The Public Domain at WIPO CDIP/9

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In November, Communia made a statement to support the Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2) discussed at the WIPO Committee on Development and Intellectual Property (CDIP). Three recommendations had been selected by the member states for further work by the WIPO secretariat:

1.c. The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point.

1.f. International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance.

2.a. The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).

Document CDIP/9/INF/2 entitled Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain has thus been drafted by the secretariat and presented at this CDIP/9. Melanie Dulong de Rosnay on behalf of Communia made the following statement to support this Information Document Clarifying the Scope of Séverine Dusollier’s study:

“Dear Mister Chairman,

Congratulations on your election.
We thank the secretariat for preparing the document CDIP/9/INF/2 Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain, and support all of these recommendations. Continue reading →

Sharing the COMMUNIA Thematic Network’s Final Report

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We are glad to announce that the COMMUNIA Thematic Network’s Final Report, as approved by the European Commission, is available online: http://communia-project.eu/final-report.

The Report of the eponymous Thematic Network provides a basis for action taken up by its successor, the COMMUNIA International Association. The document is depicting a wide range of issues and is proposing answers to crucial questions:

The Digital Public Domain: Foundations for an Open Culture

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The book “The Digital Public Domain: Foundations for an Open Culture”, edited by Melanie Dulong de Rosnay and Juan Carlos De Martin as an output of the Communia Thematic Network which took place between 2007 and 2011 and is at the origin of Communia Association, is out in all formats (hardback, paperback, and digital editions) and can be purchased on the website of OpenBookPublishers.

book cover The book is under a CC Attribution license and the PDF can be downloaded here: The Digital Public Domain: Foundations for an Open Culture

Citation reference: Melanie Dulong de Rosnay, Juan Carlos De Martin, (eds.), The Digital Public Domain: Foundations for an Open Culture, Open Book Publishers, Cambridge, UK, 2012, 220 p.

This book brings together essays by academics, librarians, entrepreneurs, activists and policy makers, who were all part of the EU-funded Communia project. Together the authors argue that the Public Domain — that is, the informational works owned by all of us, be that literature, music, the output of scientific research, educational material or public sector information — is fundamental to a healthy society.

The essays range from more theoretical papers on the history of copyright and the Public Domain, to practical examples and case studies of recent projects that have engaged with the principles of Open Access and Creative Commons licensing. The book is essential reading for anyone interested in the current debate about copyright and the Internet. It opens up discussion and offers practical solutions to the difficult question of the regulation of culture at the digital age.

Information Sans Frontières: Orphan works directive in it’s current form creates more harm than good

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Information Sans Frontières (ISF), an alliance representing public cultural heritage institutions in Europe, has published a new position statement on the proposed Orphan Works directive. On 23 March the ISF reacted to the recent changes in the proposal that resulted from the ongoing negotiations between Council, Parliament and the Commission stating that it was “deeply disappointed in the outcome.” The ISF is highly critical of the latest version which has transformed the proposed Directive into an instrument that is more likely to complicate access to orphan works than to promote it.

According the ISF there are 4 main issues with the Orphan Works directive in it’s current (23 March) form:

  1. The provision to require remuneration for past use of an orphan work as a rights holder re-appears needs to be removed. It undermines the entire purpose of the directive which is to create certainty for users of orphan works (we have raised this point before)
  2. The provision allowing commercial uses of orphan works (article 7 in the original proposal) needs to be restored in order to allow for public-private partnerships to fund digitization projects
  3. The provisions on technical requirements for record keeping related to diligent searches carried out in order to identify orphan works should be made less technology-specific.
  4. The ‘liability’ amendment that has been added as recital 16a needs to be removed as it increases legal uncertainty for users of orphan works and as such is counterproductive to the overall aim of the directive (facilitating the digitization of Europe’s cultural heritage).

This analysis provided by ISF is largely in line with the concerns raised by COMMUNIA in our policy paper on the proposed directive and later statements on this site. Overall Information Sans Frontières makes it clear that it considers the directive in its current form unable to achieve the objectives it is supposed to achieve. In an updated version of the position statement from 2 april the ISF concludes that:

… we hope that the high-lighted difficulties will be removed in forthcoming negotiations with the Commission and Council. If they are allowed to remain, the Directive will not achieve its purpose, according to the Commission’s IP strategy of promoting the digitisation and making available of the collections of European cultural institutions (p.13). We believe that the Directive will set damaging precedents, and will be of negligible use to our member institutions. As the intended beneficiaries of the Directive, we shall ask the Parliament to reject the Directive in plenary if these problems are not solved.

As we have mentioned here before it is alarming to see an organization representing the intended beneficiaries of the proposed directive reject it in its current form. This is more than understandable as the changes that have been introduced during the negotiations so far have turned a good but technically flawed instrument into an instrument that introduces additional uncertainties and restrictions for cultural heritage institutions that are already struggling to provide access to cultural records from much of the past century.

Cultural heritage institutions concerned over proposed European orphan works directive

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This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

The Proposal for a Directive on certain permitted uses of orphan works, introduced in the European Parliament on 24 May 2011, has been following its merry way through the legislative meanders ever since. The debates around the text of the proposal are heating up right now, for the European Commission pushes for rapid adoption while stakeholders watch out against any measure possibly affecting their respective interests.

Already since the beginning of this year, the Danish Presidency has published two revised compromise proposals, one on 6 January and the second one on 10 February 2012. The last proposal was followed by a Presidency non-paper on a possible single database for orphan works for discussion at the Working Party on Intellectual Property (Copyright), held on 17 February 2012. The drafting suggestions made by the Belgian delegation have unfortunately not yet been made available.

The crux of the discussions revolves around the need under the Proposal for a directive for cultural heritage institutions to carry out a diligent search about the orphan status of a work and the extent of such an obligation. Cultural heritage institutions warn that the unhappy result of imposing such an obligation may be that large-scale digitization efforts will see no benefit, after the adoption of the Directive, over the situation they face now. The danger remains that the twentieth century will remain the unknown century for Europe’s children. Its culture will be inaccessible in digital format.

A realistic and practical approach about the kind of collection represented by orphan works is paramount. Examples are:

  • Books discussing the chances of war, published 1910-1913
  • Sound recordings of ordinary people, using ordinary speech, to illustrate regional dialects in Denmark
  • Anonymous political pamphlets expressing dissident views under the Communist regime in Hungary

For each of these collections the commercial value of the rights is zero or nearly zero. Safeguards for rightholders of orphan works are required, but need to be proportionate to the kind of material in a collection.

A call has been made by cultural heritage institutions to the Council of Minsters’ working group for a more balanced and practical solution as follows:

  • Diligent search, a valuable concept, must not necessarily apply to every work (including every embedded work), but must be proportionate to the collection being digitized
  • Restrictions on commercial use must be sufficiently flexible to allow for commercial funding of digitization projects
  • Requirements for recording diligent searches, and uses of orphan works, should not be over-specified in law
  • If the use of an orphan work is permitted by the national licensing scheme of a Member State, the Directive should provide for the permission to extend to all Member States in that particular case. (Such a provision would not impose licensing solutions on all Member States. But it would avoid a fragmented Internal Market of mutually exclusive licensing arrangements.)

The Presidency non-paper of 14 February partly responds to these concerns by suggesting that a single database be set up following the ARROW model to convey information about which work is being used and by whom.

The question remains, however, whether the other concerns voiced by cultural heritage institutions regarding the extent and the cross-border validity of a diligent search will be addressed in the final text of the directive.

To be continued!

Public Domain Day 2012 (Paris)

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Following the trend established by the Communia Thematic Network, we celebrated Public Domain Day in Paris on the 26th of January with an event organised by the Communia Association, Wikimedia France, Creative Commons France, the CNRS Institute for Communication Sciences and the Open Knowledge Foundation.

What unites all these organisations is that they share the common goal of encouraging the dissemination of knowledge and information, including – but not limited to – works that are in the public domain.

After an introduction by Adrienne Alix (Wikimedia France) and Mélanie Dulong de Rosnay (ISCC/Communia), the event started with a screening of Georges Méliès’ science fiction movie “A Trip to the Moon” from 1902. This was followed by a presentation of works that entered the public domain on January 1st 2012. A list was created by sorting the entries of Wikipedia according to the authors’ deaths and is available at the following address. The list includes famous French authors such as Maurice Leblanc (Arsene Lupin), as well as the painter Robert Delaunay. It also includes internationally renowned authors such as James Joyce and Virginia Woolf, to name a few.

After the initial celebration, Lionel Maurel (Bibliothèque Nationale de France) and Primavera De Filippi (Open Knowledge Foundation) went on to illustrate the role of open bibliographic metadata in its relation with the public domain. While accurate and precise metadata is necessary for the purpose of identifying works that have fallen in the public domain, it is often difficult for libraries and other cultural institutions to provide all necessary information to properly determine the legal status of a work. This also was the occasion to present the Public Domain Calculators of the OKF and the challenges that must be addressed as a result of the complexities of French copyright law. Continue reading →

Petition in support of a single European Data License

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In line with an issue raised in our policy paper on the proposed amendments to PSI Directive there is now a Spanish petition that asks the Europeana Commission to propose a single open data license to be used for Public Sector Information across all EU member states:

Dear Neelie Kroes,

We sincerely admire the courage and innovacion [sic] spirit shown by the European Commission in the revision of the ReUse of Public Sector Information Directive. However, as a member of the Opendata community I think the new Directive will be incomplete without the definition of an Opendata Licence shared by all the Member States Public Administration.

We encourage the European Commission to propose the Member States an Opendata Licence, badly needed to create a ReUse of PSI single market. The alternative to a shared opendata licence in the European Union would be a fragmented market similar to the current intellectual property rights landscape in Europe.

Let’s build a single opendata market with a single opendata licence.

Of course a open data space with fragmented licensing conditions cannot never be as bad as the overall intellectual property rights landscape in Europe, but the overall argument is very solid. If the Commission wants to unlock the potential of open data for all of Europe then the best instrument to do so is a single, standardized open data license for all of Europe.

Public Sector Information to be discussed in Bruxelles

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The European Thematic Network on Legal Aspects of Public Sector Information (LAPSI, coordinated by Politecnico, NEXA Research Center, Torino) is hosting its 2nd public conference in Bruxelles on January 23rd & 24th.

As the European Commission is presenting a proposal for a Directive amending the 2003 Directive on re-use of public sector information, the question is now about how to implement the proposed amendments in practice, with the purpose of enhancing innovation and genuine public access to open data. Since 2003, the technical and societal environment of public sector information has changed, while raising issues deserving an adapted legal framework, be it as regards IP rights, competition and the protection of private data and access to information. While the Commission representative addresses the EU “Open Data Strategy”, all the high level experts and academics gathered at the conference (Marco Ricolfi, Séverine Dusollier, Hanns Ullrich, Josef Drexl, Miram Bitton, Mireille van Eechoud…) seem to agree that the legal minefield might be difficult to avoid.

COMMUNIA’s Policy Paper on the Commission’s proposal of amendment to the PSI Directive is publicly presented at the conference on January 24th by Daniel Dietrich from the Open Knowledge Foundation. While COMMUNIA supports the need to amend the PSI Directive, and praises the widening of its scope to cultural heritage institutions (despite the amendments do not include all of them), the Association is suggesting several improvements to the proposed text, insisting on the fact that the Public Domain would deserve a more consistent policymaking at the European level.

 

 

COMMUNIA policy paper on proposed amendments to PSI Directive

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Today the COMMUNIA International Association presents its second policy paper. The paper is a reaction to the European Commission’s proposal to amend the Directive on re-use of public sector information (2003/98/EC).

COMMUNIA is supportive of the Commission’s suggested changes to the PSI Directive — most notably the decision to include cultural heritage institutions into the scope of the amended Directive. Access to and re-use of public sector information (PSI) has been one of the issues that has featured prominently in the work of COMMUNIA. The EC proposal to amend the PSI Directive is aligned with one of COMMUNIA’s January 2011 policy recommendations (#13), which states, “The PSI Directive needs to be broadened, by increasing its scope to include publicly funded memory organisations – such as museums or galleries – and strengthened by mandating that Public Sector Information will be made freely available for all to use and re-use without restriction.”

The policy paper draws attention to two issues where the proposal to amend the Directive should be improved. The first one concerns the conditions for re-use of public sector information that falls within the scope of the Directive and the second one deals with public domain content that is held by libraries, museums and archives.

Conditions for re-use of public sector information 

From the perspective of COMMUNIA the way the amended Directive addresses licensing of public sector content remains underdeveloped and as such has the potential to create diverging and potentially incompatible implementations among the Member states. The article of the amended Directive dealing with licensing mentions “standard licenses,” but does not sufficiently clarify what should be considered to be a standard license, and encourages the development of open government licenses. Instead of recommending the use and creation of more licenses, COMMUNIA suggests that the Commission should consider advocating the use of a single open license that can be applied across the entire European Union. Such licenses (stewarded by the Open Knowledge Foundation and Creative Commons) already exist and are widely used by a broad spectrum of data and content providers.

Public Domain Content held by libraries, museums and archives

COMMUNIA supports the decision to include cultural heritage institutions under the purview of the PSI Directive, as such a move will improve citizens’ access to our shared knowledge and culture and should increase the amount of digitized cultural heritage that is available online. While the amended Directive makes it clear that documents held by cultural heritage institutions in which there are no third party intellectual property rights shall be re-usable for  commercial or noncommercial purposes, it does not address the largest category of works held by cultural heritage institutions — those that are not covered by intellectual property rights because they are in the public domain. COMMUNIA thinks that explicitly including public domain content held by libraries, museums and archives in the re-use obligation of the amended PSI Directive will strengthen the Commission’s position with regard to access and re-use of public domain content.

The full COMMUNIA association reaction to the EC’s proposal to amend Directive 2003/98/EC on re-use of public sector information can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.

The hangover after Public Domain Day…

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This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

The New Year’s festivities are just behind us and with these the celebrations around Public Domain Day 2012 that took place in different cities in and outside Europe (Warsaw, Zurich, Turin, Rome, Haifa etc.).

2012 brings with it the joy of using James Joyce’s masterpieces without asking the estate for prior authorization (which more often than not met with a ‘no’ for an answer!). No one needs to be afraid of using the works of Virginia Woolf any longer! And the fans of Arsène Lupin, the French ‘gentleman burglar’, are now able to borrow – for good! – the ideas of its author, Maurice Leblanc. The works of several music composers are also free for reuse, including those of Frank Bridge and Johan Wagenaar.

The Public Domain Day IS important and SHOULD be celebrated annually, for it gives us the occasion to reflect on the significance of works of past authors and to measure the wealth of our common knowledge and culture. But unlike the New Year’s celebrations, however, those of the Public Domain Day do not attract much attention among the general public. Festivities of this sort are usually low-key, taking place in libraries, universities or cafés and gathering only the selected few of the well informed and culturally savvy.

Any cramped optimism concerning the public domain is further discouraged by the fact that the term of protection for copyright and related rights is 1) highly unharmonized across jurisdictions and 2) still being strechted beyond recognition through constant legislative action.

As an illustration of the first point, let me mention the case of world famous writer Ernest Hemingway (1899-1961) whose works have fallen into the public domain two days ago in Canada, but neither in his home country, the United States, or in Europe, where copyright lasts for the life of the author + 70 years.

In Europe, the calculation of the term of protection for copyright and related rights is rendered particularly complex due to the lack of proper harmonisation of the governing rules in EU jurisdictions. Although the adoption of the EC Term Directive was an attempt to alleviate disparities between the Member States, harmonisation gaps persist. As a result, the composition of the public domain will differ depending on the country in which protection is sought, as works fall out of copyright on different dates in different EU jurisdictions. This effect is illustrated in the Public Domain Calculators by the need for separate calculators, giving upon occasion very different results, for each of the 30 jurisdictions covered, including the 27, ostensibly harmonised, EU Member States.

In relation to the second point, 2012 will inevitably see the first pieces of national legislation emerge in the EU Member States towards the implementation of Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. Through this statutory amendment only sound recordings published or communicated to the public before 1941 will be free for use. In practical terms, this means that none, not even the early recordings, of Maria Callas will be available for re-use without prior authorization of the record company holding the rights.

Finally, the march towards term extension does not seem to have reached its limit if one only takes a look at the clauses contained in bilateral and mulilateral trade agreements currently negotiated by the United States. Article 4.5 of the Trans-Pacific Partnership, for example, would bring the copyright term of protection of signatory countries up to the American (and European) level, as has been the case in the past in the context of bilateral agreements (with Australia and many countries of Central and South America, to name but these).

These are very sobering thoughts indeed! If the alcohol fumes of the New Year’s party still had any effect, one could even be tempted, for simplicity’s sake, to just make copyright protection perpetual…