Title:	AN OPEN DIGITAL ARCHIVE FOR AUDIOVISUAL HERITAGE IN FLANDERS: SNAPSHOT OF LEGAL ISSUES
Author(s):	Robin Kerremans
ISBN:	978-972-8939-07-6
Editors:	Piet Kommers and Pedro Isaías
Year:	2010
Edition:	Single
Keywords:	Digital archives – Audiovisual content – Copyright – Unknown forms of exploitation – Orphan works
Type:	Full Paper
First Page:	233
Last Page:	240
Language:	English
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Full Contents:	click to dowload
Paper Abstract:	At the beginning of 2008, the Flemish Government launched a multidisciplinary research project aimed at the preservation and wider dissemination of the rich audiovisual heritage of the Flemish community in Belgium through a open online archive. The name of this project was BOM-Flanders. The results of this project show that the current copyright framework is a major bottleneck for the creation of this archive. Copyright grants in principle exclusive rights to the creators (authors, performing artists, producers, broadcasters) of the content that will be collected and distributed by the central archive. In principle, the prior consent of these right holders is necessary to exploit the work to which they contributed. This requirement hampers a swift digitization and online distribution of old material. Problems vary according to the sector providing the content for the archive. Broadcasters face the contractual problem of ‘unknown forms of exploitation’. ‘Unknown forms of exploitation’ are forms of exploitation which at the moment of conception of an author contract do not exist, are not generally known or are not yet applied in practice. In many cases broadcaster did not acquire the rights which were previously unknown, such as on line rights. In those cases, the original right holder will have to give additional consent to allow exploitation of his work or performance under this previously ‘unknown’ form and new negotiations have to be initiated. In Germany the legislator recently provided a solution to this problem by granting the exploiting party -under certain conditions- exploitation rights regarding ‘unknown forms of exploitation’ even in case they did not explicitly obtain those rights in the past. This legal assignment of rights also applies retroactively to the previously unknown online exploitation rights. Cultural organizations face the problem of ‘orphan works’. ‘Orphan works’ are copyright protected works whose right holders are unknown or can not be found. Without a prior consent of these unknown or unfound authors, this material can not be exploited. In Belgium only very limited legal solutions exist to alleviate this problem. In the Nordic countries an ‘extended collective license’ was introduced by law to solve this problem. The system consists of a voluntary transfer of rights from the right holders to a collective management society together with a legal extension of the repertoire of the society to encompass the right holders that are not members of the society. Thus the collective management society is entitled to issue licenses in the name of every possible right holder, also the unknown or absent.
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