For those of us looking forward to copyright rules that enable European cultural heritage institutions to provide online access to their collections, two important things happened last week: on Wednesday 29th October, the Orphan Works directive (OW directive) came into force and on Saturday 1st November, the new European Commission headed by Jean-Claude Juncker assumed office.
The first event marks the failure of the existing system, while the second one is reason to give us hope for a more meaningful modernisation of the European copyright system.
The fact that the current system does not take into account the needs of cultural heritage institutions is painfully illustrated by the Orphan Works directive. After years of legislative wrangling, Europe came up with a ‘solution’ for the problem of orphan works that requires cultural heritage institutions wanting to make orphan works available to undertake complicated searches for rights holders, before they are allowed to publish them. In most cases, the resources required for such searches are completely out of balance with the cultural and economic value of the work. This means that the Orphan Works directive may be a useful tool for making small numbers of high profile works available, but not as an enabler of mass digitisation projects.
The fact that the OW directive ended up as a crippled tool that fails to address the problem it was designed to answer (enabling mass digitisation of collections), is the result of a number factors: strong pressure from rights holders and their representatives to preserve the underlying principles of copyright even in a situation where they do more good than harm; the lack of coordinated advocacy efforts from cultural heritage institutions at the European Level; and a weak European Commission that was split on copyright.
With regards to the last point there is reason to hope that the situation is changing. The Juncker Commission that came into office on the first of November has made the modernisation of copyright one of its top priorities. In his mission letters to the Commissioners in charge of a connected Digital Single Market, Juncker made it clear that he expects his team to come up with ‘ambitious legislative steps’ towards ‘modernising copyright rules in the light of the ongoing digital revolution’ within the next six months.
In other words, the time to start fighting for copyright rules that enable cultural heritage institutions to properly function online is now! Continue reading
In 2013 the European Union enacted Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (PSI). The 2013 directive is an important pillar of the European Union’s open data strategy. It establishes the general principle that public sector bodies’ available information shall be reusable in accordance with a number of conditions, such as open formats, terms and conditions. Member States are asked to transpose the new rules into domestic law by 18 July 2015, i.e. about nine months from now. One of the major new features of the PSI directive is the inclusion in its scope of libraries (including university libraries), museums and archives. However, if Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions.
The directive attempts for the first time to define a general framework for sharing cultural heritage information all around Europe. Under the amended directive, libraries, museums and archives are now asked to make parts of their collections available for reuse. In particular, documents in the Public Domain (either because never protected or because the protection expired) are under the general re-use rule of Art. 3(1), while documents in which libraries, museums and archives hold intellectual property rights are under the derogatory rule of Art. 3(2): only when institutions allow re-use are they under the obligation to ensure that the general re-use conditions are respected. Accordingly, the re-use requirements of the directive only apply to works that are not covered by third-party intellectual property rights.
While laudable in principle, the inclusion of cultural heritage institutions in the scope of the directive raises a number of questions related to how Member States should implement the new PSI directive. If Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions. In order for the directive to meet its overall objective, i.e. to contribute to opening up the resources held by Europe’s cultural heritage institutions, three main recommendations for member states can be formulated:
- Member States should implement the Directive in line with the principles established by Article 3 and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive.
- Member States must not implement the Directive in such a way that encourages or requires institutions to charge for the reuse of works that they make available for reuse. The decision to charge for reuse must be up to the individual institutions. If this is not the case the Directive will limit access and reuse of the public domain.
- For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions, Member States should encourage the use of Open Definition-compliant licenses, such as the Creative Commons licenses or the Creative Commons Zero mechanism. This applies in particular to metadata produced by cultural heritage institutions, in the limited cases where these metadata can attract copyright (such as long form descriptions of cultural heritage objects).
For a deeper analysis of these issues see the full policy paper on the re-use of public sector information in cultural heritage institutions.
Two weeks ago the lower chamber of the Spanish parliament approved a number of changes to Spain’s Intellectual Property Law that directly threaten the ability of Spanish internet users to contribute to the commons. The law introduces a number of modifications to copyright law that expand the scope of exclusive rights over areas that were previously outside of the exclusive rights of copyright holders at the expense of users rights and the public domain.
The main reason for this law seems to be the desire of Spanish newspaper publishers to get a legally guaranteed income stream from news aggregation sites. What is happening in Spain is a modification of the (largely failed) attempt by German news publishers to make news aggregators (such as Google News) pay for using small parts of news articles that they link to.
Compared to the German attempt, the Spanish approach is more elaborate, and more dangerous. While the German legislators simply created an ancillary right for press publishers and left it up to the publishers whether and how to enforce, waive or license the right, the Spanish law (English translation of the relevant bits here) approaches it from the user side of the equation:
Here, the law creates a right for ‘electronic content aggregation providers’ to use ‘non-significant fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly updated’ without the permission of the rights holder. However such uses require payment of a ‘fair remuneration’ to the rights holder (via a collecting society). This is a right that content providers already have and can choose to license or waive assuming the non-significant fragments are copyrightable and absent an applicable exception or limitation. What this new legislation does is eliminate the ability of providers to choose how to exercise this right, and impose a mandatory royalty on reusers even for content that has been made available under a public license such as Creative Commons or that is otherwise available under an exception to copyright or in the public domain. Continue reading
Last week the European Commission published its ‘Report on the responses to the Public Consultation on the Review of the EU Copyright Rules‘. This report summarizes the more than 11.000 responses that the Commission had received in reaction to the copyright consultation held between December 2013 and March of this year. While it is clear that a 100-page document cannot do justice to all of the responses (our own response measured in at 24 pages), the report is informative in a number of ways.
Maybe the most striking (although unsurprising) insight that can be gained from reading the report is that stakeholders are completely divided in their perception of how well EU copyright law meets the requirements of the digital environment: Citizens and institutional users think this is not the case while authors and other rightholders are convinced it does. Over at governance across borders Leonhard Dobusch has done an excellent job at illustrating this fact:
Last week the European Commision published Guidelines on recommended standard licences, datasets and charging for the re-use of documents. These Guidelines are intended to help member states with the implementation of the amended Public Sector Information directive that was adopted last year. With these guidelines the Commission hopes to provide ‘reference material for all institutions in all EU countries, in order to align their practices and make them more transparent and predictable for potential re-users’.
The guidelines put a lot of emphasis on the legal aspects of PSI. As part of this the Commission highlights the fact that not all documents need to be licensed, especially those that are in the Public Domain:
A simple notice (e.g. the Creative Commons public domain mark) clearly indicating legal status is specifically recommended for documents in the public domain (e.g. where IPR protection has expired or in jurisdictions where official documents are exempt from copyright protection by law).
In addition to this important clarification the Commission also provides clear recommendations for the use of open licenses:
Several licences that comply with the principles of ‘openness’ described by the Open Knowledge Foundation to promote unrestricted re-use of online content, are available on the web. They have been translated into many languages, centrally updated and already used extensively worldwide. Open standard licences, for example the most recent Creative Commons (CC) licences (version 4.0), could allow the re-use of PSI without the need to develop and update custom-made licences at national or sub-national level. Of these, the CC0 public domain dedication is of particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility for re-users and reduces the complications associated with handling numerous licences, with possibly conflicting provisions. If the CC0 public domain dedication cannot be used, public sector bodies are encouraged to use open standard licences appropriate to a member state’s own national intellectual property and contract law and that comply with the recommended licensing provisions set out below.
Earlier this week the IPKat leaked what appears to be an internal draft of the European Commission’s white paper on copyright policy reform (“A copyright policy for Creativity and Innovation in the European Union”). Once finalized this white paper is supposed to sum up the current Commission’s position on making European copyright policy fit for the digital environment. As such the white paper will build on work that has been undertaken during the last couple of years, which included the Licenses for Europe stakeholder dialogue, a number of studies commissioned by the commission and a public consultation on a review of the European copyright rules that generated more than 11 thousand responses.
The white paper has been keenly awaited by anyone engaged in discussions about the future of copyright in the EU. Unfortunately, the document – at least in the form of the leaked internal draft – is a massive disappointment for anyone hoping for a serious review of copyright in the EU. This white paper clearly shows that at the end of one and half years of discussion those in the Commission who do not see a need for reform have managed to maintain their position. The white paper makes almost no mention of a need for legislative reform at the European level and instead presents a disjoined array of measures mainly consisting of recommendations for more harmonization between the member states and some extra guidance from the Commission to the member states.
After having been told by their own studies that a new balance between the rights of creators and the rights of users is both necessary and possible, and after having received literally thousands of responses to the consultation arguing in favor of more user rights, the commission has come full circle back to its initial position: At the core of the white paper lies the notion that copyright is not broken and that most problems created by the current copyright rules can be fixed through the reliance on licensing, minor, negligible changes to existing law, and reiteration of enforcement mechanisms. Coincidentally, this is perfectly in line with the position advocated by traditional publishers and other rights holder representatives throughout the entire process.
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.