Creating the Public Domain Calculators
Knowledgeland (KL) and the Institute for Information Law (IViR) of the University of Amsterdam have worked on the preparation of the current set of Public Domain Calculators. The Calculators are intended to assist users in the determination of whether or not a certain work or other subject matter vested with copyright or neighbouring rights (related rights), has fallen into the public domain and can therefore be freely copied or re-used. The Calculators provide a simple interface between the user and the often complex set of national rules governing the term of protection.
The issue is of great significance for Europeana, as data providers are required to mark works in their collection which are out of copyright as public domain material to ensure that they can be reused by third parties.
As part of EuropeanaConnect Work Package 4, IViR conducted research into the question of the duration of the protection of subject matter in which copyright or neighbouring rights subsist across Europe. The research thus effected ultimately resulted in the production of the current set of Public Domain Calculators, each calculator corresponding to an examined jurisdiction. The full process for the creation of the Public Domain Calculators consisted of four basic steps, as detailed below.
Step 1: Analysis of the Term Directive and Construction of Generic Flowcharts
The first step involved the careful study of EU Directive 2006/116/EC on the term of protection of copyright and certain related rights (Term Directive). The Directive attempts the harmonisation of rules across the board of EU Member States (and states party to the Agreement on the European Economic Area) on the term of protection of copyright and neighbouring rights.
The general rule imposed by the Directive is 70 years after the death of the author for works of copyright and 50 years after the event setting the time running for neighbouring rights. Detailed provisions govern other specificities, such as the protection of previously unpublished works, of anonymous or pseudonymous works or of collective works and works of joint authorship. The rules of the Directive were integrated by IViR into a Skeleton European Flowchart. Given the essential role that the Term Directive has played in shaping national laws on the duration of protection, the Skeleton Flowchart functioned as the prototype for the National Flowcharts.
Although the Directive does provide for both maximum and minimum harmonisation, the desired harmonising effect has not been entirely achieved and national idiosyncrasies thus survive into the post-harmonisation era. This has been either due to exceptions permitted by the Directive itself, such as those on critical and scientific publications or non-original photographs, or due to the way with which the rules prescribed by the Directive were incorporated into the pre-existing bodies of national legislation (for example, diverging treatment of government material, different approaches to the definition of the terms used in the Directive or national divergences on the duration of moral rights occur on the Member State level). Such national peculiarities necessitate separate flowcharts adjusted to the particular situation of each individual Member State.
Step 2: Questionnaire for National Experts
In order to investigate national rules on the duration of protection in the six jurisdictions under examination, IViR identified the main issues left unharmonised by the Term Directive and on this basis composed a Questionnaire for National Experts. This was sent out to legal experts on copyright and related rights law in the examined countries.
Step 3: Construction of the National Flowcharts
The evidence collected on the basis of the aforementioned Questionnaire served as the basis for the construction of the National Flowcharts. These were built around the framework of the skeleton Generic European Flowchart mentioned above, which implements the core provisions that are necessarily shared by all EU Member States in accordance with the provisions of the Term Directive, with adjustments so as to take into consideration national stamps of legislative originality.
Step 4: Implementation into Code
In the final step, the National Flowcharts were translated into code by IViR’s colleagues at Kennisland, thus resulting in the creation of the current set of web-based Public Domain Calculators.