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Posted on Techdirt - 19 February 2013 @ 1:57pm

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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