Contrary to what publishers think, Libraries serve the Public

Adreskaart voor boekhandel Scheltema en Holkema
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

#Stopgeoblocking: Make the internet less broken

Markt te Beauvais
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

Boudewijn van Heusden and his Wife Sophia Receiving Homage from the Legate of King Edmund
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”

Vrouw met spreektrompet
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.

Public Domain day 2016 at the European Parliament

Public Domain Day 2016
Celebrating the Public Domain in the European Parliament
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On Monday the 25th of January COMMUNIA organized a Public Domain Day celebration at the European Parliament. The event, which focussed on showcasing creators who have chosen to donate their output to the public domain, was hosted by MEP Julia Reda.

The following creators participated in the event and shared their experiences as input at the lunch table discussions: Kenney Vleugels, who makes game assets available to other game developers  under the the CC0 public domain dedication, Alastair Parvin of WikiHouse.cc, who is developing an open source approach to sustainable housing, Femke Snelting of Constant, who is publishing Public domain magazines, Eric Schrijver, who is writing a sharing guide for artists, and Thomas Lommee from Open Structures, a  standardised open design system. The lunch discussions focused on the artistic and design practices of these creators and the challenges they run into. A recurring theme was the legal uncertainty created by overly complex copyright laws, and the excessive length of copyright protection.

The Public Domain is traditionally seen as a body of old works that went out of copyright. Public Domain Day celebrates this very moment, when the period of copyright protection ends for works of certain authors. During our event we wanted to highlight the fact that the Public Domain is a modern phenomenon. That it is very much alive. From this perspective, the ongoing policy debate on European copyright will shape our Public Domain for years to come.

2016 is a crucial year for the public domain


As highlighted by Julia Reda in her intervention on Monday, 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. Reda mentioned that the European Parliament clearly expressed the desire to better protect the public domain, both in the eponymous Reda report, and more recently in its report on the Commission’s Digital Single Market strategy.

Unfortunately, measures related to strengthening the public domain do not seem to be very high on the Commission’s agenda right now. This is why we have used the Public Domain Day celebration to present a list of seven actions that will support the growth of the public domain in Europe. These actions are aimed at creating a modern copyright framework that is fit to serve the public interest in the 21st century. These actions need to be part of the update of the EU copyright rules. Continue reading

What the diary of Anne Frank can tell us about Text and Data mining

Allegorie op de scheikunde
Copyright must not be used to thwart scientific research
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Recently, everybody has been busy discussing the question of whether the Diary of Anne Frank will enter (or by now, has entered) the public domain on January 1st this year (Answer: It’s complicated). Surprisingly, the discussions surrounding the copyright in Anne Frank’s writings may shed some light on another contentious copyright policy issue: text and data mining. These insights are the result of a recent ruling by the District Court of Amsterdam in dealing with a dispute between the Anne Frank Stichting (owner of the physical diaries and operator of the Anne Frank House in Amsterdam) and the Anne Frank Fonds (owner of the copyrights in Anne Frank’s writings).

The Anne Frank Stichting announced plans to publish an edition of Anne Frank’s texts online after the presumed expiration of the copyright on January 1, 2016. In response, the Anne Frank Fonds sued the Stichting over what it considered unauthorised reproductions of Anne Frank’s writings. The reproductions had been made by the Stichting as part of its preparatory research for the on-line publication after the new year. Initially, this seemed to be an attempt by the Fonds to thwart or delay the Stichting’s plans for an online edition.

However, during the course of the legal arguments it became clear that under Dutch law (which governs uses made by the Stichting), Anne Frank’s original writings would not enter the public domain in 2016. This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright—in this case large parts of the original writings will only expire in 2037.

While this means that the Stichting had to shelve its plan to publish an online edition, the Fonds continued to press charges related to the reproductions (XML-TEI files) made by the Stichting in order to carry out its textual and historical research. The Stichting was sued alongside their research partner the Dutch Royal Academy of Science (KNAW). Both upheld the position that it did not require permission for making reproductions solely intended to enable its internal scholarship, claiming that copyright law should not be used to thwart scientific research. Continue reading

COMMUNIA response to the EU consultation on online platforms

At the end of the last year COMMUNIA submitted its response to the European Commission’s public consultation on online platforms. While we have not hidden the fact that this particular consultation is deeply flawed in its approach (see here, here and here), we have nevertheless chosen to submit answers to some of the question raised by the Commission via the consultation.

Our answers focus on the the questions related to the liability of platform operators for copyright infringing content that is made available via their platforms, additional layers of copyright protection, and on the open data section of the consultation. You can find our full response here (pdf).

We will continue to monitor the outcomes of this consultation and are curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu and Save the Link’s internet voice tool.

Copyright Communication: the good, the bad, and the ugly

Het brood der toekomst wordt strijdend gewonnen
Copyright reform: the long struggle ahead
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Yesterday, the European Commission published its long awaited communication on copyright. The document titled ‘Towards a modern, more European copyright framework‘ doesn’t contain many surprises, which is both due to the fact that it is largely identical to a draft version that was leaked at the beginning of November, and that the Commission has opted for a safe approach that proposes minimal changes to the existing rules.

The latter is confirmed by the proposal for a regulation ‘on ensuring cross-border portability of online content services in the internal market’ that the Commission published alongside the Communication. In the light of the Commission’s earlier statements that it wants to create a digital single market, this proposal is a huge disappointment as it only covers access to online services while users are temporarily outside of their ‘Member State of residence’. It does nothing to address the much more important problem that copyright-protected works that are available to citizens of some member states are not available to users in other member states (the Commission promises to ‘address’ this issue in 2016 through a number of market led interventions, suggesting a slow policy crawl against geoblocking).

Ensuring that paid-for subscriptions to content continue to work once the paying customer travels to another member state is nice, but it does not constitute a digital single market. The proposed regulation on cross border portability will put an end to one of the most annoying consequences of a territorial copyright system. But by making the system a little more bearable the this move can also be expected to further entrench the reality of territorial markets.

The fact that enabling portability requires a legislative intervention on the EU level speaks as much to the growing imbalance of the copyright system as it does to the inability of the Commission to deliver on the digital single market promise. Even though this intervention seems to be rather minimal, rights holders are already complaining about the Commission’s proposal, and it will be interesting to see if the Commission will be able to make good on its intention to shepherd the proposal through Parliament and Council within the next year so that it can come into effect in 2017.

The rest the communication does not contain any concrete proposals, but rather identifies areas where the Commission is planning legislative (and non legislative) interventions in 2016. As mentioned above, the text of the communication is largely identical to the leaked draft which we have analysed here. In the following section we will highlight the good, the bad, and the ugly parts of what the Commission is planning for 2016.Continue reading

UK Intellectual Property Office: what is in the Public Domain must stay in the Public Domain

Figuren bij een drukpers
Digitization does not create new rights over Public Domain works
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It is not often that we find ourselves in agreement with the copyright policy positions of government entities entrusted with maintaining the copyright rules. Given this it is somewhat of a rare find to discover the UK Intelllectual Property Office (IPO) has recently thrown its full weight behind our policy recommendation #5 (‘Digital reproductions of works that are in the Public Domain must also belong to the Public Domain.’). In a recently updated copyright notice on ‘digital images, photographs and the internet’ the IPO provides the following answer to the question ‘Are digitised copies of older images protected by copyright?’

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

Continue reading

Open Letter on the Commission’s flawed Online Platform Consultation

A woman shouting into a man's ear-trumpet. Wood engraving.
Consulting without listening?
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Last week we have pointed out our concerns about a number of copyright related questions buried deep inside the EU commission’s ongoing consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy‘. Our main points were that the consultation does not adequately address the effects of regulatory measures aimed at platforms on EU citizens and that the consultation is designed in such a way that it discourages end users from participating.

Today we have relayed these concerns in letters to First Vice President of the European Commission Frans Timmermans (who is in charge of the better regulation agenda) and Members of the European Parliament. These letters are supported by 29 organisations representing civil society, news publishers, consumers and the digital industry share their concerns regarding the European Commission’s approach in consulting on copyright matters. The letter makes it clear that we are not the only ones who consider the online platforms consultation to be flawed:

The Commission’s “Online Platforms consultation” includes some questions on copyright, which had not previously been the subject of consultation. However, critical questions dealing with the creation of new, controversial copyrights for publishers are only open to right holders to answer, denying European citizens and relevant stakeholders the right to be heard. Further, the Commission is set to adopt a Communication on Copyright on 9th December, which covers these issues, before the end of the consultation and a proper analysis of the contributions received. Continue reading