Cultural Heritage and the Public Domain

The recent report of the “Comité des Sages” recommends that “cultural institutions should make public domain material digitised with public funding as widely available as possible for access and re-use”. One of the objectives of the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities is “encouraging the holders of cultural heritage to support open access by providing their resources on the Internet.” Libraries often are the only source for public domain material such as unique manuscripts. This position puts them in power when determining the conditions under which reproductions can be delivered. This position is prone to change as soon as public domain material is available via internet and thus can be copied by anyone. We can observe a variety in re-use policies among cultural heritage institutions, in which not only libraries but also archives and museums are involved. And there certainly is no unanimity when it comes to commercial re-use. The situation becomes even more complicated when public-private partnerships are involved in which the commercial party poses restrictions on access and/or re-use.The paper analyses the legal issues that are at stake in deciding about the library’s re-use policy of digitised heritage material within the public domain. It also gives an overview of arguments pro and con open access without any restrictions. Its conclusion is in favour of no limitations for re-use, commercial or not.Finally, it analyses public-private partnerships in the light of these conclusions.