French National Library Privatizes Public Domain Materials

from the deep-betrayal dept

Thu, Jan 31st 2013 10:58am — Glyn Moody

Copyright is sometimes described as a bargain between two parties: creators and their public. In return for receiving a government-backed monopoly on making copies, creators promise to place their works in the public domain at the end of the copyright term. The problem with that narrative is that time and again, the public is cheated out of what it is due.

For example, copyright terms can be extended retrospectively, which means that material will be locked up for longer than originally promised in the "deal". Or there can be a privatization of public domain materials, using contracts, as reported here by Communia:

Last week the Bibliothèque nationale de France (BnF) concluded two new agreements with private companies to digitize over 70.000 old books, 200.000 sound recordings and other documents belonging (either partially or as a whole) to the public domain. While these public private partnerships enable the digitization of these works they also contain 10-year exclusive agreements allowing the private companies carrying out the digitization to commercialize the digitized documents. During this period only a limited number of these works may be offered online by the BnF.

Communia points out: The value of the public domain lies in the free dissemination of knowledge and the ability for everyone to access and create new works based on previous works. Yet, instead of taking advantage of the opportunities offered by digitization, the exclusivity of these agreements will force public bodies, such as research institutions or university libraries, to purchase digital content that belongs to the common cultural heritage.

As such, these partnerships constitute a commodification of the public domain by contractual means.
These kind of initiatives are typically justified on the grounds that there's no other way to digitize books and recordings. But that's clearly not true: money could be taken from other projects to pay for such work. It's really a question of priorities. These "public-private" partnerships come about because institutions like the Bibliothèque nationale de France have given up fighting for the public domain, despite being its guardians, and have acquiesced in its privatization.

It's a sad sign of the extent to which once-great libraries and galleries have been assimilated by the copyright industry and its culture of owning rather than sharing that they can't see why their complicity in this kind of enclosure of the knowledge commons is a deep betrayal of their origins and primary mission.

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Filed Under: culture, france, french national library, privatization, public domain

41 Comments

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Anonymous Coward, 31 Jan 2013 @ 11:16am

I may be missing the point
It sounds like the exclusive agreement is only concerning the newly-created digital copies of the works (which could be considered derivative works, depending on how you argue it) and not the original text of the books in question. It sounds to me like the source material is still in the public domain, so anyone can go and buy/sell/scan one of these books on their own if they want to since it's not under copyright. Unless the national library goes after people who distribute their own scanned copies, what's the problem here?
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- Mike Masnick (profile), 31 Jan 2013 @ 11:29am
  
  Re: I may be missing the point
  It sounds like the exclusive agreement is only concerning the newly-created digital copies of the works (which could be considered derivative works, depending on how you argue it) and not the original text of the books in question. It sounds to me like the source material is still in the public domain, so anyone can go and buy/sell/scan one of these books on their own if they want to since it's not under copyright.
  
  There are differences of opinion on this subject. In the US, the case law is explicit that scans of public domain works are in the public domain themselves as well:
  
  http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.
  
  That, more or less, is the question at issue here...
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  - sheenyglass (profile), 31 Jan 2013 @ 12:07pm
    
    Re: Re: I may be missing the point
    The question that comes to mind is what exactly was licensed (for lack of a better word). If these works are no longer under copyright, there are no rights to transfer to the private company. In other words, how can BnF sell what it doesn't have?
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    - Anonymous Coward, 31 Jan 2013 @ 12:10pm
      
      Re: Re: Re: I may be missing the point
      Oh they can sell it. That isn't the issue. The issue is the rule that it can't be made available online by any other means.
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      - Jason Kerr, 31 Jan 2013 @ 2:13pm
        
        Re: Re: Re: Re: I may be missing the point
        Which is kind of like having freedom of speech as long as it's an inaudible whisper.
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        Anonymous Coward, 31 Jan 2013 @ 2:44pm
        
        Re: Re: Re: Re: Re: I may be missing the point
        No that is the way the public domain works. Everyone can use it. If I want, I can take a book that is in the public domain, reprint it and offer it for sale if I want. Nothing wrong with that. But so can anyone else.
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        Anonymous Howard (profile), 1 Feb 2013 @ 3:28am
        
        Re: Re: Re: Re: Re: Re: I may be missing the point
        I think you hit the nail on the head
        
        What the private companies did is making a private contract to digitize public domain works (which process cost something to the companies). This contract forbid the library the online distribution of the works, which is similar to copyright, but not the same, since depends on a mutually signed contract.
        
        You are still free to take a book, digitize it on your own cost, and publish it for free, just for the lulz
        
        That's another good question is that why the library got into a contract with conditions like this.
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      - sheenyglass (profile), 31 Jan 2013 @ 2:50pm
        
        Re: Re: Re: Re: I may be missing the point
        "The issue is the rule that it can't be made available online by any other means."
        
        That is what I was referring to - the right to exclude other uses of the work. The basis of that kind of right is copyright. So without copyright, how can they transfer the right to exclude? I don't understand how it was a valid transaction.
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        Anonymous Howard (profile), 1 Feb 2013 @ 3:31am
        
        Re: Re: Re: Re: Re: I may be missing the point
        I think you're wrong: the source of the restriction is the contract between the library and the company doing the digitization.
        
        You're still free to use, copy and distribute the original work, or make your own digital copy and distribute it all you like.
        
        It would surely piss off the company but who cares? It's legal!
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        sheenyglass (profile), 1 Feb 2013 @ 11:20am
        
        Re: Re: Re: Re: Re: Re: I may be missing the point
        "I think you're wrong: the source of the restriction is the contract between the library and the company doing the digitization."
        
        So then what stops you just from copying the digital copy made by the company? There's no privity/contractual obligation between you and either the BnF or the company, (contracts can't create obligations for persons who aren't parties to them), so you're not in breach of their agreement.
        
        Conceivably, they could have an EULA to access the digitized documents, but even if that were effective for people directly accessing the documents, anyone they provide the copies to would not be subject to its terms.
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    - Anonymous Coward, 31 Jan 2013 @ 1:41pm
      
      Re: Re: Re: I may be missing the point
      They could probably demand that other digital copies be taken down. As these would most likely have been produced by an individual, they probably could not fight the issue to prove independent creation.
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- Jason Kerr, 31 Jan 2013 @ 2:06pm
  
  Re: I may be missing the point
  You are. If that we're the case, then it should be perfectly legal to cut/paste, scrape, or mine the documents for the text (and any other images published with the original), and create your own digital work based solely on the public domain content of the file. Based on the "exclusive contract," that can hardly be the idea, and what would be the point?
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- Anonymous Coward, 1 Feb 2013 @ 5:09am
  
  Re: I may be missing the point
  " the newly-created digital copies of the works (which could be considered derivative works,"
  
  Hold on there a sec Poindexter .... this pov has been tried and failed. What is different this time, or is it simply a matter of who is making the claim?
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Skeptical Cynic (profile), 31 Jan 2013 @ 11:21am

Why?
So how long before the average person understands that information should be available to everyone? Or that progress is going to be retarded?

I bet 1000+ years.
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- Anonymous Coward, 31 Jan 2013 @ 1:32pm
  
  Re: Why?
  A few centuries ago they would say "In 100 years everything is forgotten", but that is kind of obsolete with several parts of the copyright that exists today...
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  - Anonymous Coward, 31 Jan 2013 @ 2:00pm
    
    Re: Re: Why?
    Homer wrote the Iliad and Odyssey about 2,400 years ago, and that was about 400 years after the events being described. Those are only two of various works that have come down to use from the Greeks.
    Copyright, by preventing the reuse, and copying of culture to keep it refreshed will cause works to be forgotten. Some films and music has already rotted away in company vaults.
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Byte, 31 Jan 2013 @ 11:28am

"copyright terms can be extended retrospectively,"

This means that copyright terms can ALSO be shortened retrospectively.
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- jupiterkansas (profile), 31 Jan 2013 @ 1:14pm
  
  Re:
  Yeah, right, like that would ever happen.
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- Anonymous Coward, 31 Jan 2013 @ 2:27pm
  
  Re:
  Not if the corporations can help it. and they have a lot more influence than the public does.
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- Watchit (profile), 31 Jan 2013 @ 2:37pm
  
  Re:
  HAHAHAHAHAHA oh man, that's a good one!
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Anonymous Coward, 31 Jan 2013 @ 11:28am

In France, It all started with a Statue...
You may remember that the Statue of Liberty was given to the US as a gift. Now today, it's a national park, and frequently used in corporate symbolism. In fact, an insurance company uses it as it's logo.

It used to be a work of art to appreciate and enjoy as a gift, that was given to the people of the US to take care of.

But it was closed 5+ years, and opened up for a period of two weeks before Hurricane Sandy hit. Now it's closed again.

There are somethings that might be haunted and cursed, and one of those things seems to be that France Statue Gift. Besides being the corporate logo of an insurance company whose company policy is responsbility and golf games requiring a fleet of 5 jet aircraft (as reported in the Boston Globe Newspaper- See the recent article titled "Your Premiums, His Premium Office" I believe France has the right to be a little concerned about how gifts and items in the public domain are taken care of.
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Anonymous Coward, 31 Jan 2013 @ 11:29am

But that's clearly not true: money could be taken from other projects to pay for such work.

Not sure what you're talking about here. What "other projects" are you planning on taking money from to fund this?
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Anonymous Coward, 31 Jan 2013 @ 11:34am

it makes no difference how outraged people are or what is said about this type of 'deal' it is going to continue as long as the public or bodies representing the public are excluded from any and all negotiations. when there is money involved, the side with the most, or the side that has dished out the most in bribes, will always win. all of this type of behaviour can be traced back to the source, which was when the entertainment industries first became so incensed about maintaining an old business model, rather than adapting to the modern era. now every fucker is at it!
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- ChrisB (profile), 31 Jan 2013 @ 11:43am
  
  Re:
  > bodies representing the public are excluded from any and all negotiations
  
  What? Who do you think are creating all these ridiculous laws? So now you want to create a new government department to replace the old ones that weren't doing a good job?
  
  Here's a solution. Get governments out of the business of business. Reduce regulations and anti-market laws. We will never find the right angels to protect us, so lets stop trying.
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Anonymous Coward, 31 Jan 2013 @ 11:44am

Crowdsourcing
What would be wrong with the French setting up a cultural archive, and letting the public do the digitisation. That is a French Gutenberg project?
The main problem seems to providing the servers for the archive, which could be based at a university, which also be the best environment for dealing with tricky digitisation problems. Solving such a problem is an expense for a private company, but a valuable research project for a university.
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- ChurchHatesTucker (profile), 31 Jan 2013 @ 11:59am
  
  Re: Crowdsourcing
  Exactly.
  
  The argument that "there's no other way to digitize books and recordings" is belied by the fact that they need exclusivity in the first place!
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- Watchit (profile), 31 Jan 2013 @ 2:40pm
  
  Re: Crowdsourcing
  Because that would be a smart and efficient way of doing things... government doesn't work that way
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Anonymous Coward, 31 Jan 2013 @ 12:07pm

No way to pay for digitization, huh?
Here's a novel concept...

HAVE A FUCKING BAKE SALE!

Just like everyone else does that has a project they need funding for.
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- Josef Anvil (profile), 31 Jan 2013 @ 12:44pm
  
  Re: No way to pay for digitization, huh?
  Guess they never heard of crowdsourcing. I know that's a relatively new term to expect old librarians to know. And it comes way after bribery in the dictionary.
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shane (profile), 31 Jan 2013 @ 12:22pm

Amazingly Disgusting
Here in the states, Libraries seem to be often at the forefront of trying to get information out in the open. Many academics and librarians are people who tend to lean towards the side of less stringent copyright.

Sad to see France heading off in the opposite direction.
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Drew (profile), 31 Jan 2013 @ 1:19pm

Isn't it already commonplace?
I live in Wyoming (a backwoods place by most standards), yet even here that's the norm. I publish an annual calendar filled with historical photos from our area (it's a freebie I give to our customers), but in order to acquire the photos, I have to sign a contract with the Wyoming State Archives in Cheyenne, where they license my use of the pictures. The pictures are always from 1940 or earlier, but as soon as they get a hold of them, they bury them under a contract. If you don't sign the contract, you can't use the pictures. The contract states that you can only use the pictures once, and you have to get your use approved by them before they will allow it. They also charge $8 per use per picture. It sucks, but it's just how it is, and I don't think it's news; they've been doing this for years.
Furthermore, if you want a copy of our state laws, or even our city laws, you have to purchase a copy from the 1 approved publisher. You can find most of them online, but several laws are redacted (even in our city of 8,000 people), so that you have to buy the book to find out what they are. It's wrong, but it's how they do it. Isn't it how all the government entities do it?
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Griffdog (profile), 31 Jan 2013 @ 1:27pm

but, but, but...
As noted in several comments, something just doesn't add up in this story. Sure, the library could digitize and then exclusively offer or sell those digitizations. But it just doesn't seem like there's any law, in France or elsewhere, that would prevent any other entity from digitizing another copy of the book(s) or other form of media and then offering that version to the public for free or for sale.

Sounds like the BnF wants to be a bookstore, not a library.
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- TheSFReader, 1 Feb 2013 @ 12:22am
  
  Re: but, but, but...
  Except the BnF is the depository/conservator of the books, who are, for some of them, only in limited supply, and for some only a single remaining copy. The BnF can (and most probably will) restrict access to it, with the rightful excuse of preservation.
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We are French, 31 Jan 2013 @ 1:44pm

We are French
Hi,
We are French. We like to do things our own way. That typically involves screwing over everyone, then getting booted from office when people realize we're fucking idiots.

The French
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Watchit (profile), 31 Jan 2013 @ 2:42pm

Seriously, it's not that hard to digitize a sound recording now is it? All you need is a good microphone to convert it, then put the FLAC on tpb and bam! digitized and distributed all for the price of a good microphone and audio editing program.
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That One Guy (profile), 31 Jan 2013 @ 3:02pm

More troubling than the stealing of public domain works and privatizing them is the question of 'What's to stop them from keeping them locked up after the contract is over with a legal trick or two?'
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- Watchit (profile), 31 Jan 2013 @ 6:00pm
  
  Re:
  Holy shit good point! The way things are looking 10 years could end up 100.
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Anonymous Coward, 31 Jan 2013 @ 9:36pm

Equivalent of book burning as far as im fcking concerned
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TheSFReader, 1 Feb 2013 @ 12:26am

Who'll pay for the service in the meantime ?
One unmentionned point is that the digitizing private company's customer's target are for the most part state-sponsored universities, which will pay taxes money no get access to the documents.

So essentially, this is a direct syphoning of the taxes money to the private company, with a "for yet" time limited exclusivity...

Bad deal for everyone.
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Ninja (profile), 1 Feb 2013 @ 2:38am

Google is digitalizing all without charging for it. They will be monetizing indirectly for the service provided though.

It's all about greed my friends.
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- Anonymous Coward, 1 Feb 2013 @ 5:00am
  
  Re:
  Good point, why didn't they just ask Google to assist them with the digitization? Is there some sort of royalty setup for the BnF in the deal from the subscriptions?
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