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
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
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.
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
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.
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
As part of its effort to build a digital single market and to modernise the European Copyright rules the European Commision is currently running an online consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy‘. As the name suggests this consultation bundles an enormous amount of issues into a single consultation. This monster consultation consisting of at least 115 questions depending on which type of user you are, hides a number of questions that can have huge impact on the shape of the future EU copyright framework and determine how we share and collaborate online.
These questions relate to the regulatory framework for online platforms, a term that is defined so broadly by the consultation that covers wide swaths of the Internet:
“Online platform” refers to an undertaking operating in two (or multi)-sided markets, which uses the Internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups.
In other words, the Commission asks questions about platforms and services like SoundCloud, Wikipedia, YouTube, Flickr, Facebook, Snapchat, Instagram, Twitter and many others, that have become central in how European citizens communicate with each other and express themselves. Changing the regulatory framework that applies to these platforms will have far reaching consequences for all of us. In this light it is very disturbing that these questions are hidden in a consultation that appears to be designed to discourage responses from citizens. Continue reading
On Tuesday the European Commission published a roadmap outlining the next steps in their effort to modernize the EU copyright rules. The (not entirely unexpected) main takeaway from this roadmap is that the Commission is retreating from its earlier announcement that it will present a comprehensive legislative proposal for copyright modernisation before the end of 2015.
Instead the Commission will address the modernisation of copyright via a series of interventions, starting in December with a “Communication on copyright which will provide a comprehensive overview of the main issues to be tackled in order to ensure the proper functioning of the copyright marketplace, in particular in the online environment and in a cross-border context”. This communication will come together with two legislative proposals, the first dealing with the (long overdue) implementation of the Marrakesh Treaty, and the other about cross-border portability of content. In a second phase – currently promised for ‘Spring 2016’ – the Commission plans to present additional measures, including legislative updates of the InfoSoc directive.
Announcements about announcements
The rest of the roadmap consists of a fairly unstructured discussion of what might possibly be contained in the December consultation, and an extensive description of the available evidence, including the highly contentious outcomes of the 2013/2014 copyright consultation and the ongoing consultations on online platforms and the SatCab directive. But at its core the roadmap does not constitute much more than an announcement of the December communication, which in turn will be an announcement of legislative and non-legislative interventions.
Fortunately, we can ignore the rather vague roadmap and jump straight to a leaked draft of the actual communication published on Thursday by the IPkat. The draft appears to be fairly recent and is scheduled to be adopted by the Commission on the 9th of December. It is also a much more coherent document that provides us with a relatively clear overview of the Commission’s ideas of how ‘a modern, more European copyright framework’ should look. Continue reading
Today, Europeana published an open letter to Commissioner Oettinger in which the directors of 29 major European cultural heritage institutions demand a reform of the European copyright rules that would allow their institutions to make more of their collections available online. This letter comes in response to the Commission’s intention to review parts of the existing copyright rules to make sure that copyright functions within the Digital Single Market.
In their letter (which can be signed by additional institutions here), the directors argue that their institutions are hindered by the fact that the existing exceptions and limitations benefitting their organisations have not evolved to reflect the ways that citizens access and engage with cultural content:
Europe’s public cultural heritage institutions are key to influencing and shaping our lives with unrivalled access to information, culture and our shared history. They promote knowledge, education, research and encourage the creation of new culture.
Ways to share and engage with cultural content have been transformed in a digital age, but limitations in current European copyright rules restrict that full potential. As a result, our institutions contain large collections established and cared for using public funds but they cannot be made easily available to the public online.
Over the last month the German publishers who are pushing for ancillary copyright for press publishers on the EU level have encountered two more setbacks in their attempts to turn the ancillary rights that they have in Germany into actual revenue.
Freedom to link upheld
First the Bundeskartellamt (the German competition authority) rejected claims made by the publishers that Google has acted in violation of competition rules by removing from its search results text snippets from publishers who have not granted them a royalty-free license. Google had started removing such snippets after the introduction of the ancillary copyright for press publishers to avoid having to pay for displaying the snippets. As a result, the publishers soon discovered that not having their stories findable via Google News cost them substantial amounts of visitors—and thus revenue. Because of this realization, the majority of publishers grant royalty-free licenses to Google to ensure that their content is included in Google News.
In their complaint to the Bundeskartellamt the publishers argued that Google was abusing its dominant position in the search and news aggregation markets if it would not display the snippets unless it was granted a royalty-free license. The Bundeskartellamt flat-out rejected this argument, stating that if an online service does not want to acquire a license for the display of snippets—and hence only display search results without a snipped portion of the underlying text—it is perfectly free to do so. According to the competition authority there is nothing in antitrust law that prevents companies from doing this, even if they hold the dominant market position. Continue reading