The history of European copyright means that in today’s digital globalised world, things aren’t as simple as some would perhaps prefer. The question of whether a work is in the public domain or not is a significant one when we consider the potential of the internet to put Europe’s cultural heritage at our fingertips. It comes as no surprise therefore that, with the advent of Europeana – the EC’s European cultural heritage portal – the EC has funded a calculator for just this very issue. The target audience of this calculator isn’t very clear (libraries and archive institutions or the general public?) but is currently accessible to anyone.
Taking into account the complexities of the calculation of the term of copyright protection, such a calculator can only be a good thing if it actually works. Otherwise it only leads to further confusion and the potential for people to incorrectly use protected works under the mistaken belief that they are out of copyright.
I therefore looked at it with lots of curiosity. The result is that the calculator in question gives completely inaccurate responses for film in 29 out of 30 countries boldly stating that for works first communicated to the public over 50 years ago – “The work is in the public domain. You can duplicate, build upon, and distribute it without permission from the right-holder.”
This is wrong.
Article 2 of the Council Directive 93/98/EEC of 29 October 1993 states “The term of protection of cinematographic or audiovisual works shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as co-authors: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.”
When I wrote to Europeana to express my concerns about the impressive scale of the mistake, the official line was, essentially, “this is ok because there are a number of disclaimers on the site”. These disclaimers explain that there may be other rights to consider for a creative work which may mean that the work is still protected. Is this a public domain calculator then? What is the use of such a tool?
If Europeana cares about its reputation, either this calculator shouldn’t be online until it has been fully checked or it should be renamed appropriately. Authors from other sectors – please check that your rights are correctly represented on the site and please let the European Parliament and the Commission know if they are not.