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Section 11. Science of law
Ahmeti Edmond, Phd Candidate in Law Ministry of Culture of Albania, Tirane Phd Candidate in Law, Faculty of Law E-mail: [email protected]
Digitalization of culture heritage and the connection with deritative works of copyright law
Abstract: Uncertainty for the digitalization of cultural heritage as in EU countries is obviously also present in Albania. Albanian photography institution "Marubi" has taken a leave to digitized cultural richness of its funds as to make its archive accessible for education and knowledge of the culture for future generations. However this good will for spreading of culture through digitalization programs should be developed on a legal framework that satisfies all sides, as holders of rights, the protection of copyright, publishers, libraries, archives, but also the public interests. This article is focused on the forecat of actions in way to suit this will, to distribute this cultural heritage of a country in the context of copyright. It is evident that this vision must be clarified first frame in an international context, and from that deriving the appropriate provisions in national legislation.
The purpose of this paper is to describe the specific cases to understand the connection of copyright with digitalization conducted by relevant institutions of culture.
Keywords: Cultural Heritage, Legal Framework, Originality, Marubi Phototheque, Photographic Works.
Introduction
This paper is based on the study of archival fund of Marubi Photo Gallery in conjunction with the initiative of this institution for digitization of archival fund and in the perspective of other culture organs to implement the digitalization as a mean for protecting and accessing, promoting the cultural heritage in interest of scientific researchers; for the interest of education of the new generation of cultural history archive of a society and in the interest of the general public on issues of national culture. This process is very important and obviously that implies aspects and different elements of the welfare and performance of digitalization such as the copyright on derivative works that will be created as a result of submission to another form, different from the original, that are precious works with a big importance for the historical and cultural memory of a country. Normally, this process of digitalization of cultural heritage is linked inevitably with new legal consequences and creation of new legal frameworks.
Archival cultural heritage funds can be in the form of texts as may be books, manuscripts, letters and newspapers, etc., in the form of images as may be photographs, paintings, maps of various drawings and any other form of presentation through image and in the form of objects as may be statues, sculptures, objects of value, coins or stylized vases etc. Another element that follows from the use of digital technology is that many works have the copyright protection and working on digitalization without the prior consent of the author we can
be on the incident of infringement of author's copyright. On digitalization practices done by cultural heritage institutions, is large sphere knowledge. The Albanian law on copyright provides exceptions from this protection with the clear purpose to protect, ensure and promote archives, being this institution Marubi Phototheque of other institution of cultural heritage.
In legal provisions is mentioned that due to the protection of the original work is allowed to make a copy in any form while in the case of digitized copies would then be inevitable to have their multiplication. The aim is to preserve the work that is likely to be damaged and in this sense the law has to provide provisions regarding an analog reproduction, by the other side the digitalization helps on finding a super audience and after that entering in a new mode of management suitable for the digital environment. The fact is that in Albania is a lake of legal provisions that regulate the practice of digitizing collections of works of cultural heritage, I am talking here about the way the treatment works on museum exposure. Another element remains the consideration and inclusion of TRIPS agreement in national laws, concretely on the chapters that contain the exceptions from protection on copyright. So the provisions of this agreement suggest to be taken into account in the national laws of copyright new exceptions that are appropriate for cultural heritage institutions. Perfect balance would be if the laws governing cultural heritage can ensure not only the physical protection of the authentic work but also the long-term public access on them for purposes already known
such as: knowledge and education to the culture of a society for centuries.
Often, cultural institutions that take initiatives in digita-lization projects are not fully aware if they have, or may own, specific rights derived from activities that convert their physical form to digital form. Often exists the impression that some of them that do not agree to accept that these works are part of public domain or even if they are digitized works they have a copyright. These institutions in this process mostly are based on public domain status of such works. In the case of works that are a in the public domain is not required authorization but when works are not on public domain you can act or being based on legal exceptions or you have to procure the author's consent. These institutions, at the same time are uncertain because allowing unlimited reproduction and digitization of their collections soon will reduce them significantly the sources of income. Some online libraries on the Internet that accumulate artworks shaped as image mainly in the public domain often face allegations of status of these digitized works. Examples of such cases are usually in jurisprudence regarding the status of these funds digitized, especially in terms of photography.
Every state institution in these conditions has its dilemmas to undertake such steps because it is about the national cultural heritage treasures, and of course that legal uncertainty in this case is present. If we talk about Marubi National Photo Archive it is understandable that it has a lot of problems experienced by a large number of member states of the EU with regard to the "obstacles to ensure that the material in the public domain remains in the public domain after digitization, mostly about the pictures and the rights of photographers" [1], "Fear of loss of control, the use of public domain materials to generate income and difficulties to protect the public domain status are reported as potential obstacles ...".
National Phototeque Marubi is created in 1970 after the donation that Gege Marubi has done to state to his personal archive that was an heredity of 3 generation and contained 150.000 photos. In this archive exists photos in negative form of all the formats, from 30x40 to 6x9 in glass editions. Photos have been collected from 1858 to 1959. This is one of the most rich archives of the Balkan. In it can find photos with different issues from ottoman vezires and officers to councils or ambassadors of different countries such as Italy, Austria, Rusia, Serbia France etc. Also there exists photos from the first and the second World Wars, important Albanian personalities such as: Luigj Gurakuqi, Ndre Mjeda, Adreni, Ernest Koliqi, etc. Gege Marubi the last element of the Marubi's dynasty was an genius of landscapes, portraits, he was also was a good master of infra-red photos, technique learned by him in France where he studied. This techniques was also used by other photographers of Shkoder such as Shan Pici which worked from 1926 to 1962 in Lezhe. He by himself donate to the state more than 70 photos in form of 18x24, 4x6 in glass plaques also films in celluloid. He was considered as the photographer of the north nature which in Albania is known with the name
of Malesi. The main topic of the photos donate by Shan Pici were: the urbanistic, the bazar, landscapes, sport and a lot of other topics.
European Commission concludes that "the legal provisions for digital reproductions of works in the public domain are unclear and require further attention", similar attitudes pointing to the fact that "public domain content in the analogue should remain in the public domain in the digital environment" [2] too are used very often. Therefore digitization activity primarily requires legal clarification to the required standard of originality and authorship. Another element is the classification of the work created by digitization. If the original works will be protected by copyright then works created by this process will be considered as derived works.
The impact of the copyright law and functions of digi-talization projects.
The main subject of digitalization, in first instance is the ability of public to access in these archive and cultural heritage institutions through technology installed in their premises or from other countries via the Internet. In this way the original copy of the physical work will be less usable in the case of "fragile" works were due to the conditions of its asurance will be very difficult, but the digital copy allows the public to examine the contents with respect to each element, which in the case of original work in her physical condition it would not be possible because of its conditions. At this point the new law of copyright in the Chapter of restrictions allows to make a copy to the original work guaranteing besides preservation, protection or management of collections and access to the full on the content of any act which may be object of study or cultural — historical interest to the general public.
In cases where a donated collection consists on negative photographies, digitization provides a more effective way for the public to see and "enjoy " pictures. Similarly, even the oral histories or intangible heritage assets or folkloreik one are much more vulnerable and sensitive as well as more accessible when they are translated into digitized form. For example it would be very interesting and with particular cultural value for young generation to see materialized in the form of photography, through videogram or any form of adaptation, creations of visual art in the field of painting, sculpture and graphics, decorative monumental arts, oral histories in folk regime, which belong to the past historical periods.
Recordings of oral histories are easier to be reproduced and also is easier to utilizate them in digital format. Reproduction of any work in digital format in any form is simple and can be reproduced on them and repeatedly. A different situation is in terms of digitizing the movies due to the practical limitations of the technology. It is impossible in accordance with internationally set standards for archiving film, for example, a film 30 min, for its [3] digital storage. In these terms their restoration ensures the function of their physical security.
Another secondary feature to digitize the collections of cultural heritage institutions is for storage purposes. Important for the protection and promotion of works and archi-
val institutions fund is no doubt initially maintaining their eventual impairment, to resist as much as their lifespan. However, according to specialists engaged with technical expertise of these institutions, the purpose of preservation through digital copy is not always perfect but has its difficulties. This is because of the operating system and requires a technological and considerable costs of logistics to conduct an archival collection or accurate the fund that virtually replaces the values and the importance of original phisical work. The concept of digital materials in way to become inaccessible over time is a concern to experts in copyright field. The European KEEP [4] confirms that "any organization that depends on computer systems for its operation is sensitive to the threat of data loss due to obsolescence or its technical overhaul" [5].
One other function is to digitize collections on management purpose. This includes the register with the data, such as the physical condition of the works of archival fund to accumulate, their location, the status that is granted in cases if the donor has allowed for a volume or another lent to museums or other institutions of cultural heritage, providing information on the respect of copyright, etc.
Another important factor that influences the digitalization projects are works without author, which are works that are protected by copyright, but the owner can not be identified or defined. A substantial majority of the works that are part of the collections of cultural heritage institutions are such works without author. Things thar are noticeable from different treatments seem literal doctrinal or works without an author appear as a matter of legal theory.
Should the cultural heritage institutions to benefit from digital technology projects to provide public access on the rise? On the other hand, should the cultural heritage institutions be affected by the risk of eventual author's aparition and can initiate legal proceedings for infringement of copyrights? [6].
It is difficult to determine whether we have a work online on the Internet that can be on the regime of the work without author, and has passed or not the duration of protection by the law of copyright, or is the author alive and still enjoys it right to copyright.
In fulfillment of the spirit of the law on copyright is important to design a legal document that each user or administrator of collections or of works can agree that has made all efforts to contact and identify the holder of the right and in any case it will be underposed to any legal action that will result as a consequence of use. Currently, our country has not yet become part of the directive on works without an author [7], reasoning that it will be integrated in the new law of copyright, which is expected to be approved soon, one year after its entry into force. This is due to the time it needed to be in way to make them parts and to integrate them in order such that the fulfills the obligations arising from the strategy of intellectual property but also national plan of European integration.
Significant obstacle remains the financing of these projects of digitalization, trained staff that will deal with this work as
costly as the most important and prudent to be implemented as and foremost the cost of maintaining the materials digitized audio-visual. What is required is that the picture, for example, does lose their integrity. So we can maintain multiple copies of archival collections in low resolution, but it does not allow for the researchers of the future to care for their full content in any digital file [8].
Treatment done by cultural heritage institutions to intellectual property issues
We can say that most of the institutions of cultural heritage in many countries do not have a formal policy on the treatment of intellectual property, these issues are fragmented, making the exception that some of them are in the process of developing such a policy. The most important application of the policy remain to purchase or donations or collections of works taking into account copyright and other rights to intellectual property relevant for each respective institution of cultural heritage based on the specifications of the exercise of their activity. The templates used for each collection donated should be formally complete to predict the copyright on those that are not public domain and in the parties agree to use them and report them to the owning other potential these collections.
To realize that there are other forms of conception but at its center to be involved the regulation of these collections in relation to copyright and making digital copies.
Conclusion
Cultural heritage institutions should apply clear legal norms in relation to their funds and use their archive forms part of ndyshme doing here the digital projects. However, this role must also play exemptions use of these archives in accordance with copyright. These provisions should express permission including the digital copies of their purpose, with the exception of those other collections or archival works for which the author has stated in writing not to digitize them. Another part that constitutes the public domain is easier in relation to copyright but made clear the position of the institution in their report for the purpose of reproduction profit. Undoubtedly, part of this relationship is the institution itself carrying these archives if there will be agreement on their commercial use.
On the other side of the cultural heritage of every institution should have the sensitivity to be removed from their website every act of derivative published at the request of the owner or right holder. Thus fulfilled even balance between public cultural interest as well as the rights of their owners. Furthermore to ensure that the objectives and policies of each institution to be in accordance with the legal basis of power for passing the format of archival copies of these institutions, facilitating the persistent problem of obsolescence of computer platforms to software and for ensuring that archives cultural heritage will remain accessible and protected also [9].
The important thing is verifying the status of the author of colections of cultural heritage institutions included in digitiza-
tion projects. In the proceedings of the projects of digitalisa-tion of archives must be considered contractual provisions of agreements between the institution and the agency that makes this process by ensuring that cultural institution is the
holder of the copyright, the creator of these works derived originally from the digitization process. This clause will ensure that in exceptional cases in which these rights can arise is the cultural institution that owns these rights [10].
References:
1. See the Report on the Implementation of Commission Recommendation 2011/711/EU - Progress Report 2011-2013 of September 2014 "Digitisation, online accessibility and digital preservation", available at https://ec. europa. eu/digital -agenda/en/news/european - commissions - report - digitisation - online - accessibility - and - digital - preservation -cultural, at 22.
2. See High Level Expert Group on Digital Libraries Sub-group on Public Private Partnerships, Final Report on Public Private Partnerships for the Digitisation and Online Accessibility of Europe's Cultural Heritage, May 2008.
3. pg 15 - http://ssrn.com/abstract=2040977
4. The KEEP (- Keeping Emulation Environments Portable) Proj ect is co-ordinated by the Bibliothèque Nationale de France and co-funded by the European Union's 7th Framework Programme's ICT-3-4.3 Digital libraries and technology enhanced learning priority.
5. The KEEP (- Keeping Emulation Environments Portable) Project is co-ordinated by the Bibliothèque Nationale de France and co-funded by the European Union's 7th Framework Programme's ICT-3-4.3 Digital libraries and technology enhanced learning priority.
6. Archiving our culture in a digital environment: copyright law and digitisation practices in cultural heritage institutionsSusan Corbett School of Accounting and Commercial Law Victoria University of Wellington - pg 18.
7. The european Directive Nr 2012/28.
8. KEEP (Keeping Emulation Environments Portable) Project - Abstract (September 2009) KEEP Newsletter 1 https://www. keep.project.eu.
9. The need for a format shifting exception to copyright for CHIs in the UK was also mentioned in The Gowers' Review of Intellectual Property (HM Treasury, London, December 2006): see Recommendation10b.
10. The digitization of cultural heritage: originality, derivative works and (non) original photographs Thomas Margoni - pg 54.
Dzhansarayeva Rima Yerenatovna, al-Farabi Kazakh National University, Head, Chair of Criminal Law, Criminal Process and Criminalistics, Doctor of Law, Professor
E-mail: [email protected] Malikova Sholpan Baltabekovna, al-Farabi Kazakh National University, associate professor Chair of Criminal Law, Criminal Process and Criminalistics, candidate of jurisprudence
About the classification of migration
Abstract: The article provides an overview of theoretical approaches to the classification of migration. United universally accepted classification of migration does not exist. Spatial movements are diverse in nature and depending on the target symptoms are classified into different types. Classification of migration is necessary for understanding this phenomenon.
Keywords: international migration, internal migration, seasonal migration, commuting, labor migration, illegal migration.
For understanding of the migration's essence it is neces- Thus, having been the basis for classification of migra-
sary to classify the types of migration that will allow to trace its tion forms the purposes of departure, A. U. Homra high-direction. Despite the attention of scientists from many coun- lights the industrial migration (related to work in various tries to this phenomenon, a single universally accepted clas- sectors of industry, agriculture) and non-productive (related sification of migration does not exist. Spatial movements are to the service, consumption, and leisure). Depending on the diverse in nature and depending on the applied target attri- category of migrants crossed the administrative-territorial butes can be classified into different types. boundaries he allocates intra village council, interdistrict and
