Anne Frank and the Term of Copyright Protection: Why it’s Time to Move from Harmonisation to Unification

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#readannediary
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The text was written by Katarzyna Strycharz. 

Since the beginning of the year there’s been a lot of discussion (and confusion too) about whether the Diary of Anne Frank is now in public domain. Under the normal rules regarding the duration of copyright protection, the work should have entered into the public domain on 1 January 2016. However, there were several unusual circumstances that brought this into question. First, the Anne Frank Foundation announced their plans to list Otto (Anne Frank’s father) as a co-author, which would extend the protection period of the published diary until 2050. Next, due to a transitional rule in Dutch law it became clear that Anne Frank’s original writings would not enter the public domain in 2016 in the Netherlands (and many other EU countries with similar rules). Finally, in early February the Wikimedia Foundation (the organization that hosts Wikipedia and related projects) decided to remove the Dutch-language text of the diary from Wikisource.

On Tuesday 26 April, World Intellectual Property Day, the original, Dutch-language version of ‘The Diary of Anne Frank” will be published online at annefrank.centrumcyfrowe.pl. With this publication of the original version of the diary we seek to highlight the absurdly long duration of copyright in the EU, as well as the fact that, contrary to general assumptions, the duration of copyright is still not unified across the EU and the troubling fact of geo-blocking which creates boundaries online.

On the Anne Frank Foundation website we can read that “Anne Frank’s original writings, as well as the original in-print versions will remain protected for many decades”. So, when does the copyright of the diary expire? It seems that the answer varies from country to country, and we’ll try to investigate whether there is somewhere in the EU where the writings of Anne Frank are now in the public domain.

Transitional provisions in the Dutch law

To fully understand the issue at hand, we observe that there are actually three versions of Anne Frank’s diary writings. Two versions of her manuscripts (version A and B) were combined into the book (version C). This book is commonly known as the the Diary of Anne Frank, and was published in 1947.

As we have previously discussed, version C was compiled by Otto Frank and thus is still protected by copyright 70 years from the time of his death in 1980. But in the case of manuscripts (version A and B) there is no doubt that Anne Frank was the sole author. As we can read  in the statement of the Anne Frank Stichting (who runs the Achterhuis in Amsterdam)“Otto Frank is not the co-author of the original diary writings of Anne Frank”. The same is confirmed by the Anne Frank Foundation (who own the copyrights in Anne’s work), which claims that “copyrights to Anne Frank’s original texts originally belonged to the author, Anne Frank herself”.

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Page from ‘De Dagboeken van Anne Frank”, published by the Dutch Institute for War, Holocaust and Genocide Studies (2001 edition), showing the three versions (from top to bottom A, B and C) of the 9 november 1942 entry in Anne Frank’s diary.

In the Netherlands copyright lasts for 70 years after the death of the author. And even though Anne Frank was killed in 1945, this doesn’t mean that the A and B versions of her diary are in the public domain under Dutch law. This is because the full manuscripts were first published in 1986, and the rule at that time said that works which were first published posthumously are protected for 50 years after the initial publication.

The 2013 Dutch copyright act implementing the 1991 term directive contained transitional provisions stipulating that rights which existed under the previous law continue to exist. This means that versions A and B of the Frank diary will remain under copyright in the Netherlands until 1 January 2037 (50 years after the 1986 publication).

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COMMUNIA response to IPRED consultation

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enforcement of copyright must not curb creativity
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Last week COMMUNIA submitted its response to the European Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights (IPR).

We believe that the existing Directive fails to adequately address the varying types (and by extension, impact) of activities that would technically constitute copyright infringement. This is particularly worrying in the case of online infringement, where many violations occur due to unconscious actions by internet users who are not familiar with complex copyright rules. To be justly enforced, the rules should take into account the fact that there are many forms of incidental or relatively harmless forms of infringements today. The law should weigh the seriousness and impact of these minor infringements when deciding on enforcement measures and damages.

Excessive enforcement of copyright against everyday activities must not curb creativity, freedom of expression, and innovation.

From the perspective of internet users, there is no need to revise the Directive in order to strengthen its enforcement provisions. If anything is to be changed, it should be those provisions that support a better balance between the interests of consumers and the protection of the rights of content creators. The following changes should be considered:

 

  1. Ending both civil and criminal prosecutions of citizens for non-commercial file sharing, and withdrawing from prosecuting the creators of derivative works who produce non-commercial remixes. In addition, criminal penalties for violations of intellectual property rights by individuals should be minimized.
  2. Introducing mechanisms for safeguarding fair use and the public domain, including a ban on direct contractual restrictions on access and use of these materials, or of using digital rights management or other technical mechanisms to prevent citizens from exercising their rights under the law.
  3. Avoiding the situation where ISPs or hosting services are forced to filter content based on the orders imposed by civil courts attempting to enforce intellectual property rights, contrary to the provisions of Directive EC / 21/2000 (“the E-Commerce Directive”). There should not be any involvement of intermediaries other than the notice and takedown rules already in place under the E-Commerce Directive. As highlighted in our answers above, these rules already negatively impact internet users because they do not adequately provide users the ability to file counter notices. The ability of users to oppose and counter unjustified takedowns needs to be strengthened, and rights holders need to be required to take into account exceptions and limitations to copyright before filing notice and takedown requests.

We will continue to monitor the outcomes of this consultation. We’re curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu.

Contrary to what publishers think, Libraries serve the Public

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Have the publishers lost it?
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It is relatively well documented that neither the French nor publishers are big fans of copyright reform. Given this, the comments from the CEO of the French publisher Hachette Livre on at last week’s London Book Fair are not entirely surprising.  

Less than three weeks after the European Commission launched a consultation that appears to be designed to create additional copyrights for publishers, Hachette CEO Arnoud Nourry warned his international publishing colleagues that Google is a bigger threat to publishers than Amazon and greatly benefit from what he called “the European Commission’s senseless attack on copyright”. According to a summary of his talk provided by the Bookseller, he then went on to declare that:

… vast exceptions to copyright law for libraries, for education, for fair use” could provide an opening for Google to rebrand itself as a library, opening up its repositories of scanned content for free and profiting from advertising income [and] questioned why the EC was targeting publishers: “It is as if the Commission had made it a priority to weaken the only European cultural industry that has achieved worldwide leadership. Need I remind you that nine of the 12 largest publishing companies in the world are European?”’

To anyone following the relatively tame course the Commission has charted out for reviewing the EU copyright rules, this looks like a relatively ill-informed overreaction by a publisher who seems to be offended that European legislators dare to even think about modernizing EU copyright without asking the publishing industry for permission first. The obsessive focus on Google as an evil outsider intent to destroy culture-as-we-know-it highlights the unease the traditional publishing sector still feels when it comes to all things digital.Continue reading

Creators sharing in the public domain

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The Public Domain strengthens Europe
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Last January, COMMUNIA invited creators to share thoughts about their relationship with the public domain. They spoke at the Public Domain Day 2016 event we organised in the European Parliament, hosted by MEP Julia Reda. We learned from their experiences that copyright can be perceived as a hurdle for creators, that sharing your work into the public domain can make businesses grow, and that the reuse  of materials of which the copyrights have expired can lead to beautiful new things happening.

Sebastiaan ter Burg made a great video about this  event. Watch and learn how a stronger public domain can foster culture and innovation in Europe:

2016 promises to be a crucial year with regard to the future of the public domain. Later this year the European Commission will—for the first time in over 15 years—propose changes to the EU copyright rules. This provides the opportunity to adopt policies that will strengthen the public domain. You can read more here on how COMMUNIA thinks that can be done.

Open letter to the Commission: Focus on reforming copyright instead of curtailing internet freedoms

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Reform copyright, don't break the internet!
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In the ongoing reform of copyright, the European Commission has presented a conservative approach . There are some alarming ideas being raised, such as ancillary copyright and broadening the scope of internet intermediaries’ liability. If these concepts are translated into policy, it would make copyright even more complicated to understand and the internet a less free place. The reform discussions so far look neither progressive nor adjusted to users’ needs. This worries Communia and other organisations that serve the public interest.

COMMUNIA is one of the signatories of an open letter on copyright reform sent today to the European Commision. Various civil society organizations and representatives of consumers, businesses, creators, distributors, broadcasters, and public institutions voice their support for a more ambitious reform that is fit for the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication, and access to knowledge.

The letter underlines the notion that online platforms such as search engines and aggregators should not be required to monitor content submitted to their platforms. Even more importantly, they should not be held responsible for blocking links to websites that are accused of hosting illegal content or providing access to content made available illegally. From the letter:

We ask you now to deliver an ambitious reform that is fit for purpose in the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication and access to knowledge.

What does “ambitious copyright reform” mean to COMMUNIA? We advocate for policies that strengthen and expand the public domain and increase access to and re-use of culture and knowledge. We advocate for using Creative Commons licences, enhancing and harmonizing copyright legislation, securing users’ rights in education and culture, and introducing new exceptions to copyright, such as for text and data mining. The Commission needs to hear the voices of organisations and individuals supporting the public interest. The Commission should give copyright the modernisation it deserves by enabling innovation and the sharing of culture—not by adding new layers of protection and complexity to already complex system.

#Stopgeoblocking: Make the internet less broken

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Geoblocking breaks the Digital Single Market
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BEUC, the European Consumers Association, has just launched a campaign against geo blocking. COMMUNIA has been using this term mainly in order to refer to the practice of limiting access to copyright protected content – such as films or music – to specific national markets. This prevents internet users from outside of that market to access the content in question which, in our opinion, is not coherent with the expectations of internet users and the idea of a EU Digital Single Market. However, the problem is not limited to access to works protected by copyright. As illustrated by the campaign video released by BEUC the idea of providing different services to people based on their nationality is fairly ridiculous:

You can find out more about the practice of geo-blocking and why it needs to end as soon as possible in this factsheet (pdf) and in BEUC’s factsheet on the issue. Needless to say we wholeheartedly agree with the analysis provided by BEUC. From the perspective of European internet users, ending these unfair business practices will be one of the key outcomes that the European legislator needs to achieve in order to deliver on the promise of a Digital Single Market.

More ancillary copyright madness: French proposal to tax websites for using image thumbnails to illustrate search results

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Open letter against ancillary copyright
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We spend a lot of effort pointing out that additional copyright, like rights for specific groups of rights holders, are a problematic concept that has potential to cause a lot of damage to the Public Domain. Most of our coverage has focused on efforts to establish an ancillary copyright for press publishers. We have seen the introduction of such rights first in Germany and then in Spain in recent years, and in both cases the legislators have failed to reach their objective. Especially in In Spain the newly introduced rights have caused so much collateral damage that the news publishers themselves (who were supposed to be the beneficiary) have come out against the concept of an ancillary copyright.

Part of the argumentation why ancillary copyrights are a bad idea has been the fact that they have the potential to limit the access to information, and thus damage the Public Domain. Trying to boost specific business models by adding more types of rights to an already overly complex copyright system is the wrong answer to the challenges posed by the rise of the internet. New rights do not only affect the rights holders they are intended to help, but have a much wider impact on how we access information and culture.

This point is once more illustrated by a recent attempt in France to establish a new right that would require search engines and indexing services to pay royalties for the use of thumbnail images of copyright protected works. According to French proposal, which has been approved by the French Senate, this new right would be managed by one or more collecting societies, regardless of the intention of the rightholders whether to be financially compensated for the use of their works by search engines.

As with the Spanish ancillary copyright for press publishers, the compulsory collective management of this right means that it would also apply to works that have been made available by their creators under Creative Commons licenses, severely limiting the ability of creators to contribute to the Public Domain. The French proposal would also be very likely to affect online resources such as Wikimedia Commons or Europeana, even though these platforms are based on voluntary sharing of images.

This is why we joined forces with 14 other organisations and expressed concerns in open letters to the French Minister of Culture (en/fr) and the rapporteur of the Assmblée Nationale (en/fr )for the ‘Liberté de la création, de l’architecture et du patrimoine‘ law which contains the proposal. The letters warn that:

The current proposal […] will impact many online services and mobile apps, from search engines to creative commons models and Europeana. Money would be collected arbitrarily and without any realistic way of redistributing it accurately. Basically, every day activities of online users, such as posting, linking, embedding photos online, would be subject to a cloud of legal uncertainty.

It would isolate France in the European Union, at a time when courts across Europe have made clear these were lawful activities under national, European and international laws. It would isolate France globally, as a country where using images online would be subject to restrictive and unworkable practice.

We hope that the French legislator will have the wisdom not to introduce this new right. This would send a strong signal that introducing new exclusive rights in an already too complex European copyright framework is not a suitable instrument to support specific business models in sectors negatively affected by the internet. We are convinced that the answer to the challenges posed by digitisation in certain sectors does not lie in the creation of new rights, but rather in a re-balancing of the existing copyright rules.

The EU wants your perspective on “intellectual Property enforcement”

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Make your voice count
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The European Commission is currently holding a consultation on the 2004 directive on the enforcement of intellectual property rights in the online environment (the so called IPRED directive). As the name suggests, this directive deals with the enforcement of copyright – including issues such as injunctions against internet service providers, internet blocking, and warning letters to individuals accused of unauthorised peer-to-peer filesharing. These issues have been hugely controversial in the past and there is considerable pressure from rights-holders to further expand the way they can enforce rights.

This is of course only one side of the story, as we have seen over and over again how enforcement actions are abused, chill speech, and limit access to information. The consultation is of great importance not only to those interested in copyright, but to anyone using the internet. The consultation covers how private companies should (or not) be involved in law enforcement online – for example by removing content uploaded by a user that includes any copyrighted material.

It also covers the range of internet intermediaries that could or should be subject to legal obligations to undertake law enforcement activities. Imposing extra requirements on internet intermediaries limits them in the types of services that they can offer to users, and can make it more difficult for non-professional creators to find an audience for their creations and/or opinions.

It is important that the Commission hears from as many internet users and creators as possible. The consultation consists of 5 different lists of questions for different types of respondents. Our friends at EDRi have built an online tool for answering the Commission’s questions. EDRi also provides guidance and advice for potential responses from particular audiences, including citizens, consumers, and civil society organisations.

If you regularly create content that you share online (such as photos, videos, and writing) you can also consider answering the question aimed at rightsholders: it’s crucial to show the Commission that copyright (enforcement) rules cannot be based solely on the entrenched “needs” of large commercial rights holders. Instead, the rules must reflect the reality where countless numbers of internet users create (and wish to share) copyright-protected works on a regular basis.

You have until the 7th of April to submit your responses via the EDRi answering tool.

Fair use and the importance of flexible copyright exceptions

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A universe of limitations to copyright
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It’s Fair Use Week, and organizations and individuals are publishing blog posts, hosting workshops, and sharing educational media about the implementation and importance of this essential limitation to the rights endowed by copyright. Fair use is a flexible legal tool that permits some uses of copyrighted material without permission from the original rightsholder, such as for use in news reporting, criticism, teaching, and other reasons. A fair use is not an infringement of copyright.

The doctrine of fair use sits under the larger umbrella of limitations and exceptions to copyright. These limitations are a necessary check on the exclusive rights granted to copyright holders. Even though fair use has only been adopted by a small number of countries, in Europe there are several exceptions that are central to supporting permission-free uses of copyrighted content for various public interest goals. Both fair use and flexible copyright exceptions serve the same basic purpose, but under different legal landscapes.

We’ve highlighted several commonsense limitations to copyright that should be adopted and standardised throughout the EU. These include exceptions for educational use, for cultural heritage institutions to be able to share out-of-commerce works online, for freedom of panorama, and for audiovisual quotation. It’s important that these exceptions are made mandatory and are fully harmonised across all EU member states.

We’re especially interested in how limitations and exceptions to copyright can support modern education practices. Last month we published a policy paper outlining the requirements for a progressive EU-wide exception to copyright for educational purposes. This exception should 1) address local and cross-border education needs; 2) be mandatory; 3) be neutral with regard to media type, format, and technology; 4) be flexible; and 5) cover all necessary uses provided they are in accordance with fair practice.

As we observe Fair Use Week 2016, we’re happy to see that users around the world are taking advantage of limitations and exceptions—an important safety valve to the rules of default copyright. We’re hopeful that in the coming months the Commission will support the creation of exceptions that balance the interests of rightsholders with the needs of the public who wish to use copyrighted works in creative and educational ways.

 

Research: Orphan Works Directive does not work for mass digitisation

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Orphan Works directive: as useless as expected
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In 2012 the European Parliament adopted the Directive on ‘certain permitted uses of orphan works by cultural heritage institutions’. The directive intends to fill the gap between the mission of cultural heritage institutions to share cultural works to citizens, and the complex, costly, and sometimes impossible task of locating rightsholders to get permission for online publication of these orphaned yet still-in-copyright works.

COMMUNIA’s 2012 analysis of the directive showed that it was bound to be a train wreck. A preliminary comparative study of the situation in the UK, the Netherlands, and Italy undertaken by the EnDOW project reveals that the national implementations of the directive across Europe do not provide the much needed solution for the problem of orphan works.

Under the directive, cultural heritage institutions are allowed to publish works online for viewing (not re-use) after a ‘due diligence search’ has been performed, recorded, and submitted to the orphan works database at OHIM. Works that have been registered in this database can then be digitized and made available online under an exception to copyright. So far the project only published its initial results, but we can already see that this piece of legislation will most likely not contribute to large-scale use of orphan works by Europe’s Libraries, Museums & Archives.

The main reason for this is that the diligent search requirements established by the directive have been implemented by member states in such a way that the cost of undertaking a diligent search is prohibitive. The study collected over 210 sources, databases, and registers that need be checked in diligent searches in the UK alone. Researchers from Italy found 357 possible databases and registers. Of the 87 identified sources in the Netherlands, 40 were not freely accessible, and 36 of these required personal contact or a physical visit to an institute. Since the legislation requires cultural heritage institutions to be diligent, they need to check each and every source to be covered by the limited exception provided by the directive.

These results illustrate that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix. This is further shown in the actual number of orphan works available through the OHIM Orphan Works Database, which currently only shows 1,435 registered works. More than half of them are in the collection of the Dutch EYE Film Institute (which has worked on rights clearance for these works since at least 2008).

The preliminary results of EnDOW provide evidence that the European Union has failed in this attempt to provide much needed digital access to Europe’s cultural heritage. Given that the Orphan Works Directive does not help with mass digitisation projects, this means that there is a continued need to provide legal mechanisms that allow cultural heritage institutions to make works in their collection available online.

Note: This contribution has been written by Maarten Zeinstra. Maarten is technical advisor to EnDOW. The ideas expressed in this post should not be attributed to EnDOW.