Representing the Public Domain at the EU Observatory on Infringements of IPR

Last week Communia joined the “European Observatory on Infringements of IPR” which is hosted by the European Union’s Office of Harmonization in the Internal Market (OHIM). The Observatory’s task is to provide the EU Commission with insights on every aspect of IPR infringement. It does so primarily by conducting surveys and studies on how, where and why IP rights are violated by whom and to what extent. In addition is helps coordinate across borders the efforts of various institutions involved in law enforcement. It also runs general as well as focussed awareness campaigns in the field of IP. This is done in conjunction with a permanent stakeholder dialogue, which is organized in working groups and a yearly plenary.

The EU observatory on infringments of IPR
The European Observatory on Infringments of IPR is a unit of the EU’s Office of Harmonization in the Internal Market (OHIM), which is located on top of a cliff overlooking the Mediterranean sea in Alicante, Spain

As part of this year’s plenary, held last week in Alicante, Spain, Communia joined the observatory as only the seventh civil society group. By far the largest stakeholder group are 58 industry representatives, followed by 28 public sector institutions and 10 representatives with an observer status, which include international orgnizations such as OECD but also US interest groups. This heavy industry bias of the observatory members has to do with the Observatory’s origin being an initiative from the world of industrial property (such as trademarks, registered designs) and insititutions fighting product counterfeits entering the EU internal market.

The decision to join the observatory was prompted by the fact that the Observatory increasingly moves its focus also to the field of copyright and related rights. A major part of its agenda for 2015 deals with finding out about what children and young adults know and think about counterfeit goods and copyright violation, and with running campaigns to raise the yonger generation’s awareness of the damage done by rights violations.

The observatory is also working on a “Study on Open Licensing and the Public Domain”, both of which are core fields of expertise of COMMUNIA Association as a network and of its members. We can draw on this knowledge and also on the material produced by the Communia Project between 2007 and 2011 to support the Observatory with such studies. This offer was met with great interest by the research staff involved.

Over and above support for the study, Communia will strive to make a case for the Public Domain as a concept and as a pool of re-usable cultural heritage whenever that seems appropriate in the work of the Observatory, especially in the relevant working groups. The necessity to do this is obvious, as the Public Domain does not have too many other supporters and its value for society is often overlooked.

Europe’s cultural heritage institutions deserve better

For those of us looking forward to copyright rules that enable European cultural heritage institutions to provide online access to their collections, two important things happened last week: on Wednesday 29th October, the Orphan Works directive (OW directive) came into force and on Saturday 1st November, the new European Commission headed by Jean-Claude Juncker assumed office.

The first event marks the failure of the existing system, while the second one is reason to give us hope for a more meaningful modernisation of the European copyright system.

The fact that the current system does not take into account the needs of cultural heritage institutions is painfully illustrated by the Orphan Works directive. After years of legislative wrangling, Europe came up with a ‘solution’ for the problem of orphan works that requires cultural heritage institutions wanting to make orphan works available to undertake complicated searches for rights holders, before they are allowed to publish them. In most cases, the resources required for such searches are completely out of balance with the cultural and economic value of the work. This means that the Orphan Works directive may be a useful tool for making small numbers of high profile works available, but not as an enabler of mass digitisation projects.

The fact that the OW directive ended up as a crippled tool that fails to address the problem it was designed to answer (enabling mass digitisation of collections), is the result of a number factors: strong pressure from rights holders and their representatives to preserve the underlying principles of copyright even in a situation where they do more good than harm; the lack of coordinated advocacy efforts from cultural heritage institutions at the European Level; and a weak European Commission that was split on copyright.

With regards to the last point there is reason to hope that the situation is changing. The Juncker Commission that came into office on the first of November has made the modernisation of copyright one of its top priorities. In his mission letters to the Commissioners in charge of a connected Digital Single Market, Juncker made it clear that he expects his team to come up with ‘ambitious legislative steps’ towards ‘modernising copyright rules in the light of the ongoing digital revolution’ within the next six months.

In other words, the time to start fighting for copyright rules that enable cultural heritage institutions to properly function online is now! Continue reading

New policy paper on the re-use of public sector information in cultural heritage institutions

In 2013 the European Union enacted Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (PSI). The 2013 directive is an important pillar of the European Union’s open data strategy. It establishes the general principle that public sector bodies’ available information shall be reusable in accordance with a number of conditions, such as open formats, terms and conditions. Member States are asked to transpose the new rules into domestic law by 18 July 2015, i.e. about nine months from now. One of the major new features of the PSI directive is the inclusion in its scope of libraries (including university libraries), museums and archives. However, if Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions.

The directive attempts for the first time to define a general framework for sharing cultural heritage information all around Europe. Under the amended directive, libraries, museums and archives are now asked to make parts of their collections available for reuse. In particular, documents in the Public Domain (either because never protected or because the protection expired) are under the general re-use rule of Art. 3(1), while documents in which libraries, museums and archives hold intellectual property rights are under the derogatory rule of Art. 3(2): only when institutions allow re-use are they under the obligation to ensure that the general re-use conditions are respected. Accordingly, the re-use requirements of the directive only apply to works that are not covered by third-party intellectual property rights.

While laudable in principle, the inclusion of cultural heritage institutions in the scope of the directive raises a number of questions related to how Member States should implement the new PSI directive. If Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions. In order for the directive to meet its overall objective, i.e. to contribute to opening up the resources held by Europe’s cultural heritage institutions, three main recommendations for member states can be formulated:

  1. Member States should implement the Directive in line with the principles established by Article 3 and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive.
  2. Member States must not implement the Directive in such a way that encourages or requires institutions to charge for the reuse of works that they make available for reuse. The decision to charge for reuse must be up to the individual institutions. If this is not the case the Directive will limit access and reuse of the public domain.
  3. For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions, Member States should encourage the use of Open Definition-compliant licenses, such as the Creative Commons licenses or the Creative Commons Zero mechanism. This applies in particular to metadata produced by cultural heritage institutions, in the limited cases where these metadata can attract copyright (such as long form descriptions of cultural heritage objects).

For a deeper analysis of these issues see the full policy paper on the re-use of public sector information in cultural heritage institutions.

Open Definition 2.0 released

This post initially appeared on the Creative Commons blog, republished here under CC BY 4.0

Today Open Knowledge and the Open Definition Advisory Council announced the release of version 2.0 of the Open Definition. The Definition “sets out principles that define openness in relation to data and content,” and is the baseline from which various public licenses are measured. Any content released under an Open Definition-conformant license means that anyone can “freely access, use, modify, and share that content, for any purpose, subject, at most, to requirements that preserve provenance and openness.” The CC BY and CC BY-SA 4.0 licenses are conformant with the Open Definition, as are all previous versions of these licenses (1.0 – 3.0, including jurisdiction ports). The CC0 Public Domain Dedication is also aligned with the Open Definition.

The Open Definition is an important standard that communicates the fundamental legal conditions that make content and data open. One of the most notable updates to version 2.0 is that it separates and clarifies the requirements under which an individual work will be considered open from the conditions under which a license will be considered conformant with the Definition.

Public sector bodies, GLAM institutions, and open data initiatives around the world are looking for recommendation and advice on the best licenses for their policies and projects. It’s helpful to be able to point policymakers and data publishers to a neutral, community-supported definition with a list of approved licenses for sharing content and data (and of course, we think that CC BY, CC BY-SA, and CC0 are some of the best, especially for publicly funded materials). And while we still see that some governments and other institutions are attempting to create their own custom licenses, hopefully the Open Definition 2.0 will help guide these groups into understanding of the benefits to using an existing OD-compliant license. The more that content and data providers use one of these licenses, the more they’ll add to a huge pool of legally reusable and interoperable content for anyone to use and repurpose.

To the extent that new licenses continue to be developed, the Open Definition Advisory Council has been honing a process to assist in evaluating whether licenses meet the Open Definition. Version 2.0 continues to urge potential license stewards to think carefully before attempting to develop their own license, and requires that they understand the common conditions and restrictions that should (or should not) be contained in a new license in order to promote interoperability with existing licenses.

Open Definition version 2.0 was collaboratively and transparently developed with input from experts involved in open access, open culture, open data, open education, open government, open source and wiki communities. Congratulations to Open Knowledge and the Open Definition Advisory Council on this important improvement.

Communia response to Science 2.0 consultation

Today the European Commission concluded a consultation on ‘Science 2.0’: Science in Transition. The objective of the consultation is “to better understand the full societal potential of ‘Science 2.0′ as well as the desirability of any possible policy action.” Science 2.0 is defined as the “on-going evolution in the modus operandi of doing research and organising science.” COMMUNIA responded to the questionnaire because there were issues relevant to how scientific research and data could be made available under open licenses or as a part of the public domain. One question asks respondents to rank the specific areas in which they feel a need for policy intervention. We noted that a few opportunities for policy development are open access to publications and research data, and increased attention to policies that support text and data mining. From our submission:

Open access to publication and research data as either in the public domain or under an open license aligned with the Open Definition would help work towards the goals of Science 2.0. Such a policy would be especially important when public funds are expended for scientific research and publications. COMMUNIA policy recommendation #12 states, “all publicly funded research output and educational resources must be made available as open access materials.” Interest in text and data mining is increasing, and traditional gatekeepers of science scholarship (namely commercial publishers) are attempting to restrict this activity through the adoption of custom licenses and/or contractual terms. We think that text and data mining should be considered as outside of the scope of copyright protection, and instead should be considered as an extension of the right to read (see “Right to Read is the Right to Mine”). Text and data mining should not be treated with a contractual approach which would try to license for a fee this usage in addition to the right of access. Terms of use prohibiting the lawful right to perform data mining on a content accessed legitimately should be considered an abuse of exclusive rights.

Here’s our responses to the questionnaire. The Commission’s background paper on the Science 2.0 consultation is here.

Dozens of organizations tell STM publishers: No new licenses

The keys to an elegant set of open licenses are simplicity and interoperability. CC licenses are widely recognized as the standard in the open access publishing community, but a major trade association recently published a new set of licenses and is urging its members to adopt it. We believe that the new licenses could introduce unnecessary complexity and friction, ultimately hurting the open access community far more than they’d help.

Today, COMMUNIA and 57 organizations from around the world released a joint letter asking the International Association of Scientific, Technical & Medical Publishers to withdraw its model “open access” licenses. The association ostensibly created the licenses to promote the sharing of research in the scientific, technical, and medical communities. But these licenses are confusing, redundant, and incompatible with open access content published under other public licenses. Instead of developing another set of licenses, the signatories urge the STM Association to recommend to its authors existing solutions that will truly promote STM’s stated mission to “ensure that the benefits of scholarly research are reliably and broadly available.” From the letter:

We share a positive vision of enabling the flow of knowledge for the good of all. A vision that encompasses a world in which downstream communicators and curators can use research content in new ways, including creating translations, visualizations, and adaptations for diverse audiences. There is much work to do but the Creative Commons licenses already provide legal tools that are easy to understand, fit for the digital age, machine readable and consistently applied across content platforms.

So, what’s really wrong with the STM licenses? First, and most fundamentally, it is difficult to determine what each license and supplementary license is intended to do and how STM expects them each to be used. The Twelve Points to Make Open Access Licensing Work document attempts to explain its goals, but it is not at all clear how the various legal tools work to meet those objectives.

Second, none of the STM licenses comply with the Open Definition, as they all restrict commercial uses and derivatives to a significant extent. And they ignore the long-running benchmark for Open Access publishing: CC BY. CC BY is used by a majority of Open Access publishers, and is recommended as the optimal license for the publication, distribution, and reuse of scholarly work by the Budapest Open Access Initiative.

Third, the license terms and conditions introduce confusion and uncertainty into the world of open access publishing, a community in which the terminology and concepts utilized in CC’s standardized licenses are fairly well accepted and understood.

Fourth, the STM licenses claim to grant permission to do many things that re-users do not need permission to do, such as describing or linking to the licensed work. In addition, it’s questionable for STM to assume that text and data mining can be regulated by their licenses. Under the Creative Commons 4.0 licenses, a licensor grants the public permission to exercise rights under copyright, neighboring rights, and similar rights closely related to copyright (such as sui generis database rights). And the CC license only applies when at least one of these rights held by the licensor applies to the use made by the licensee. This is important because in some countries, text and data mining are activities covered by an exception or limitation to copyright (such as fair use in the United States), so no permission is needed. Most recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from the reach of copyright.

Finally, STM’s “supplementary” licenses, which are intended for use with existing licenses, would only work with CC’s most restrictive license, Attribution-NonCommercial-NoDerivatives (BY-NC-ND). Even then they would have very limited legal effect, since much of what they claim to cover is already permitted by all CC licenses. As a practical matter, these license terms are likely to be very confusing to re-users when used in conjunction with a CC license.

The Creative Commons licenses are the demonstrated global standard for open access publishing. They’re used reliably by open access publishers around the world for sharing hundreds of thousands of research articles. Scholarly publishing presents a massive potential to increase our understanding of science. And creativity always builds on the past, whether it be a musician incorporating samples into a new composition or a cancer researcher re-using data from past experiments in their current work.

But to fully realize innovations in science, technology, and medicine, we need clear, universal legal terms so that a researcher can incorporate information from a variety of sources easily and effectively. The research community can enable these flows of information and promote discoveries by sharing writings, data, and analyses in the public commons. We’ve already built the legal tools to support content sharing. Let’s use them and not reinvent the wheel.

Did Spain just declare war on the commons?

Two weeks ago the lower chamber of the Spanish parliament approved a number of changes to Spain’s Intellectual Property Law that directly threaten the ability of Spanish internet users to contribute to the commons. The law introduces a number of modifications to copyright law that expand the scope of exclusive rights over areas that were previously outside of the exclusive rights of copyright holders at the expense of users rights and the public domain.

The main reason for this law seems to be the desire of Spanish newspaper publishers to get a legally guaranteed income stream from news aggregation sites. What is happening in Spain is a modification of the (largely failed) attempt by German news publishers to make news aggregators (such as Google News) pay for using small parts of news articles that they link to.

Compared to the German attempt, the Spanish approach is more elaborate, and more dangerous. While the German legislators simply created an ancillary right for press publishers and left it up to the publishers whether and how to enforce, waive or license the right, the Spanish law (English translation of the relevant bits here) approaches it from the user side of the equation:

Here, the law creates a right for ‘electronic content aggregation providers’ to use ‘non-significant fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly updated’ without the permission of the rights holder. However such uses require payment of a ‘fair remuneration’ to the rights holder (via a collecting society). This is a right that content providers already have and can choose to license or waive assuming the non-significant fragments are copyrightable and absent an applicable exception or limitation.  What this new legislation does is eliminate the ability of providers to choose how to exercise this right, and impose a mandatory royalty on reusers even for content that has been made available under a public license such as Creative Commons or that is otherwise available under an exception to copyright or in the public domain. Continue reading

EU copyright consultation: Rights Holders are from Mars, Users are from Venus

Last week the European Commission published its ‘Report on the responses to the Public Consultation on the Review of the EU Copyright Rules‘. This report summarizes the more than 11.000 responses that the Commission had received in reaction to the copyright consultation held between December 2013 and March of this year. While it is clear that a 100-page document cannot do justice to all of the responses (our own response measured in at 24 pages), the report is informative in a number of ways.

Maybe the most striking (although unsurprising) insight that can be gained from reading the report is that stakeholders are completely divided in their perception of how well EU copyright law meets the requirements of the digital environment: Citizens and institutional users think this is not the case while authors and other rightholders are convinced it does. Over at governance across borders Leonhard Dobusch has done an excellent job at illustrating this fact:

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EU commission to member states: Use Open Definition compliant licenses for your Public Sector Information

Last week the European Commision published Guidelines on recommended standard licences, datasets and charging for the re-use of documents. These Guidelines are intended to help member states with the implementation of the amended Public Sector Information directive that was adopted last year. With these guidelines the Commission hopes to provide ‘reference material for all institutions in all EU countries, in order to align their practices and make them more transparent and predictable for potential re-users’.

The guidelines put a lot of emphasis on the legal aspects of PSI. As part of this the Commission highlights the fact that not all documents need to be licensed, especially those that are in the Public Domain:

A simple notice (e.g. the Creative Commons public domain mark) clearly indicating legal status is specifically recommended for documents in the public domain (e.g. where IPR protection has expired or in jurisdictions where official documents are exempt from copyright protection by law).

In addition to this important clarification the Commission also provides clear recommendations for the use of open licenses:

Several licences that comply with the principles of ‘openness’ described by the Open Knowledge Foundation to promote unrestricted re-use of online content, are available on the web. They have been translated into many languages, centrally updated and already used extensively worldwide. Open standard licences, for example the most recent Creative Commons (CC) licences (version 4.0), could allow the re-use of PSI without the need to develop and update custom-made licences at national or sub-national level. Of these, the CC0 public domain dedication is of particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility for re-users and reduces the complications associated with handling numerous licences, with possibly conflicting provisions. If the CC0 public domain dedication cannot be used, public sector bodies are encouraged to use open standard licences appropriate to a member state’s own national intellectual property and contract law and that comply with the recommended licensing provisions set out below.

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Leaked draft of Commission copyright white paper based on flawed assumptions

Earlier this week the IPKat leaked what appears to be an internal draft of the European Commission’s white paper on copyright policy reform (“A copyright policy for Creativity and Innovation in the European Union”). Once finalized this white paper is supposed to sum up the current Commission’s position on making European copyright policy fit for the digital environment. As such the white paper will build on work that has been undertaken during the last couple of years, which included the Licenses for Europe stakeholder dialogue, a number of studies commissioned by the commission and a public consultation on a review of the European copyright rules that generated more than 11 thousand responses.

The white paper has been keenly awaited by anyone engaged in discussions about the future of copyright in the EU. Unfortunately, the document – at least in the form of the leaked internal draft – is a massive disappointment for anyone hoping for a serious review of copyright in the EU. This white paper clearly shows that at the end of one and half years of discussion those in the Commission who do not see a need for reform have managed to maintain their position. The white paper makes almost no mention of a need for legislative reform at the European level and instead presents a disjoined array of measures mainly consisting of recommendations for more harmonization between the member states and some extra guidance from the Commission to the member states.

After having been told by their own studies that a new balance between the rights of creators and the rights of users is both necessary and possible, and after having received literally thousands of responses to the consultation arguing in favor of more user rights, the commission has come full circle back to its initial position: At the core of the white paper lies the notion that copyright is not broken and that most problems created by the current copyright rules can be fixed through the reliance on licensing, minor, negligible changes to existing law, and reiteration of enforcement mechanisms. Coincidentally, this is perfectly in line with the position advocated by traditional publishers and other rights holder representatives throughout the entire process.

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