Communia has responded to Public Consultation on the review of the EU copyright rules that closes today. While we wait for the Commission to publish all the responses on its own website (given that we are hearing about more 10.000 responses so far this will likely be quite a challenge) we have uploaded our response here (pdf).
In our response we call for a radical overhaul of the European Copyright rules. In line with our 2011 policy recommendations we argue for a shortening of the copyright term, the introduction of a registration system, more harmonization of the limitations and exceptions (with the final goal of a single European copyright code), and a strengthening of user rights via a robust set of limitations and exceptions that ensure access to our shared knowledge and culture online. In addition to broadened or new exceptions for cultural heritage institutions, educators, researchers, people with disabilities and private individuals we also call for the introduction of more flexibility by adding an open norm to the list of existing exceptions.
We are very pleased to see that there has been a massive response from citizens and civil society organisations to this consultation. While the content of these responses is only known to the Commission at this point, the amount of responses clearly proves that the Commission’s strategy to limit the discussion about copyright policy to an intra-industry discussion about licenses is no longer sustainable. Europe needs a new set of copyright rules that embrace the opportunities created by the digital age, and this discussion needs to include citizens and civil society as important stakeholders. As far as Communia is concerned this discussion needs to focus on maximising the social and economic benefits of the internet instead of facilitating specific internet based business models.
You may have heard that the EU is currently reviewing copyright in order to ensure that it ‘stays fit for purpose in this new digital context’. While the public consultation on this topic is still running, EU officials have started to give some insights on how they see the digital environment that needs to be served by new copyright rules. In recent weeks officials at the European Commission’s Internal Market and Services Directorate General (which is in charge of copyright policy) have been passing around this diagram of what they call the ‘Internet Ecosystem value tree’:
The ‘Internet Ecosystem value tree’ according to the European Commission.
Apparently this Internet Ecosystem value tree is rather important in how the Commission sees the relationship between copyright and the digital environment. This is expressed in the concerns raised about the ecosystem’s ability to sustain the value tree. Commission officials are pointing out ‘that the roots need to be fed for the tree to keep blossoming’ and that this needs to happen via a ‘transmission belt of Euros’ (which seems to refer to the € Licenses arrow in the diagram above).
A transmission belt of Euros
Now anyone is entitled to their own opinion and views of the world, but it is alarming to see that the very people who are in charge of formulating the rules that will shape our use of the digital environment for years to come are basing their ideas on a rather simplistic model of the internet, that looks at the internet as if it was yet another push medium in the the line of newspapers, radio, CDs or television.
With the EU consultation on a review of the European Copyright rules still ongoing (the new extended deadline is the 5th of March) it is nice to see that some other countries are apparently making progress with their national copyright reform agendas. One of the most interesting bits of news is coming out of Australia.
The Australian Law Reform Commission has just published its report on Copyright and the Digital Economy. At the centerpiece of this report we find the recommendation to replace the existing system of purpose-based exceptions with a flexible fair use style exception. The proposal, on which the 1709 Blog has a very useful summary, combines a fair use clause with a number of illustrative purposes that aims at providing legal certainty for specific types of uses:
Under the proposed framework, determining whether a use is ‘fair’ requires the balancing of the same four factors as those that underpin the US fair use doctrine, ie:
- the purpose and character of the use;
- the nature of the copyright material;
- the amount and substantiality of the part used; and
- the effect of the use upon the potential market for, or value of, the copyright material.
A more extensive (non-exhaustive) list of illustrative purposes than appears in the US statute is also recommended for inclusion. It covers:
- research or study;
- criticism or review;
- parody or satire;
- reporting news;
- professional advice;
- non-commercial private use;
- incidental or technical use;
- library or archive use;
- education; and
- access for people with disability.
In the context of the ongoing EU consultation it is especially interesting to see a set of recommendations that try to combine the advantages of a fair use approach (flexibility and adaptability to new technological developments) with the advantages of an approach that relies on exceptions for certain clearly defined types of use (legal certainty for users that fall into these categories).
A number of the already published responses to the EU copyright consultation are suggesting a similar approach for Europe. These include the response by Copyright4Creativity (to which Communia has contributed) but also the responses by Europeana and by a number of Dutch cultural heritage institutions.
While we are waiting for the next steps of the European copyright reform process, the report by the the Australian Law Reform Commission, which draws on the outcomes of a similar public consultation, shows that a fair use approach certainly has its merits.
As we have mentioned here before, the European Commission has launched a consultation on the future of European copyright policy. The responses provided to the questionnaire must be submitted by 5 February 2014 and will be used as a justification for future policy proposals from the Commission. If citizens and professionals don’t make their voice heard the outcomes of the consultation will likely be used to further limit citizens’ rights to create, share and access culture and to further weaken the public domain.
Fix copyright – take part in the consultation
In order to prevent this from happening, COMMUNIA has joined forces with a range of other NGOs and professional associations to produce a tool that helps citizens and professionals to respond to the consultation in a way that promotes access to culture and a strengthening of the the public domain. The results of this collaboration can be found at youcan.fixcopyright.eu.
The tool lets you filter the 80 questions from the consultation document based on a number of different personas (we have compiled selections for online users, parents, teachers/academics/researchers, freelancers/entrepreneurs/businesspersons, librarians/cultural heritage professionals, bloggers/remixers, disabled users and rights holders). There is of course an option to answer all questions. The website also provides background information and advice on how to respond to the questions.
If you care about a copyright system that promotes innovation and access to culture in the digital environment and if you care about the public domain, you should respond to the consultation today! You may also want to ask friends and colleagues to do the same.
Last week Thursday the European Commission launched its much anticipated public consultation on the review of the EU copyright rules. This consultation is the first visible sign of the second track of the Commission’s attempt to modernise the EU rules (the first track consisted of the rather unsuccessful Licenses for Europe stakeholder dialogue). In the words of the Commission the focus of the consultation is on:
… ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity.
With regards to the contents of the consultation, a first reading reveals a mixed bag of questions, with a surprising amount of them actually touching on issues that are closely related to our own policy recommendations. The consultation comes in the form of a 37 page document with a grand total of 80 questions that cover everything from the functioning of the single market for copyrighted works, linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights, and even the possibility of a single EU copyright title. Finally there is an open question for everything else that stakeholders might want to tell the Commission.
The deadline for providing answers to all of these questions is the 5th of February, which if one takes into account the upcoming holiday period is rather short. Continue reading
Today Creative Commons (CC), the US non-profit that publishes the Creative Commons licenses (and Communia Member) has published a statement in support of copyright reform. This step comes after a year long discussion on how Creative Commons, which has traditionally defined itself as a neutral steward of the CC Licenses, should relate to ongoing discussions about reforming copyright in various countries around the world.
The statement issued by CC makes it clear that the success of the CC licenses should not be used as an argument that current copyright legislation is flexible enough since it enables voluntary licensing schemes like Creative Commons:
Creative Commons (CC) has enabled a new approach to copyright licensing over the last ten years. CC licenses facilitate novel social, educational, technological, and business practices, and support productive relationships around networked knowledge and culture.
We are dedicated stewards of our licenses and tools, and we educate users, institutions, and policymakers about the positive benefits of adopting CC licenses. Our licenses will always provide voluntary options for creators who wish to share their material on more open terms than current copyright systems allow. But the CC vision—universal access to research and education and full participation in culture—will not be realized through licensing alone.
Around the world, numerous national governments are reviewing or revising their copyright law. Some proposed revisions would broaden the scope of uses of copyrighted works permitted without the rightsholder’s permission. In response, it has been suggested that the very success of CC licenses means that copyright reform is unnecessary—that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.
Our experience has reinforced our belief that to ensure the maximum benefits to both culture and the economy in this digital age, the scope and shape of copyright law need to be reviewed. However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.
More background information on the statement can be found in this blogpost on the Creative Commons website.
The post below is cross posted from Kennisland (Kennisland is a COMMUNIA member).
Last month, the Office for the Harmonization of the Internal market (OHIM) and the European Patent Office (EPO) published a study on intellectual property rights intensive industries’ contribution to the economic performance and Employment in the European Union.
The study is modelled after a much criticized 2012 study published by the Department of Commerce and the US Patent and Trademark Office that attempted to measure the impact of IPR intensive industries on the US economy. Both studies come to similar conclusions, namely that IPR intensive industries make significant contributions to overall employment and GDP in the surveyed economies. For the European Union OHIM and EPO claim that:
IPR-intensive industries contribute 26% of employment and 39% of GDP in the EU. (page 6)
The study could be read to imply that without IPR one quarter of us would be out of work and that the EU would suddenly lose more than a third of its economy. Although it is fairly obvious that this is rather unrealistic, it did not prevent EU Commissioner (and noted copyright hawk) Michel Barnier from jumping on the opportunity to express once more how important he thinks that IP rights are:
“I am convinced that intellectual property rights play a hugely important role in stimulating innovation and creativity, and I welcome the publication of this study which confirms that the promotion of IPR is a matter of growth and jobs. It will help us to further underpin our evidence-based policy making.”
Unfortunately, this particular study has almost nothing to do with evidence-based policy making. On the contrary, the study represents one of the more brazen attempts to mislead the public (and policy makers) by throwing lots of data around and calling that evidence. Continue reading
Last week the Lisbon Council published a new Policy Brief on Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework. In the policy brief Ian Hargreaves and Bernt Hugenholtz draw up an agenda for copyright reform in the European Union by proposing a menu of policy options that could be implemented relatively quickly.
Hugenholtz and Hargreaves start their policy brief by looking at the current situation in Europe, and they do not like what they see: Not only do they consider Europe’s copyright framework to be out of touch with an economy that is shaped more and more by the impact of digital technologies, they are also skeptical about what currently passes for copyright reform in the EU:
In December 2012, the European Commission vowed “to ensure that copyright stays fit for purpose in this new digital context” after a key orientation debate convened by President Barroso. […] As practical steps, the Commission offered two parallel tracks of action. The first, already underway, is a “stakeholder dialogue” to address six issues […]. A second track of work is to arise from a series of market studies, impact assessment and legal drafting work “with a view to a decision in 2014 whether to table legislative reform proposals.”
How does this emerging European approach to reform look in a global context? The answer is it looks rather cautious, given the continued pace of technological change and the increasing indications that other countries are ready to pursue more rapid and more radical reform. History also suggests that Europe will struggle to achieve the political momentum needed to deliver even the modest and piecemeal change of the type currently under discussion.
We have already pointed out the flaws of the Licenses for Europe approach here, so we could not agree more. While the Commission directs critics of the stakeholder dialogue to the parallel review of the EU legal framework that the Commission is currently undertaking, there is very little reason to believe that this will result in any substantial reform agenda. In this situation Hugenholtz and Hargreaves see an urgent need for reform that is both effective and can be implemented within the existing European and international frameworks: Continue reading
COMMUNIA, along with several other representatives from the research sector, has withdrawn from the Licences for Europe dialogue on text and data mining due to concerns about the scope, composition and transparency of the process.
A letter of withdrawal has been sent to the Commissioners involved in Licenses for Europe explaining the reason that these stakeholders can no longer participate in the dialogue and the wish to instigate a broader dialogue around creating the conditions to realise the full potential of text and data mining for innovation in Europe:
We welcomed the orientation debate by the Commission in December 2012 and the subsequent commitment to adapt the copyright framework to the digital age. We believe that any meaningful engagement on the legal framework within which data driven innovation exists must, as a point of centrality, addressthe issue of limitations and exceptions. Having placed licensing as the central pillar of the discussion, the Licences for Europe Working Group has not made this focused evaluation possible.
Instead, the dialogue on limitations and exceptions is only taking place through the refracted lens of licensing. This incorrectly presupposes that additional relicensing of already licensed content(i.e. double licensing) – and by implication also licensing of the open internet – is the solution to the rapid adoption of TDM technology.
This approach also undermines the considerable work that has been done in Europe to increase the amount of Open Access content available and encourage its exploitation. We are concerned, therefore, that our participation in a discussion that focuses primarily on proprietary licenses could be used to imply that our sectors accept the notion of double licensing of as a solution. It is not. We firmly believe that the right to read is the rightto mine.
Furthermore, we would point to the urgent need to be competitive with the United States and the high‐tech economies in Japan and South Korea, where legal barriers to TDM are far lower precisely because of the existence of copyright limitations and exceptions there.
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 is slowly progressing through the legislative process in Brussels. As part of this no less then five committees of the European Parliament (Legal Affairs, Culture and Education, Industry, Research and Energy, Internal Market and Consumer Protection and International Trade) are in the process of forming their opinion on the proposal.
At this stage the draft opinions written by the rapporteurs for the four non-leading committees have been published. These opinions take the form of amendments proposed to the text of the directive (sometimes these are accompanied by short justifications).
In our policy paper from January we identified two main issues with the proposed directive: The first one concerns the transparency of repertoire information that has to be provided by collective management organisations and the second concerns the relation between collective management and open content licenses. In our analysis the proposed directive fails to sufficiently address these two issues.
We are happy to see that among the four published opinions the draft opinion of the Committee on Culture and Education authored by Helga Trüpel shares the concerns voiced in our policy paper. In the introduction of the document she writes:
The Rapporteur would like to stress that rightholders should have the possibility to make their works available under an open content license of their choice, for instance under Creative Commons, without necessarily opting out from the collective management system.
Furthermore, the Rapporteur would like to give even more flexibility to rightholders in the management of the rights. CMOs should provide accurate repertory information, in particular for works falling into the Public Domain. CMOs should ensure that the information in respect of the works whose term of protection terminates is accurate and regularly updated, in order to exempt such works from licensing and avoid claims to be enforced by CMOs in that regard.
In the following we take a closer look at the relevant amendments contained in the draft opinion of the Committee on Culture and Education: