NISV Flowchart Online Publication
Dealing with copyright – flowchart online publication: how it grew
Intellectual property law – usually not quite correctly abbreviated to copyright – is a challenge in many television archives. To provide an optimal service and to make archive material available for the general public, media professionals, education or research, it is important to determine the intellectual property rights (IPR) of the audiovisual works in the collection first. But for those who want to publish or otherwise reuse archive material online or on radio or television, the legal situation of archive clips is often a tangle. Less experienced web editors or program makers sometimes don’t even know where to start.
In 2017, the Netherlands Institute for Sound and Vision (NISV) developed and started working with a flowchart for online publication and accompanying rights forms for internal use. The immense and daily growing archive covers more than a century of radio, television, film, photo and more.
The flowchart originally developed by NISV provides structure by asking the right questions to determine whether an audiovisual work can be marked as ‘public domain’ and can be put online. Sound and Vision strives to make founded choices and, if necessary, follow a well thought-out risk analysis.
BRINGING THE FLOWCHART TO THE INTERNATIONAL STAGE
In 2017 NISV’s IPR specialist Maartje Hülsenbeck presented the flowchart as used in the Netherlands at the FIAT/IFTA World Conference in Mexico City. Many colleagues applauded the initiative. With the kind permission of NISV the FIAT/IFTA Value, Use and Copyright Commission recently decided to translate the flowchart and to make it available for free online, via the FIAT/IFTA website.
Online publication by using the flowchart
The immense and daily growing archive of the Netherlands Institute for Sound and Vision covers more than a century of radio, television, film, photo and more. To provide an optimal service and to make archive material available for the general public, media professionals, education and research, it is important to determine the intellectual property rights (IPR) of the audiovisual works in the collection first.
In 2017, Sound and Vision developed and started working with a flowchart online publication and accompanying rights forms for internal use. Firstly, the flowchart creates awareness of copyright. But most of all, it provides structure by asking the right questions to determine whether an audiovisual work can be marked as ‘public domain’ and can be put online. Sound and Vision strives to make founded choices and, if necessary, follow a well thought-out risk analysis.
Registration of rights in MAM system
Going through the steps of the flowchart leads to the determination of the right status of a particular media asset and the record of this status in Sound and Visions’ Media Asset Management system. The research results are recorded in rights forms, which will be connected to the media asset. In this way, the research on the right status is connected to the MAM system and is recoverable at any time.
With the outcome we can determine whether archive material can be made available to the public: e.g. online and marked as public domain, online and reusable with a cc license or online on one of our own websites. Having this information available in the MAM system makes the collection accessible and easy to reuse.
National Socialist Movement film collection revealed: available and open online
At the end of May 2018, Sound and Vision released its National Socialist Movement film collection. In collaboration with the Dutch Institute for War, Holocaust and Genocide Studies (NIOD), Sound and Vision published this controversial film collection as part of the WOII Open Data project. The collection has both scientific and social value. By releasing the collection in the context of a thematic, national online portal, the memory of this period is kept alive and further research and large scale reuse is stimulated.
From a more archivist point of view we were interested in opening up our collection in collaboration with external partners and investigating the possibilities for the use of linked open data. Finally, this collection provides an interesting case study into copyright, privacy and ethical issues.
Flowchart and risk reduction
Sound and Vision used the flowchart online publication and followed the steps to determine whether this collection could be put online according to Copyright law (see below). An external IPR lawyer, specialized in confiscated war material, advised us in handling this controversial film collection. Sound and Vision also made a risk analysis and assessed the ethical concerns and/or objections that could raise from certain people/groups (see below).
Through our partnership with Network War Collections and the Dutch Institute for War, Holocaust and Genocide Studies (NIOD) we learned more about the collection, the possible risks and the urgency of opening it up, which provided this project a solid foundation. We also drew up a Q&A and informed the Managing Director and our communication team of possible critical questions and media attention that this publication could attract.
Releasing this collection was an excellent starting point for big scale reuse by e.g. researchers, education and the general public: Sound and Vision published this collection on various websites such as in.beeldengeluid.nl and our open access portal Open Images (downloadable media) and donated the material to Wikimedia (after which reuse on Wikipedia is possible). The collections can also be found in and reused from one central open access portal from WOII Open Data Depot project. An online theme channel was created as well with highlights from this film collection and BeeldenGeluid WIKI provides more detailed information and context.
To make sure the context of the published films is clear to the audience, on Open Images and Wikimedia the description of each film includes the following text:“Confiscated war material: propaganda films of the National Socialist Movement Film Service released in the context of WOII Open Data Depot in a partnership with Sound and Vision and Network War Collections (May, 2018)”.
Visibility of the institute by press attention and presentations
At the end of May 2018, a press release/symposium was organised at Sound and Vision on the subject. People from several institutions were invited to attend various presentations and a panel discussion about the historical importance and the urgency to release this content as open data. A big press pickup was met: more than 50 websites, including several Dutch newspapers and news related websites published articles on the release. It was spoken about twice on the national news radio station in Holland (Radio 1) and it was featured in a well known and well watched late night talk show in Holland (PAUW), the night before the press release/symposium took place. Sound and Vision received a lot of reactions on this subject on social media (facebook, twitter), from very positive to some very negative as well (as expected).
Sound and Vision also presented this project at the Night of the Dictatorship on September 14th, 2018 in The Hague, at the FIAT/IFTA World Conference on October 11th, 2018 in Venice, together with Dutch Network War Collections at the AMIA conference on November 28th, 2018 in Portland and as a case study during the workshop Open Data WOII NOB of Dutch Network War Collections on December 6th, 2018 in Amsterdam.
Assessment on Copyright law, ethical and privacy issues
Before the release of these films an assessment needed to be done whether these films could be made available online according to Copyright law. So we needed to determine whether these films were in the public domain, which means that works such as these films are no longer protected under Copyright law.
In order to do this, Sound and Vision used the flowchart online publication. Each work (film) could be split into two components: film (moving images) and music.
To find out if these films are in the public domain, we needed to know whether the author of the films was an independent person or an organisation. In the latter case it is possible to apply the protection term of 70 years after first publication, which would have been lapsed at the time of release.
Therefore, the following was considered:
- The films are dated and published in 1940-1944;
- The films mention the National Socialist Movement Film Service as the author on the films, no individual persons are mentioned on any film;
- The Film Service was a subsection of the propaganda department of the National Socialist Movement and therefore part of this Movement. This Movement was a foundation, which means: an organisation;
- Based on Dutch Copyright law we concluded that the National Socialist Movement was the author and therefore copyright holder of the films;
- The National Socialist Movement has been copyright holder until 1944, when this organisation was dissolved by the Dutch State. The Dutch State obtained the copyrights of the films based on a Dutch decision on the dissolution of organisations that betrayed the Dutch State during the war;
- Apart from this transition of rights, according to Dutch Copyright law copyright lapses after 70 years after first publication when the author is an organisation such as a foundation;
- Sound and Vision concluded that because the author of the films is an organisation and 70 years have passed since first publication, copyrights have lapsed and the films are in the public domain;
- Regarding the music: some of the music was recognizable and also in the public domain. Further, we did a risk analysis on the other music we didn’t recognize. Sound and Vision considered that this was either music of the National Socialist Movement itself, or the copyright would belong to someone who would most probably not speak up after online publication, considering the controversiality of this material.
When films are in the public domain, Sound and Vision does not immediately publish them online, accessible and downloadable for anyone. First the following privacy and ethical check on these controversial films was done:
- People are recognizable in the films. These people and their relatives have portrait rights (which are Dutch rights, part of copyright) and could protest against the online publication. The people who are still alive, recognizable and who did not obviously consent with publication, could also invoke the GDPR. Sound and Vision has weighed these privacy interests against its own right of freedom of expression and concluded that the latter should prevail in this case.
- Sound and Vision also did an ethical check. We discussed the possibility of certain parties misusing the collection. Sound and Vision and The Dutch Network War Collections considered that the chance that this would happen is relatively small. Parts of the collection were already available, even some of it online, but not complete, marked as public domain, contextualised and reusable yet. We also concluded that apart from the propaganda style of the films, there are no horrible images to be seen.
- Further, there could be organisations, such as Israeli organisations and organisations that provide support to children of parents who were member of the National Socialist Movement, disagreeing with online publication of these films. We prepared a Q&A to answer all possible questions about the how and why of this publication.
- Sound and Vision and the Dutch Network War Collections decided that making these films available to the public and especially to researchers who can download the material for research is of public interest and that this interest prevails over possible privacy and ethical issues. Therefore Sound and Vision decided to publish this material open online.
This controversial collection of confiscated war films was waiting for a good moment and context to be released: Sound and Vision had to determine its position in why it is necessary and urgent to release a collection like this. As a cultural heritage institution, Sound and Vision strives to provide access to as much archive material as possible concerning topics such as World War II to the general public and researchers in specific without being selective. Making this material available as open data is necessary for reuse in Digital Humanities research. By releasing these films in such a way, Sound and Vision facilitates and stimulates research on this topic.
Netherlands Institute for Sound and Vision, March 7th, 2019
Maartje Hülsenbeck, copyright lawyer
Maartje Hülsenbeck, NISV
Marjolein Steeman, NISV
Arno Korteman, NISV
Ruurd Blom, NISV
Maarten Brinkerink, NISV
Friso Blankevoort (designer)
Montserrat Bailac Puigdellivol, TV3
Virginia Bazán Gil, RTVE
Michael Liensberger, ORF
Valentina Martone, RAI
Marie-Agathe Pichot de la Marandais, INA
Axel Roche-Dioré, INA
Erwin Verbruggen, NISV
Rita Marques, TV CULTURA
Ellen Barbosa Abreu, TV CULTURA