PSI as a result) has been restricted to certain limited, although important categories (including metadata and databases). However, there is now a growing participation by cultural institutions in the creation of content associated with Web 2.0 and social networking activities. This sometimes incorporates user-generated annotation.

Some key market re-use areas include publishing and facsimile reproduction and repurposing for learning and tourism. There is also growing recognition of underexploited demand in the area of family history/genealogy.

A very large amount of digital content exists but is often not easily available for re-use. The work of initiatives such as the Europeana[4] service under i2010 Digital Libraries Initiative[5] is drawing attention to the need to introducing effective measures to ‘unlock’ this content for re-use, on a freely available basis either as part of the work of the public domain or on a licensed basis. The question therefore is posed, given that cultural information may be seen for practical, social and economic purposes as closely related to other forms of information “collected, produced, reproduced or disseminated by the public sector”, what might the main arguments be for including or excluding it from the scope of the Directive in future and what appears to be the force of these arguments in practice?

[1] http://epsiplus.net/psi_library/reports/european_commission_communication_on_re_use_of_psi_directive_may_2009

[2] http://epsiplus.net/psi_library/reports/commercial_exploitation_of_europe_s_public_sector_information

[3] http://ec.europa.eu/culture/key-documents/doc873_en.htm

[4] http://www.europeana.eu/portal/

[5] http://ec.europa.eu/information_society/activities/digital_libraries/index_en.htm

Recent findings

As part of a Commission-tendered study on the Economic and Social Impact of the Public Domain, a report was published in 2009 on EU Cultural Institutions and the PSI Directive[6]. Among the report’s findings, reflected in the commission’s review of the Directive, were as follows.

Many cultural institutions express a high level of obligation to provide content when requested by re-users and consequently fear an automatically increased administrative burden if cultural institutions were under the scope of the Directive. It is important to take into account the actual provisions of the Directive in determining how far this is true.

Respondents’ main concerns about potential cost barriers associated with coming under the scope of the Directive related to a mixture of processing and supply costs, support costs, legal (rights-related) costs and their consequent adverse effects on the sustainability of digitisation programmes and the provision of public-facing offerings. A substantial proportion of respondents were concerned about a rise in costs imposed on a relatively small income base. Institutions which already combine very large collections with a substantial existing exposure to and infrastructure for re-use requests were perhaps the most anxious about the consequences of coming under the Directive. Most cultural heritage organisations that run re-use services do so on a close to break-even basis – sometimes at a loss, sometimes at a marginal profit, which is ploughed back into the organization.

The benefits of coming under the scope of the Directive, where perceived, were inclined to be generic in nature. Among them were:

  • ­ potential for increasing the economic and market value and visibility of cultural institutions;
  • ­ greater awareness of opportunities;
  • ­ potential to participate in funded cross-sectoral projects and initiatives;
  • ­ incentive to digitise their collections in order to meet the needs of re-users;
  • ­ the opportunity to begin to charge re-users in order to provide an income for the institution to cover the costs of digitisation, legal work etc.
  • ­ greater harmonisation of prices and more awareness-raising on free or low cost pricing of information generated with public money;
  • ­ creation of innovative co-operation models between the public and private sector;
  • ­ enhanced opportunities for cross domain research and education at all levels (schools, universities) and for all interested in European cultural heritage.

Some saw themselves as already broadly compliant with the Directive in practice and foresaw no change as a consequence of coming under its formal scope. These and similar perceptions appear typically to be prevalent in countries where either the extent of state subsidy to budget and policy are sufficient to support free access and/or where a significant level of demand from re-users has not yet emerged.

The potential benefits of coming within the scope of the Directive have not yet been articulated to most decision makers in the cultural field. There is a case for further work to establish and define these benefits and to seek to demonstrate that they outweigh costs in a way that is meaningful to those involved in the implementation of cultural services. Likewise, it does not appear that competitive practices are as yet uniformly understood or adhered to among European cultural institutions. Being brought under the scope of the Directive would require significant further awareness-raising activity supported by effective case building in support of behavioural change.

[6] http://www.epsiplatform.eu/psi_library/reports/economic_and_social_impact_of_the_public_domain_eu_cultural_institutions_and_the_psi_directive_may_2009

Charging and pricing

About 75% of major cultural institutions appeared to offer free access to their content for end users, whilst the remainder made some kind of charge for accessing at least some of their content. Around one-third of respondents charged for licences to re-use content.

A significant number of cultural institutions regard charging as an important means of meeting their essential/statutory costs and to a lesser extent of funding innovation. One important feature of the European approach to the re-use of cultural information (and PSI more generally) is that it is common practice to distinguish, often sharply, in terms of prices charged (or free access provided) to individual users or for education and research, on the one hand and those charged to commercial customers for re-use, on the other. The Directive does not deter such a distinction. There is thus little emulation of the principle of the “federal model” used in the USA which does not distinguish between individuals and businesses in this context, but regards all as citizens who may benefit equally from taxpayer-funded activities. Quite frequently the distinction is embodied in national laws, with varying inflections. Whilst cultural institutions are widely committed to the principle of providing free access to direct end users (general public, scholars and researchers), they are inclined to regard commercial re-use as a separate matter, for which they should be reimbursed and in some cases to view it as a significant potential income generator. Few cultural institutions interviewed currently view it as a realistic possibility that either Ministries of Finance or Culture could be persuaded to compensate budgets should they give up these revenues.

There is also a tendency in the cultural sector to require re-users to reveal what they are going to do with information and to charge accordingly, even though they do not have the capacity to track or monitor this in practice. There is a considerable risk that interventions of this kind by public sector bodies would contravene the provisions of the Directive regarding non-discriminatory practices.

Income generation

Amounts of income derived from charges to re-users are not always disaggregated from other reproduction services) but where known ranged e.g. among national libraries, from €12 million year (UK) down to €40,000 (Poland). Reported balances of income over cost (staff costs) from re-use activity are mainly small or negative. Several organisations reported that it is difficult to estimate how many staff (FTE) there are working on re-use activities.

In circumstances where the costs of licensing re-use appear to exceed the income generated, the fundamental question is raised as to whether free access would provide greater economic value, by stimulating more re-use. However, the answer to this question needs to take into account the extent to which the licensing of cultural content would in any case require administrative (or end-user) activity to clear third party or unknown rights and to what extent therefore the case for some level of public subsidy could be justified. These questions have yet been investigated in a systematic way and further work to this end may be needed.

Licensing

Relatively few cultural institutions have yet implemented licensing regimes in the context of re-use. Some of the bigger suppliers have however introduced electronic licensing regimes, for example The British Library and The Swedish National Archive. The Directive’s approach to licensing is defined in Article 8 and allows for considerable flexibility, providing only that where licences are used Member States must ensure that standard licences for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically and that all public bodies should be encouraged to use the standard licences. In practice, the level of implementation of formal or standard licensing regimes by PSI holders of any type in Member States remains at a modest level.

Only a few major cultural institutions are as yet equipped to deal with issuing licences for re-use in the manner required by the Directive. A significant level of change and associated costs would be entailed were they to seek to do so, although the adoption of “click-through” models possibly involving voluntary schemes such as Creative Commons licences (which are in any case quite widely supported in the cultural sector) has widening support.

A major concern held by cultural institutions relates to the costs inherent in the identification of third-party rights holders, in order to enable copyright clearance and licensing for re-use. The High Level Expert Group on Digital Libraries, Sub-Group on Public Private Partnerships (HLEG-DG Sub-group) report[7] confirms that for book digitisation, the biggest project challenge of all proves to be copyright clearance. The intellectual property rights (“IPR”) of every potential right holder have to be considered. In many cases, they need to be contacted individually for permission to digitise their work.

A very high proportion of the holdings of “documents” and other content collected and held by libraries, museums and archives are protected by territorial copyright laws. Legal exemptions affecting library materials enable them to be copied digitally for preservation purposes, accessed for educational and research purposes etc. Clearing rights for the purposes of re-use can often be a complex issue and a time-consuming activity from which relatively few items are restricted on the grounds of age. EU law stipulates that for books, maps and pictures copyright term is life plus 70 years. Thus, if an author of a book published in 1900 lived until 1939, the work would still be in copyright. In digitising historical out-of-print books, it may be necessary to refer back to the 1860s. It is a matter of intense debate as to whether copyright legislation needs to be revised and simplified and a new balance found for the digital era. The cultural sector includes many proponents of such a need.

In digitisation or licensing for re-use, institutions need to consider whether a work has fallen into the public domain or, alternatively, is still protected by copyright or by related rights. New rights may also arise in connection with the process of digitisation, for example through professional work done in the semantic tagging environment, indexing algorithms and metadata, in relation to database law or where moral rights such as Authors’ Rights exist to protect the rights of civil servants, as in France . Institutions considering re-use need to establish who owns any such rights that may be created and how third parties, including employees and contractors, may exploit them.

Several major institutions have established significant capacities to deal with requests for re-use, which are dealt with personally and on case-by-case basis. For institutions with very large collections, the capacity needed could be very large, if this approach is maintained. Copyright law in the USA is often held to be somewhat clearer than in Europe. Even so, the American Association of Law Libraries believes the average permission takes 12 hours to research and chase.

When authors can’t be identified or found, the materials are known as orphan works. According to one estimate by the British Library, a minimum of 40% of all copyright materials ever produced are orphan works and this situation is exacerbated by the explosion in self-publishing on the internet. Because of the immense hybridity of content rights, many cultural institutions are concerned about the potential administrative burden of becoming subject to the Directive.

The process of copyright clearance during the current digitisation of works that are mostly out of copyright is serving to underline the need for secure frameworks within which public and academic institutions can go forward with digitisation initiatives that might include more recent works. Guidance about exceptions and grey areas is being developed but copyright clearance may be a laborious task for some time to come.

Current initiatives at EU level in the context of the public domain such as the Digital Libraries Initiative: Agreement between Cultural Institutions and Right Holders on Orphan Works[8], the Arrow[9] project and further investment in the automation of rights expression are an important contribution. Although a growing professionalism is evident in terms of clearing IPR, simplification appears to be necessary in terms of enabling sustainable licensing approaches, which would support re-use. It may otherwise be difficult to allay the concerns of cultural institutions in terms of the costs associated with rights clearance for re-use.

[7] http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/meetings/index_en.htm

Discovery of cultural information

Article 9 of the Directive stipulates that ‘Member States ensure that practical arrangements are in place that facilitate the search for documents available for re-use, such as assets lists, accessible preferably online, of main documents, and portal sites that are linked to decentralised assets lists’. The cultural sector in general may be seen as one of the sectors most likely to comply with the Directive in terms of this requirement. Cultural institutions individually or in collaboration offer numerous effective search services for the discovery of content that may have the potential for re-use.

Nevertheless, the ambitious plan to build a cross-border Europeana service under the European Digital Libraries Initiative may have a significant impact on the discovery of content for re-use.

In particular, the creation of a network of technically-compliant metadata aggregations across Europe which can potentially be harvested or otherwise ingested through means such as specific APIs holds enormous potential for exposing tens of millions of items of cultural content for discovery and re-use. In this area, the cultural sector potentially can contribute considerably to the consideration of effective discovery infrastructures for other PSI sectors. The starting point for Europeana has been to aggregate chiefly content which is in the public domain. However, its strategic plans include the licensing of published content as well as licensing its own content for re-use.

[8] http://ec.europa.eu/information_society/newsroom/cf/itemdetail.cfm?item_id=4145

[9] http://www.arrow-net.eu/news/europeana-plenary-2009.html

Demand side views

The private sector usually does not see strong reasons to differentiate cultural information from other types of information gathered by the public sector. Cultural information is seen as having a high re-use value. It is essential, for example, for the tourism industry to have a well-developed system of access to cultural information in order to develop services.

However, publishers often draw attention to the need to ensure:

  • ­ Clear differentiation between public domain material and that where rights attach to third parties;
  • ­ Avoidance of exclusive arrangements;
  • ­ Avoidance of public sector competition with private sector “offers”.

The Creative and Media Business Alliance (CMBA)[10] supports in principle the widening of the scope of the Directive to include cultural establishments, education and research organisations and public service broadcasters. It urges the Commission in the event of any expansion of the scope, to underline the importance of respecting the wishes of rights holders of copyright works and the protection of intellectual property rights in general. As long as copyright protection is respected, the information held by these institutions would provide the raw-material for further business models to develop

It is probable that types of demand for re-use of cultural information will change and expand in the near future, involving the emerging requirements of a variety of service suppliers for the integration of cultural information and its metadata including those operating in areas such as mobile phone operation and manufacturing, satellite navigation and mapping/direction services; travel and tourism; genealogy; music and local government. Future strategies to promote re-use will need to take account this new potential.

Public-Private Partnerships (PPPS)

PPPs can take a number of forms on a spectrum extending from businesses almost entirely controlled by the private sector, at one end, to those almost entirely controlled by the public sector, at the other. In the context of the cultural sector, funds for digitisation and availability of cultural content in Member States are in short supply in general and, with increasing public spending restrictions, PPPs have come into play as an alternative approach, although they are not yet widespread within the cultural sector in Europe. Some private firms co-operate with public institutions in their digitisation efforts in exchange, for example, for “in kind” benefits such as web space for advertising. While these arrangements have enabled a considerable amount of material to be made available on-line, some major PPP arrangements, e.g. those for “mass digitisation” have the potential to restrict access and re-use by imposing specific re-use conditions on the cultural institutions involved.

Major technology providers such as Google and Microsoft (as well as some smaller commercial organisations) have demonstrated the value embedded in the content held by cultural institutions through their initial willingness to invest in “mass digitisation” projects in the form of PPPs with a number of large libraries. This form of co-operation is in general terms supported by the European Commission.

The HLEG-DL Sub-group on PPP final report is supportive of the important role of PPP in helping achieve the European Commission’s strategy for digitisation, online accessibility and digital preservation of Europe’s collective memory and has identified a number of case studies to exemplify good practice in digitisation based on PPP. The report recommends that cultural institutions should aim to abide by the principle of the Directive, although it does not at this stage explicitly support extending the scope of the Directive to include cultural institutions. Its report is also explicit about the conditions that it perceives to be necessary for PPP that should:

  • ­ Be a formal, transparent and accountable partnership;
  • ­ Not establish exclusive agreements that are not time-limited;
  • ­ operate within the framework of applicable copyright and intellectual property law; and
  • ­ Clearly state the ownership of such rights after digitisation.

In this context, the HLEG-DG Sub-group report recommends clearly “…exclusive arrangements for digitising and distributing the digital assets of cultural institutions are to be avoided”.

Three levels or types of exclusivity are identified in the report:

  • ­ Exclusivity of partners, whereby partnering with one organisation precludes partnering with another (none of the case studies used in the report reflect this position);
  • ­ Exclusivity of content, whereby the partnership prevents the public-sector institution digitising its copies of the content with another private-sector provider, in order to protect the commercial interests of the first partner; and
  • ­ Exclusivity of search access, whereby PPPs involving search engine providers in the financing of the digitisation of content may limit search on the resulting digitised copies to specific search services to prevent them from being indexable by other search engines.

Its further conclusion is that avoidance of exclusive rights should be “…balanced with the need for the PPP to provide the level of incentive for private partners to engage in digitisation and making available the assets of cultural institutions”. However, where exclusive arrangements require restrictions to users’ access and use in order to make the digital content available at all, these restrictions should only apply for a time-limited period.

Whilst the conclusions of the HLEG-DL Sub-group provide significant encouragement to the potential for increased re-use of cultural information and compliance with the spirit and key terms of the Directive, there is a need to address certain issues including the apparent possibility, that in order to realise all the potential advantages of digitisation , cultural institutions, whilst “aiming to abide by the principles of the Directive” may in practice need to draw very frequently on the flexibility provided by Article 11.2 by making an exclusive arrangement qualified by the time-based review provision.

A consequence of this, on the assumption that the overall spirit and intention of the Directive is to improve the competitive environment and to reduce exclusive arrangements to an irreducible minimum, could be to render the intention of Article 11 somewhat less meaningful in its application to cultural institutions than to other PSI providers. In this specific context a source of further concern may be that the report argues, quite understandably, for arrangements that help ensure the sustainability of PPP in the longer term. This may raise further uncertainties about the impact that such an approach may have on the need to renew initially time-bound exclusive agreements.

The way in which the Europeana service, being developed under European Digital Libraries Initiative, serves as an access point in future for the commercial re-use of public domain content is an issue which may be of some relevance, whether culture is brought within the scope of the Directive or otherwise. Its current business plan envisages mobilising market-driven site revenues and the possibility of re-use arrangements with, for example providers of commercial services such as family history service providers, mobile phone operators or suppliers of directional “satnav” services.

Given the existence of competition and procurement legislation in any case, there appears to be a need for more detailed consideration whether either the cultural sector or the implementation of the Directive on PSI re-use in its wider “harmonisation” context would be strengthened by formal inclusion of the cultural sector within its scope.

[10] http://www.cmbaalliance. eu/

The public task

Were cultural institutions to be brought within the scope of the Directive, the question would arise as to which, if any, of its major re-use activities falls outside the public task. There has been much discussion not only of the need to define more clearly the public task in the context of PSI re-use, but also recognition of the difficulty of establishing a “pan-European” definition and even of identifying specific statements of the public task in a given national or institutional situation, especially in such a way that enables necessary developments in the public sector task over time (e.g. in line with technical innovations).

In France, PSI has a legal definition there which is “…all information produced by the public administration as a result of its work”. Two major revenue-earning cultural agencies, the Réunion des Musées Nationaux (“RMN”), which has an extensive image collection, and, the Institut National de l’audiovisuel (“INA”) are identified as operating outside the public task. They compete with at least two major private sector image libraries and seek to maintain their charges at a “market level” so as not to undercut their competition. It is argued that public sector budgets are not sufficiently high to enable these agencies to operate within the public task i.e. to continue their collecting activity and to make their content available for use at low or no cost. It argues that there is a need to maintain comprehensiveness of access to the patrimony in this area and that this could not be guaranteed without the activities of these agencies;

Image libraries are possibly the largest revenue-generating activity for cultural institutions across the EU (with the possible exception of museum shops and retail activities). Libraries, archives and museums all run image library services. The supply of images of artefacts is in particular a major business area for museums. Whilst important for the financial well-being of many large institutions, it is not clear that these activities are defined as part of their public task. Were this to be agreed as the case, the Directive would not apply to them.

It is often the case that a distinction is made between the supply of standard-resolution images without charge or at low cost and high-resolution images that may be ordered by re-users at a commercial price through an image library. Many of the original artefacts that are made available in this way are in the public domain and no longer covered by copyright. The danger with high-resolution images only being available for re-users at commercial prices is that this can limit third party access and re-use of the material. This potentially represents the risk of public domain material becoming “privatised” in the digital world through restrictive access and re-use conditions. In any consideration of bringing image libraries under the scope of the Directive, it would be relevant to provide if possible general guidance as to whether image libraries or other services provided by cultural institutions fall within or outside the public task or at least what criteria might be used to determine this.

The status of archives

The proportion of archival collections that may be available for re-use varies greatly. Archives usually organise and perceive the documents they hold initially as parts of files, collections, deposits or ”fonds” which may contain both PSI and content subject to third party copyright and for which the rights are complex and time consuming to analyse for the purposes of re-use. There are also cases when PSI is a part of a whole to which personal data protection legislation applies.

In some countries of Europe, national and regional archival services are the responsibility of Ministries other than culture (most frequently the Ministry of the Interior or its successor). Whilst there is a very good case for clustering libraries, museums and archives together as “memory institutions” (and it is clear that archives play a key role in cultural initiatives such as Europeana), the current exclusion of that archival content which is clearly PSI in its most central meaning (information created or held by public bodies) from the scope of the Directive, on the grounds that it is held by a cultural institution, appears to pose a risk that some valuable PSI might not be made available for re-use.

Some national archives appear to be exemplars of compliance with the Directive, charging dissemination costs according to a clearly published tariff and with their main operations funded from public budgets, although acknowledging limited affinity with the cultural sector. A possible implication is that exclusion of the whole sector of “cultural institutions” from the scope of the Directive may require further consideration. It is arguable that in the event of continued exclusion from scope, the “institutional” definition should be refined somewhat in order to ensure that major content sources which are clearly PSI in its core sense (information without third-party rights generated by government administrative activity) should be made available for re-use under the Directive.

Conclusions

The question whether cultural heritage institutions should be included within the scope of the Directive is complex. In general, cultural institutions represent a hybrid sector, collecting material of which a high proportion involves third-party rights. As yet, they generate comparatively little new PSI, although this is growing. The benefits of subjecting them to the regime of the Directive appear on balance to be modest at current levels of activity, although it is probable that the value of cultural information will rise in the context of new technology-driven developments in and around digital libraries.

Overall, whilst there is little doubt that PSI held by the cultural sector has a significant potential value for re-users, the advantages of including cultural heritage institutions within the scope of the Directive are currently difficult to assess and require further investigation.. The practical and financial disadvantages to the sector, given the nature of its institutions and their collections, should not be allowed in the longer term to outweigh the possible advantages to the economy, industry and society. This situation will clearly need to be monitored over the next few years in the quite possible event that large scale digitisation combined with enhanced ICT for accessing content creates conditions where competition factors in relation to re-use become more evident.

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