Traditionally, at the beginning of the new year we celebrated what is known as Public Domain Day: on the first of January of any given year the works of authors who have been dead for more than 70 years enter the public domain. As this is a decisive year for copyright reform in the European Union, it seems much more important to highlight the dangers for the public domain that we are facing in the context of the copyright reform process (you can refer to Wikipedia and the Public Domain Review for overviews of works that have entered the public domain this year).
While copyright reform generally has a positive connotation, it is important to realise that a reform does not mean that things will change for the better. As we have pointed out before, the copyright reform package presented by the Commission is extremely one-sided. And both the attempt to introduce a new right for press publishers, and the requirements for online platforms to filter user uploads, have the potential to cause a lot of damage to the public domain and the ability of users to access information and express themselves online.
Shrinking the public domain
When it comes to the public domain the proposal to introduce a new right for press publishers contained in article 11 of the Commission’s proposal is the most dangerous, as it has the potential to shrink the public domain. Our 2010 Public Domain Manifesto defines the public domain as being
… comprised of our shared knowledge, culture and resources that can be used without copyright restrictions by virtue of current law.
This definition implies that the scope of the public domain can change in response to changes of the legal environment. The most obvious would be changes to the duration of copyright protection. Lengthening the term of protection would shrink the public domain while shortening the term would grow the public domain (as we argue for in our policy recommendation #1).
A little bit less obvious is the fact that creating new exclusive rights also impacts the public domain. A new publishers’ right would mean that materials which are currently part of the public domain could suddenly become protected. As proposed by the Commission, the new right would apply to any press publication. If such a press publication contains public domain materials, these materials would suddenly be protected under the new right.
The fact that the new right could be used to lift materials out of the public domain (if the new right would apply retroactively) has been noticed by others as well. In its opinion on the copyright reform proposal the Centre d’Études Internationales de la Propriété Intellectuel (CEIPI) argues that
The Directive Proposal does not limit the subject matter to publications presently protected by authors’ rights. It goes far beyond, restricting, for example, uses of works in the public domain. Lifting materials out of the public domain has unwanted consequences, impinging greatly on freedom of expression and democratization, while favouring centralization of information.
An attack on open content
Similar effects can be expected for openly licensed press publications, a term which according to recital 33 of the Commission’s proposal includes news websites. Blogs and websites that contain materials published under Creative Commons licenses would suddenly be protected by a new layer of rights that could be used by their publishers to restrict how these materials can be used. This concern is also highlighted in the Centre for Intellectual Property and Information Law (CIPIL) submission to the UK Intellectual Property Office which has been signed by 37 law professors and scholars:
In addition, the Proposal will create costs associated with huge uncertainties, particularly in respect of the field of application, that the right creates. These costs will need to be incurred by the very many operators who have no interest in the right, but fall within the broad definition of press publication […], who will need henceforth to amend even open-access licences and Creative Commons licences to permit reuses.
A solution that preserves the public domain
All of this illustrates that introducing new rights is a terrible idea. Even more, since there is no demonstrated need for such a right. As we have argued in our position paper on the publisher’s right, there are much more suitable interventions to address what is essentially an enforcement problem faced by press publishers. This assessment is shared in the above mentioned CIPIL submission which notes that:
However, if the real problems facing press publishers relate to licensing and enforcement, the best answer is surely to focus on licensing and enforcement rather than to create new rights. More specifically, the goal of simplifying enforcement might be achieved by a much simpler and proportionate strategy: the amendment of Article 5 of the EC Enforcement Directive, to create a presumption that a press publisher is entitled to bring proceedings to enforce the copyright in any article or other item appearing in a journal of which it is the identified publisher. This would be a presumption that a defendant could rebut by showing that the material used was in the public domain or licensed by the author. The Commission nowhere considers this option.
The fact that the Commission has not even considered such a much less invasive option should be a huge red flag for the European Parliament. From the very beginning the press publishers’ right has been a political project driven by former Digital Economy and Society Commissioner Oettinger. Unfortunately there are no signs that his departure from that post has lead to a re-assessment by the Commission. Instead, it appears that the Commission is digging in to defend the proposal, even though it has yet to make the case why this destructive intervention is needed at all.