Dirty Deeds: French National Library Privatizes Public Domain, Part 2

from the because-the-situation-hadn't-hit-MAXIMUM-UNCOMFORTIBILITY dept

Earlier in January, the French Ministry of Culture proudly announced a fresh public-private partnership between the French National Library and the privately-held ProQuest, defining how the company will digitize 70,000 books originally published between 1470 and 1700. The agreement sparked outrage among free culture defenders, who denounced a privatization of materials in 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."

As none of the agreement partners bothered to reply to inquiries from journalists and free culture advocates, the only source of information was a press release from the Ministry of Culture mentioning an official agreement between the Library (Bibliothèque nationale de France, BnF) and ProQuest. The release was highlighting the somewhat obscure branch "BnF-Partenariats" as executives of the contract, and that this agreement is part of a wider initiative: "Early European Books."

The issue here is not commercial use of materials in the public domain but the labyrinthine logic of the agreement. This logic proposes that a client from the public sector (i.e. research and education institutions) will buy a number of works handled by another public institution (i.e. the French National Library), and the profits will reimburse money advanced by a private service provider. A painful situation for our cultural heritage, forcibly entrusted to be the square peg to get into the round monetary hole.

What is unclear, however, are the legal terms under which the digital copies will be handled. In plain English, the BnF has signed an agreement to sell access to digitized copies of books in the public domain. This makes a travesty of its official role: the BnF is supposed to grant access to these works, but the BnF-ProQuest agreement actually blocks access. In the present (whacko) case, the Library – that is, the public institution invested with the power to manage commons, – not only does what is normally the publisher's job, selling, but it also monetizes these works, thus acting as a merchant, which takes work from publishers. The larger questions this raises over exclusivity and ownership of these digital versions are very important. From what's been said to date, it seemingly implies that the digitization of those books means the outcome is a brand new production owned by the ProQuest, the digitization service provider.

Even more strange? ProQuest's agreements elsewhere are quite different, and not nearly as controversial. The BnF-ProQuest agreement is a part of the "Early European Books" initiative. In addition to the French, four other national libraries are a part of the effort: the Royal Library (Denmark), the National Central Library of Florence (Italy), the National Library of the Netherlands, and the The Wellcome Library, London (UK).

The details for each of these agreements, however, are quite different than the agreement in France. Indeed, in every other case, ProQuest digitizes, at its own expense, the works in the public domain operated by the respective partnering national library. It then offers free access to the digital versions of these materials within the country. As ProQuest needs to earn money, it sells the access to its database to other countries (through subscriptions contracted by the universities). According to the BnF-ProQuest agreement, however, no free access to the digital versions is provided other than the very limited version as described above.

Oh, and as if a national library agreeing to sell the country's cultural heritage was not absurd enough, when asked for the details of the agreement the BnF has now admitted that its contract with ProQuest has been misplaced. One might properly note that, so too, has the public domain been "misplaced" with this deal.

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Reader Comments (rss)

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  1.  
    identicon
    Anonymous Coward, Feb 19th, 2013 @ 2:00pm

    Google offered to do it for free and they refused.

    Now this crap?

     

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  2.  
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    Anonymous Coward, Feb 19th, 2013 @ 2:01pm

    Cultural thieves must run France. That's the only logical explanation.

     

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  3.  
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    jackn, Feb 19th, 2013 @ 2:03pm

    Sounds fair enough. They get the digital copies they made. Not the original works (which are Public Domain). If I take a picture of a public domain work, I own the picture, get it?

     

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  4.  
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    Anonymous Coward, Feb 19th, 2013 @ 2:18pm

    Re:

    not really - in fact, chances are you'll get arrested for whistleblowing or some other trumped-up charge for not paying Proquest.

     

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  5.  
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    Anonymous Coward, Feb 19th, 2013 @ 2:40pm

    The French waved the white flag while everyone else fought for their rights and we're all surprised?

     

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  6.  
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    mikey4001 (profile), Feb 19th, 2013 @ 2:50pm

    If ProQuest maintains digital rights/control only over the copy that they made, I see no real problem here. As long as someone else has the ability to create and distribute their own digital version of the public domain works in question. If, on the other hand, ProQuest has managed to get some kind of contract with the government that these works are no longer in the public domain, then that could be a real problem.
    For those familiar with the FRBR Group 1 entities, this strikes me as a question of work vs. expression. If ProQuest owns the "expression", no problem. If they own the "work", then problem.


    http://en.wikipedia.org/wiki/FRBR

     

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  7.  
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    PRMan, Feb 19th, 2013 @ 3:07pm

    Re:

    Does the term, "10-year exclusive agreements" mean anything to anyone?

     

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  8.  
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    johnny canada, Feb 19th, 2013 @ 3:08pm

    Did not Google offer to do this for free and keep it in the public domain ?

     

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  9.  
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    Anonymous Coward, Feb 19th, 2013 @ 3:21pm

    Re:

    It is France! Google is hated like the plague by government and industry. Protectionism = France, Protectionism |= Google.

     

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  10.  
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    Anonymous Coward, Feb 19th, 2013 @ 6:03pm

    Ahhh Socialism...

    French Revolution to Jean Jaurès to François Hollande - How are the actions described above good for the common wealth?

    Thus the Faulty argument that Socialists always put forth to seize power - then change the meaning of “common wealth” to empower the State.

    Orwell’s Animal Farm is a fine example of the Socialist’s Defective theory, unless, of course, you believe some are “more equal that others”.

     

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  11.  
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    Anonymous Coward, Feb 19th, 2013 @ 7:43pm

    Let me get this straight. The French Ministry of Culture signed an agreement????? who gave them the right to bypass their own legislature and write new law? Is this not the same thing a new copyright law? My incredulity increases with my admiration for their audacity.

    (fixed spell-checker)

     

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  12.  
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    special interesting, Feb 19th, 2013 @ 7:56pm

    Comment 11 was mine. It just slipped out. Been waiting for a good cultural theft by copyright to post this. It kept growing from an earlier post I made.

    Having read TechDirt for a while because it seems to be one of the most intellectually profitable sites existing. (no pun) This is an attempt to explore why it matters to fuss so much about (unfortunately) obscure copyright laws and such. Starting with a rough definition of culture with examples and proceeding to how culture is limited by copyright laws and the importance of the public commons as a working cultural concept.

    My argument is in reality is 'what is awareness'... Culture is an awareness of our surroundings including people, places and the way we live.

    What is culture anyway? Culture is one of them touchy feely kind of topics which young adolescents worry and get pimples over. Every person has their own cultural heritage to express. It is wisdom to foster an environment that makes cultural transfer easy and enjoyable that way your kids will get less achene. Yes, how and when you learn of 'birds and bees' is firmly embedded in culture.

    Culture is the words we use when talking to our family, friends, strangers, business, TV commercials (argue with me), political speeches and pretty much every thing we hear in the news and backyard fence gossiping. Culture is an inseparable part of us. Culture is the meam of meams about which we flow our citizen awareness.

    Without culture we could not even speak to each other. With every word we speak there is a reference to a dictionary entry of which there might be several but more importantly we have most likely ignored the official meaning of the word and arbitrarily expected your friend/listener to “understand what you mean” (and usually get away with this especially since we think its clever.) It's a mild form of slang and of course there is the creative use of slang and lets not forget invectives like cussing. Its normal to imply, suggest and hint all at the same time and in one sentence. Language evolves along with culture in a way like regional accents do.

    Culture is impossible to pin down exactly because of its changing, morphing nature. It can be described parts of it at any time but it would only be a small local still photo of a moving event the size of the universe.

    A song is played once and we interpret it in the light of our present attitude. We discuss with our social group what the song means and come up with some current consensus of the meaning of the song we shared. The shared meaning of the song is now anchored in our local and now changed new culture.

    Culture is important. The stories given to you by your parents as you became aware. Which ones do you remember as a part of yourself? (are they copyrighted or trademarked? Does this make a difference? And could you tell if you were a child?)

    Culture is important. It is how we as a people, society share the knowledge that WAR IS BAD. Killing is wrong and treating your neighbors as cool people is good. Did I miss a step anywhere? How we act is a function of what we interpret from CULTURE.

    Culture is important. Fill in the blank here. Special interest regulation is bad, to much government is bad, abuse of copyright is bad. How do we learn this except by talking to each other and building a shared culture that wont tolerate such abuses.

    Most all have heard that psychologically we are more worried about acting in the way everyone around us (culture of behavior of copying the local culture. pun) expects than what reality demands of us. (example; high school biology lab experiments where the average student is looking more at their competitor students than the lab instruction manual if only because they partied to much last night to read it.)

    What is reality anyway? Culture makes a good way to describe our lives in a dynamic way.

    Punch line: copyright (and all the ridiculous new laws surrounding it) regulates culture. It removes, prohibits, denies and destroys culture because it stops or slows by many years the sharing of such cultural items such as books, comics, songs, movies, research papers, etc. etc. etc. Keep in mind there is a real cultural need to share these items or data with your children (do it for the children! As if that phrase is not over abused) when they come of age.

    By the time your kids grow up many books and songs will be out of print or publication and will not be available at any price or with growing copyright monopolies and shrinking economies only available at an unfordable price which is absurd because all this can be copied at an economic price of zero. Kids books are notorious for their turnover.

    We already live in a media market so starved that downloads only seem to increase the demand for media sales. Starving the market only serves to do what and to who? Since copyright serves to effectively control the sharing of culture what does that say about our freedom to express ourselves in any such way?

    Example of how copyright edits history: Martin Luther King's (MLK) I have a Dream public speech which has been claimed by his family which wants to charge everyone to see it. MLK would blow up and yell at his family and spank them for such foolish idiocy. The very people whom this public message he gave to could not afford to purchase it at any price. To hear the speech one must go to the family's museum and pay to get in or license it on an individual basis. His legacy speech is now sequestered in a way that any opposition group could never do. The other side wins. Good culture has been selectively edited from the public commons and flushed down the toilet of selfish interest.

    The concept of public commons is seems to be lost in our current cultural dynamic. It is human nature that we all want to 'get ahead' and we do this by paying attention to our cultural surroundings. Our success is gained through cultural intelligence. In that bio lab experiment in school was that group you were trying to learn from doing it right in the first place? In the whole class there are always a few that have read and understood the lesson its natural to 'look over their shoulders' for covert intel.

    In an attempt to foster more creative works we give the author the temporary copyright to withhold from the public commons for a short time. I expect this timespan to be less than 15-30y. Furthermore such a timespan would in no way hurt publishers or authors as 95% of media profits are made within the first 2 years. There are exceptions to this but one can argue that once a media product becomes massively popular it is already become popular culture and withholding it from the public commons for even 15-30 years is to much.

    The entire concept of copyright is to benefit the public through public commons ownership. We all benefit by increasing the size, depth and breadth of the public commons in so many ways. When we increase public commons we improve the quality of the cultural language we use to share ideas and concepts that we cannot find the exact words for. For example; Do I have the eloquence and depth of passion that MLK brilliantly displays in his I have a Dream speech? No. So all I can do is reference his good work and hopefully can provide you with a copy of it immediately. We all can see the need to increase the size of our cultural universe.

    I have no pretensions that any of this essay is original or creative or even funny. I even remember some of it from a middle school instructor and of course reading of this site and others. It is gathered from bits and pieces of random trivia glued together with some sort of cultural awareness (wisdom would be to strong).

    My official comment on eternal copyright laws is a modern cultural emoticon :P

     

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  13.  
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    gnudist, Feb 19th, 2013 @ 8:11pm

    Re:

    Never gonna live that down are they?

     

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  14.  
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    Anonymous Coward, Feb 20th, 2013 @ 3:15am

    Re:

    The libraries have control over the rare books, and and few people can actually see them never mind make their own copies. These are not items that can be run through a photo copier. therefore it is unlikely that anyone else can make a copies, as access to the originals is controlled to preserve them.

     

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  15.  
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    Ninja (profile), Feb 20th, 2013 @ 3:58am

    Re:

    In Soviet Russia... Oh wait.

    Google doing it for free would not put money in determined pockets thus depriving them of their weed and hookers.

     

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  16.  
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    Anonymous Coward, Feb 20th, 2013 @ 3:58am

    it seems to me to be happening almost everywhere. a countries leader does things that outrages the people. an election comes up and the people vote out of office the person that has been an arse hole and taking the rise (in this case, Sarkozy). in comes someone else, full of piss and importance, full of promises and changes that will be made (in this case Hollande). what is the end result? things are exactly the same as before, just a different name at the front door!! is there actually a single country that has a leader, a government that is 'by the people, for the people, of the people' and really does what it is elected to do, protect the people and the country? i cant think of one!

     

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  17.  
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    Rogue (profile), Feb 20th, 2013 @ 8:44am

    Re:

    I didn't want to get into a discussion about Google because it would be a highly speculative one. Indeed, one could claim that the whole Lex Google case. Not sure people know about the story, but to cut it short: French newspapers have asked for a retribution from Google when the engine indirectly uses the content they produce. There was a pretty voicey beef between Google and the govt, and the President (Hollande) promised to support a bill regulating the whole interaction. A few days ago, Google proposed a 50M-euro-per-year retribution to the newspapers which asked for nearly twice as much.

    All in all, one could argue that such a politically non-neutral and tricky situation could have prompted agreements with ProQuest instead of Google. Such a vision remains, however, a speculation as there is nothing robustly corroborating it thus far. Lastly, the "Early European Books" initiative has been kicked off long ago the Lex Google story, so the two can very well be totally independent.

    My 2 cents :)

     

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  18.  
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    Lennart Regebro, Feb 22nd, 2013 @ 11:31pm

    I dont' know anything about the french deal, but...

    If the deal is that the company can digitize all these books, but that they get exclusive use of those digital files for ten years, then I find that to be an OK deal.

    OK, it will take ten years. But in ten years, the public will have digital copies of these previously analog books.

    The alternative is that the library pays for the digitization, and they probably simply don't have the money.

    The books are still public domain. Anyone else can still copy them and put it out for free, as I understand it. So there's no real problem here.

     

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  19.  
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    special interesting, Feb 23rd, 2013 @ 8:15am

    If we could actually count on lawmakers to follow through that would be good enough but that never ever happens. Keep in mind that a great majority of the current batch of politicians will not be in office in 10 years(yea) and a whole new batch of wet behind the ears will be in place bending them (ears) to the same special interest groups.

    Where I live its famous that all new taxes and tolls are labeled as 'only temporary' and poof... in comes a new political regime with no memory of such a 'promise' (even though it was in writing). No tax nor toll has ever been rescinded and copyright and trademark law has also never shrunk (yet).

    “One week, 6 months, a year, 10 years? Wasn't the original copyright laws supposed to be some short time span to increase public commons and look how that morphed into a... wild bloated boondoggle of monopolies and incredible special interest pressure in the most absurd ways. I am hesitant to grant any leeway at all.”

    which is an (slightly edited) excerpt from another only kind of related more technical post: http://www.techdirt.com/articles/20130216/02495122006/publishers-flip-out-call-bill-to-provide-open- access-to-federally-funded-works-boondoggle.shtml#c667

    I'd bet the official one dollar (cultural reference: Trading Places an Eddie Murphy movie) that there will be special interest originated legislation (or shady agreement on the side like this deal sounds like) later on about 9 years from now.

    The point is that public commons is being reduced and the threat of it NEVER being rejoined is significantly large.

    I think the only consolation or concession offered to the digitizer would be to sell advertisements on the download page and maybe attach an few adds to the work itself. I could accept that.

     

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