Royal Library: Public Interests Over Private

Peter Brantley -- September 27th, 2012

Revue der SportenThe Royal Library of the Netherlands, the Koninklijke Bibliotheek (KB), has announced the release of a digital collection of magazines and journals from the period 1850-1940. Although many of these materials have uncertain and cloudy rights status, the KB has decided to make these rare materials available online on an “opt-out” basis for rightsholders. In an open letter, Managing Director Bas Savenije explains (in English via Google Translate), “[w]e want the public interest in access to this cultural heritage to prevail over the private interests of potential copyright holders.”

The KB worked with this collection for several reasons. Magazines from this decade are vulnerable because the paper stock was poor, and over decades, the issues have received significant handling and are wearing out. The titles are often highly specialized, and targeted limited audiences. Formally, Dutch copyright law would have kept these titles from public view for countless more years. Copyright for published magazines is valid for 70 years after the date of publication and has therefore expired, but many contributing authors would have held their own copyrights, which would persist for 70 years after their death. Most of these authors are now dead, and the copyright would have passed onto multiple heirs.

The KB attempted to analyze the extent of the rights determination problem. They discovered an average of 25 unique contributing authors per issue. Assuming each author has two heirs, the collection could represent at least 18,500 possible rights claimants; at a minimum of 30 minutes for each person, the KB could easily have spent over five years searching for rights holders for a collection that amounted to only about 1.5 million pages – a relatively modest digital library project. Since this estimate does not include the time it would take to obtain permissions, one could anticipate spending well over a decade to make available only a small portion of this collection. As the KB says (in translation), “The paradox is: the older the material and the lower the economic value, the more time and money it takes to seek the owners.”

Therefore, the KB has decided to publish a list of the magazine and journal titles online for several weeks, inviting the authors and their heirs to opt-out of display access. Even after display has commenced, it will remain possible for rightsholders to opt-out and remove materials from access.

The KB feels this approach is warranted for several reasons. First, these are older (pre-WWII) magazines that are no longer in publication, and many of the authors will be deceased. They are not commercially available, and their economic value is negligible. Second, although the physical publications are openly available in the library itself, access would remain highly restricted unless they are placed online. The KB, as the national library of the Netherlands, purchased these magazines with public funds and has digitized them for preservation and access as a vital part of its mission. As the KB’s Managing Director notes, hopefully the rightsholders and their heirs will applaud these publications’ new digital availability, furthering awareness of their historical contributions.

The thorns and brambles that copyright laws put in the path of greater access to archived content are so restrictive, many cultural heritage institutions are moving forward with similar opt-out arrangements. At a UC Berkeley Law conference on orphans and mass digitization earlier this year, many expressed a desire to move towards greater access in the absence of a comprehensive solution. Until there is thorough copyright reform, institutions will need to make their own decisions, with the library and archival community normalizing their lessons into best practice guidelines.

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