Towards Digitization of Cultural Practices and Contents: Issues, Limits and Legal Tools

It is often claimed that developing a digital strategy to improve access to and participation in culture and cultural heritage increases democratization and citizens’ sense of collective belonging. As a result, and particularly in the COVID-19 context, many cultural institutions, both public and private, have accelerated the development of tools for accessing and digitally disseminating their cultural content: online access to collections, visits to museums or 3D virtual sites, visits to entirely online exhibitions, online access to cultural and musical performances, reading of tales via video... Furthermore, participatory digital cultural practices have also increased exponentially to integrate users in the creation, use and transmission of culture and cultural heritage (methods of crowd sourcing, storytelling, citizen science...), notably through digital tools linked to artificial intelligence and virtual reality. However, this digital craze, already underway before the pandemic, is not without legal difficulties, particularly in the field of intellectual property and data protection, and also raises ethical questions. With the dematerialization of cultural practices and content some legal principles can constitute obstacles, while others can facilitate digitization and access to such content and practices. Both mechanisms in public law – legislation and case law ensuring a balance between rights and interests, such as those of the author, the owner, the user, the personal data subject or controller; participatory governance measures; development of direct and indirect cultural policies… – , as well as tools in private law – licence contracts; property rights; control and access mechanisms such as Digital Rights Management (DRM); legal governance models and structures, etc. – must be examined for an inclusive access to dematerialized cultural practices and content. Nevertheless, the notion of access itself should be examined, including from an ethical point of view: the desire to grant universal access to certain dematerialized cultural content may come up against certain rights and interests, particularly those of the communities of origin, a fortiori when it comes to digitizing sacred objects. Following a decolonial approach to the concepts of access and dematerialization, thought should be given to the inclusion of these communities in the digitization process as well as in the access policies of these digital contents. The aim of this Special Issue is therefore to question the dematerialization movement from a legal point of view, by asking within what limits, under what conditions and with what legal tools cultural practices and contents can develop in the context of digitization of cultural practices and contents. Three axes are to be explored in this Special Issue, in which more concrete thematic ideas are listed, while being open to other aspects within these three axes: 1. Digitization and intellectual property What are the issues, limits and tools in intellectual property law in the face of digitized cultural practices and content? - The evolving enforcement of intellectual property rights with the expansion of digitized cultural practices and content; - The impact of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC on intellectual property regimes, in particular with regard to the reproduction right of works of visual art, as well as with regard to other exceptions to the rights of reproduction or communication to the public; - New licensing practices for the use of new digital tools (co-created digital files, 3D scanning, virtual reality games...); - The scope of the exceptions to copyright and related rights for user-generated content with cultural creations (quotation, parody, etc.) and the adequacy of remuneration rights - The issue of restitution of cultural goods and their digitization: the intellectual (and material) rights on these goods. 2. Digitization, cultural platforms and data protection What are the issues, limits and tools in platform law and data protection law in the face of digitized cultural practices and content? - The role of cultural platforms in guaranteeing access while respecting the principle of cultural diversity (regulation of private cultural platforms, development and accessibility of cultural platforms managed directly by the public authorities, particularly for education and research, etc.); - The role of new intermediaries in cultural mediation (for ex. risks of new gatekeepers such as streaming platforms for accessing cultural content); - Data protection of digital cultural content, especially in the case of user-generated content. 3. Digitization, participatory governance and virtual communities What are the issues, limits and tools of participatory governance in the face of digitized cultural practices and content? - The right(s), interest(s) and/or responsibility(s) for users of these cultural practices; - Virtual communities vs. communities of origin; - The principles of participatory governance for these dematerialized cultural practices and contents; - The challenge of the (digital) commons (need for new open licenses, etc.); - The role of public authorities in ensuring active participation in culture