Abstract
The goal of the study is to find a means of achieving an adequate balance between the conflicting interests of producers and users of digitised versions of rare documents that record public domain content within the EU. The study examines claims of exclusivity made in respect of digitised versions that reproduce public domain content and attempts to formulate a legal model that could bring about a more equitable balance between the competing interests of users and producers within the existing institutional capacities and the conceptual parameters of the EU law framework.
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An incunable is defined as an early printed book, especially one printed before 1501. ‘Incunable’ Oxford Dictionaries (OUP March 2018) <https://en.oxforddictionaries.com/definition/incunabulum> accessed 31 January 2019.
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This is because from a copyright law perspective, the legal issues surrounding the digitisation of three-dimensional non-planar surfaces can be different from the digitisation of two-dimensional planar surfaces. For example, the digitisation of a two-dimensional surface such as a manuscript or a papyrus are usually automated but yet involve the exercise of personal, creative judgement on the part of the person carrying out the digitisation to varying degrees, depending on the document being digitised (see Chap. 7, Sect. 7.1). Meanwhile, the creation of a two-dimensional digital reproduction of a three-dimensional surface such as the conical surface of a pottery artefact usually requires the exercise of a substantial degree of personal, creative judgement on the part of the person carrying out the digitisation. Thus, while the copyright protectability of a two-dimensional digital image of a two-dimensional surface is subject to some debate (in terms of whether the resulting digital image is a mere reproduction or incorporates sufficient originality to attract copyright protection), a two-dimensional digital image of a three-dimensional surface is more likely to incorporate sufficient originality to qualify for copyright protection. For this reason, a distinction is made between the digitisation of two-dimensional and three-dimensional surfaces, and the study limits its focus to the digitisation of two-dimensional surfaces.
- 3.
More information about Europeana available from <www.europeana.eu/portal/en/about.html> accessed 31 January 2019. See also Sunimal Mendis, ‘Europeana’ in Marie Cornu, Fabienne Orsi and Judith Rochfeld (eds), Dictionnaire des Biens communs (PUF 2017).
- 4.
Proquest LLC is a company based in Michigan, USA. It is active in the digitisation of rare textual public domain materials in Europe both in the capacity of a producer and distributor of digitised versions. More information available from <www.proquest.com/> accessed 31 January 2019.
- 5.
The Public Domain Review was founded in 2011 and maintains an online journal that provides a platform for the publication of public domain material with particular significance. More information available from <http://publicdomainreview.org/about/> accessed 31 January 2019.
- 6.
One of the main reasons why this data will not be used for statistical analysis is that there are questions on the representative nature of the sample from which the data was drawn. It was decided at the outset that finding a representative sample and gathering data which would be suitable for statistical analysis would be beyond the scope of this research project considering the constraints on time and resources. In fact, gathering a representative sample may prove impossible as rare documents tend to be heterogeneous as regards social value and market demand and the costs of producing digitised versions of rare documents (even those that belong to the same collection) can widely differ. Furthermore, memory institutions also have their individual perceptions and priorities as to the production and dissemination of digitised versions that are determined by the administrative and funding structure of each institution, the personal viewpoints and attitudes of the administrative officials, as well as the unique cultural values of the jurisdiction where the memory institution is located. Consequently, it may be impossible to draw a representative sample of memory institutions in Europe which could be utilised for the purpose of drawing statistical generalisations.
- 7.
‘Gambit’, Oxford Dictionaries (OUP April 2017) <https://en.oxforddictionaries.com/definition/gambit> accessed 31 January 2019.
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Mendis, S. (2019). Objectives and Methodology. In: A Copyright Gambit. Munich Studies on Innovation and Competition, vol 11. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-59454-4_2
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DOI: https://doi.org/10.1007/978-3-662-59454-4_2
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