COMMUNIA policy paper on proposed Directive on collective management of copyright

Today the COMMUNIA International Association presents its sixth policy paper. The paper is a reaction to the European Commission’s proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market.

The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.

Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This proposed directive intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and public access to knowledge should be a priority of policy-making.

The policy paper draws attention to two issues where the proposal should be improved. The first one concerns the transparency of repertoire information. We consider the proposed measures not sufficient and suggest an amendment to require that CMOs must provide this information more widely. The second issue concerns the relation between collective management and open content licenses. In our opinion, the proposed directive fails to address the existing incompatibilities between the collective management of rights and open content licensing.

The full COMMUNIA Association reaction on the Directive proposal on Collective Management of Copyright can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.

Are European orphans about to be freed?

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

Last week, the European Parliament approved the draft Directive on certain permitted uses of orphan works. The approval of the Council of Ministers is expected to occur shortly.

This is big news indeed, for it’s the first draft directive in the area of copyright law to make it this far in more than 10 years. It’s been commented and reported by many.

The proposed directive is striking in many respects. Most prominent is the virtually unanimous opinion that the directive ‘is a step in the right direction’, but that it ‘will not facilitate nor promote mass digitization and large-scale preservation of Europe’s vast cultural heritage’. This conjures up the image of the elephant giving birth to a mouse.

The text of the proposed directive went through several iterations before reaching its current stage, including the last amendments brought by the Parliament to the compromise text of last July. Some of the sharp edges have been softened in response to criticism, but the main point of contention remains: how can a cultural heritage institution with millions of items in its collection proceed with digitization if it must conduct prior to use a diligent search for each item? Since this train could not be stopped, cultural heritage institutions are now looking in the direction of their own lawmakers and partner-stakeholders to determine what constitutes a ‘diligent search’ at national level, following the criteria they may establish pursuant to article 3(2) of the directive.

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The hangover after Public Domain Day…

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…

Information Sans Frontiers highly critical of proposed orphan works directive

Information Sans Frontières, a newly formed alliance from the library world (Europeana, JISC, LIBER and EBLIDA) has just released a memorandum on the proposed orphan works directive addressed to the Council of the European Union. The memorandum, backed by some of the the most obvious beneficiaries of the proposed directive is nevertheless highly of the proposal:

Information Sans Frontières is an alliance representing the institutions in the Member States addressed by the proposed Directive. We urge that the Directive should embrace unpublished as well as published works, and creative works in all media. We are unanimously of the view that the Directive is in danger of failing to achieve its policy objectives, in particular large-scale digitization projects. The Presidency compromise proposal has several inherent contradictions with respect to the purpose of the Directive.

  • It is too prescriptive of the methods to be used by the target institutions, insisting on procedures that in some cases will be impracticable
  • It is insufficiently hospitable to solutions based on licensing, which are mentioned briefly in Recital 20 but which have no legislative support in the following Articles in order to allow them to function across borders
  • It seeks to modify the exceptions contained in Directive 2001/29/EC by adding further restrictions on the freedom of action of the target institutions
  • It prescribes over-burdensome methods for institutions to publish their records

You can read the full text of the memorandum here (ISF does not seem to have a website yet).

The memorandum echoes some of the objectives raised by COMMUNIA in our own policy paper on the directive, and raises a couple of issues that we have not touched upon. It is of course rather worrisome that and organization such as Europeana, which embodies the aspirations of the Europeana Union in the digital heritage realm, makes it this clear that the proposed directive will not make it any easier for them to achieve it’s objectives. This is even more worrying since it is the same European Commission that is formulating these objectives, via it’s Recommendation Commission recommendation on the digitisation and online accessibility of cultural material.

COMMUNIA policy paper on the proposed orphan works directive

Today the COMMUNIA International Association presents its first policy paper. The paper analyzes the European Commission’s proposed directive on certain permitted uses of orphan works (COM/2011/0289) in the light of its effects on the Public Domain. The paper contains suggestions for improving the directive to make it more suitable to the stated objective of increasing access to cultural heritage material that is currently locked away by a dysfunctional copyright system.

COMMUNIA is especially concerned with the narrow focus of the directive and its one-sided view on diligent search. In its current form the directive does not meet COMMUNIA’s March 2011 policy recommendation on orphan works:

Recommendation #9: Europe needs an efficient pan-European system that guarantees users full access to orphan works. Both mandatory exceptions and extended collective licensing in combination with a guarantee fund should be explored. Any due diligent search requirements should be proportionate to the ability of the users to trace the rights holders.

According to the policy paper, a main weakness of the proposed directive is its narrow focus on public cultural heritage institutions as the only beneficiaries of the proposed exceptions allowing the use of orphaned works:

It is COMMUNIA’s position that the group of users who may benefit from the orphan works directive should be widened to include everyone. The targeted group of end users should include individuals as well as non-profit initiatives like Wikipedia, which would currently not benefit from the proposed directive. Wikipedia is one of the most important platforms for access to cultural heritage information drawing more than 136.9 million European users alone.

A further concern is the vague standard for search.

There need to be mechanisms to determine the location where a search has to be carried out in cases where the works have not been published or where it is unclear where the works in question have been first published.

The full set of comments in the COMMUNIA policy paper on the proposed orphan works directive can be downloaded here. For further information about the paper please contact the COMMUNIA Association’s Orphan works working group at communia DOT association AT gmail DOT com.

Open GLAM workshop

Join us in Warsaw before the CC Global Summit for a kickoff workshop that will bring together stakeholders to begin a global project to encourage GLAM institutions to make their metadata and digital copies of public domain works freely and openly available for all to reuse without restriction.
Thursday, September 15, 2011 from 10:00 AM to 6:00 PM (GMT+0100), Warsaw, Poland
Register at http://open-glam.eventbrite.com/

Launch of the COMMUNIA Non-Profit Association

After almost four years of activities, the COMMUNIA Project is closing down. But many members, willing to pursue its overall goals, decided to form of an International Non-Profit Association based in Brussels. The Association’s mission is to educate about, advocate for, offer expertise and research about the public domain in the digital age within society and with policy-makers.

The COMMUNIA Association aims at expanding the discussion and activities carried out by the Project so far, planning in particular to help us create a more balanced discussion about copyright in the digital environment and maximize the economic, social and cultural impact of our cultural and scientific heritage.

The COMMUNIA Association launch event is planned for Thursday June 16, 2011 at 21:00h , at The MONK Café Rue Sainte Catherine, 42, in Bruxelles. Everybody is welcome!

Here is a first article/interview about the new Association, while a list of 14 principles to protect and promote the public domain has already been drafted. It includes a warning against ever-longer automatic copyright protection periods (up to 90 years), a call to sanction “any false or misleading attempt to misappropriate public domain material,” and to only grant full copyright protection to registered works.

Please spread the word, join us in Bruxelles and follow the COMMUNIA association on Twitter!

Communia Association Launch

16 June 2011

(from 21:00 onwards)

Venue:
THE MONK CAFÉ
Rue Ste-Catherine, 42 (BRUSSELS)

Programme:

  • Open discussion about the public domain in the digital world, the future challenges
  • Prospectives on the future activity of Communia
  • Drinks and networking