London Manifesto: Copyright has to be fair

“We are calling for fair copyright that is fit for purpose and will benefit every European citizen” – that is the main message of the newly published manifesto, drafted by the Libraries and Archives Copyright Alliance (LACA), convened by the British Chartered Institute for Library and Information Professionals (CILIP). The London Manifesto is one more voice in support of a progressive copyright reform, raised in the ongoing European debate on copyright.

The London Manifesto (PDF) defines, in ten points, reforms that are necessary in order to make copyright fair for all stakeholders. These include:

  • Harmonised exceptions: Harmonisation and uniform application of copyright exceptions across all EU member states so that they apply regardless of media or technology.
  • Open norm: The addition of a new “open norm”, an open-ended exception subject to the three-step test, to avoid the current situation where European creativity and research cannot immediately benefit from technological innovations because copyright legislation is slow to catch up.
  • Right to lend: An automatic “right to lend” for libraries, to include the right to lend all digital media, including transferring digital files for a limited period.
  • Right to mine: An automatic right to perform computer analysis of copyright works for libraries, archives or their users whenever they have lawful access to the content. This recognises that the right to read includes the right to mine.
  • Mass digitisation: An automatic right for libraries, archives and museums to mass digitise their commercially unavailable research collections, and give online access across the whole of the EU without liability to compensate rightholders.
  • Standardised terms of protection for copyright: Swift and complete harmonisation of copyright durations across all member states.

The manifesto has been signed by 30 libraries and library associations, research institutions and organisations, including Communia.

The concept of a copyright system fair to all is an important one, and points to the need of more than just a balance of copyright norms. Fairness needs to be secured for all stakeholders, including those who are not in a privileged position in the copyright debate. We treat the manifesto as one more voice that opposes growing pressure from the cultural industry lobbyists, who believe that copyright reform should only serve to strengthen protection and increase financial gains for copyright owners.

COMMUNIA position paper on EU Digital Single Market

The aim of this position paper is to respond to the call made by European Commission to open public discussion on digital single market and its expected shape in the coming years.

We fully agree with President Juncker that we need to “break down national silos in copyright”. As was noted by President Juncker in his opening statement, one of the challenges standing in front of the Digitial Single Market is a modernisation of the  copyright rules in the light of the digital revolution and changed consumer behaviour. We fully support this position, which considers copyright a fundamental regulatory mechanism for a modern economy.

The current system of IP protection is not only over-complicated, but also unclear to all its stakeholders. Thus one of the goals of this modernisation should be a simplification of rules, and in particular a harmonisation across Member States and jurisdictions. Typically, harmonisation is mentioned with regard to territoriality and market fragmentation that affects commercial content. We want to point out that it is just as important to harmonise copyright rules that create freedoms for public institutions, certain uses beneficial to society (for example, educational and research uses) or for individual citizens.

These issues are often, wrongly, seen as of secondary importance, because of the fact that they are exceptions, functioning largely in non-market environments. Yet in the context of the Digital Single Market it is necessary to point out that there is also significant economic potential related to these user freedoms – for example in areas related to education, research or health care, not to mention SMEs and entrepreneurs. Proper copyright exceptions and limitations lead not only to greater user freedoms, but are also themselves significant added value. A broadly understood public domain is in this aspect similar to Public Sector Information, which is well understood in Europe to be a raw material, on which added value is created through re-use (provided that we provide adequate reimbursement to right holders where necessary and protect privacy and personal data).

Due to a lack of such harmonised exceptions across Europe, we not only miss out on potential economic and social gains. Different legal rules between Member States lead to uncertainty for anyone attempting to engage in cross border activities. Massive open online courses (MOOCs) are but one example of educational enterprises that could benefit from greater legal clarity in this regard.

For those reasons, we urge the Commission to expand and adapt current copyright exceptions and copyright limitations so that they serve public benefit in the digital, online environment. Furthermore, we ask that the Public Domain, a body of knowledge and heritage that can be freely used, is protected, strengthened and widened. We also believe that an open provision that ensures flexibility with regard to digital technologies and social practices should be introduced to support innovative business and civic developments. The following pillars could be the base for Digital Single Market reforms:

1. HARMONISATION OF EXCEPTIONS AND LIMITATIONS. Europe should harmonise exceptions and limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to ongoing technological transformations. The limited list of Exceptions and Limitations established by the Copyright Directive restricts the possibilities to adjust the copyright system to the rapid pace of technological innovation that shapes how we interact with copyright-protected works. This not only limits the abilities of citizens to gain access to our shared culture and knowledge but also imposes restrictions for innovative business models, and as a result, economic growth. In the absence of open-ended exceptions such as a fair use clause it is imperative that exceptions and limitations can be adjusted to the needs of society at large and innovative economic actors in particular.

2. TERM OF PROTECTION. The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility to our shared knowledge and culture. There is no evidence that copyright protection that extends decades beyond the life of the author encourages the production of copyright protected works. Instead, there is compelling evidence that the requirement to obtain permission for works by authors that have long died is one of the biggest obstacles for providing universal access to our shared culture and knowledge.

3. REGISTRATION. In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only get moral rights protection. One of the unintended consequences of the near universal access to electronic publishing platforms is an increase in the amount of works that are awarded copyright protection even though their authors do not require or desire such protection. This extension of protection threatens to undermine the value and effectiveness of protection for works where copyright protection is necessary and desired.

4. LEGAL UNCERTAINTY. As a prerequisite for unlocking the cultural, educational and economic potential of the public domain, identification of works in the public domain should be made easier and less resource-intensive by simplifying and harmonizing rules of copyright duration and territoriality. The rules for establishing the duration of the term of protection of individual works have become so complex that it is almost impossible to establish with certainty whether a work is protected by copyright (including all neighboring rights) or whether it is in the public domain. This complexity in the system makes it very difficult to automatically calculate the status of a work. Two factors have contributed to this situation: the divergence of legislation between the different Member States, and a large number of (national) exception clauses. This situation can only be remedied by intervention on the European level, preferably by simplifying the rules and harmonizing them across Europe. The work on public domain calculators has highlighted the incredible complexity of copyright term rules which makes it very difficult to determine the copyright status of individual works. This means that one of the biggest obstacles to positively identifying public domain works (and thus unlocking their cultural, educational and economic potential) lies in the cumbersome process of determining the term of copyright protection.

5. DIGITAL REPRODUCTIONS. Digital reproductions of works that are in the public domain must also belong to the public domain. Use of works in the public domain should not be limited by any means, either legal or technical. The Internet enables the widespread re-use of digital reproductions of works of authorship whose copyright protection has expired. The public domain status of these works means that there is no owner of the works who can impose restrictions on their re-use. At the same time the owners of the physical works (such as heritage institutions) often feel that they are entitled to control over digital reproductions as well and that they can impose restrictions on their re-use. However, digitization of public domain works does not create new rights over it: works that are in the public domain in analogue form continue to be in the public domain once they have been digitized.

6. PUBLIC FUNDING OF DIGITIZATION PROJECTS. Digitization projects that receive public funding must at the minimum ensure that all digitized content is publicly available online. Allowing for the free redistribution of digitized content should be considered since it is beneficial for the sustainability of the access to digitized cultural heritage. When public funding is used for digitization projects it needs to be assured that the public benefits from these efforts. At the minimum this means that digital versions need to be available online for consultation by the public that has paid for the digitization effort. Public funding bodies should prioritize digitization projects that will increase the amount of our shared and culture that is available to the public. Memory institutions that receive public funding should consider making available digitized collections with as little restrictions as possible. Free availability of collections which includes the free redistribution and re-use of the digital artifacts will result in wider availability and reduce the risks inherent to centralized storage.

We would like to express our true devotion to support the above mentioned recommendations.

Since the European Commission encourages also sharing of graphical and multimedia elements, we would also like to submit a set of thematic postcards. Each one combines a treasure of European cultural heritage with one of our policy recommendations. The postcards are available here.

Copyright 4 Creativity releases copyright manifesto

Today Copyright 4 Creativity (C4C), a coalition of 35 organisations from the NGO, library and technology sectors (including a number of COMMUNIA members) is launching a copyright manifesto. The copyright manifesto is intended as a contribution to the ongoing review of the European Union’s copyright rules. With the manifesto, Copyright 4 Creativity wants to stress the importance of a copyright system that can ‘effectively promote innovation, access and creativity’.

The manifesto starts by outlining what is wrong with the current EU copyright framework and how this is negatively affecting users, businesses, innovators and – as a result – the competitiveness of Europe’s economy. In doing so, the manifesto touches on many concerns shared by COMMUNIA, including the fact that the current term of copyright protection is much too long and undermines access to knowledge and culture.

Based on the analysis of the status quo the manifesto calls for a substantial reform of the copyright rules in the EU and argues that such a reform needs to address 4 main issues. According to C4C the EU needs to: Continue reading

Leading copyright scholars: full unification of EU copyright now!

As part of the public consultation on a review of the EU copyright rules the EU commission included two questions related to a single EU copyright title. These questions refer to the fact that in the current situation all member states of the EU have their own copyright laws. These laws need to meet the requirements established by an increasing number of EU directives (such as the InfoSoc directive, the Copyright term directive, and the orphan work directive). This has resulted in a certain level of harmonization, but this does not take away the fact that in the EU the a copyrighted work is protected by 28 different copyright laws that apply to 28 different jurisdictions.

Compared to this situation a single European title would mean having one single EU copyright law that confers EU-wide rights to rights holders and establishes EU-wide exceptions and limitations. In our answer to the public consultation we urged the EU commission to start working on a single European copyright title:

Question 78: Should the EU pursue the establishment of a single EU Copyright Title, as a means of establishing a consistent framework for rights and exceptions to copyright across the EU, as well as a single framework for enforcement?

The establishment of a single EU Copyright Title would be a positive step forward for both rightholders and users of copyrighted content. It would help to harmonize the currently disjointed limitations and exceptions and copyright duration schemes across the EU.

Question 79: Should this be the next step in the development of copyright in the EU? Does the current level of difference among the Member State legislation mean that this is a longer term project?

Pursuing the establishment of a single EU Copyright Title should be the next step. Work on this should begin immediately.

One of the other organisations that also advocated taking steps towards a single EU copyright title is the European Copyright Society (ECS). In its response the ECS (which is made up of leading European copyright scholars and academics) argued for for the introduction of Union-wide copyright title and for the simultaneous abolishment of national copyright titles.

Just before the holidays the European Copyright Society reaffirmed this position by sending a letter to Commissioner Oettinger in which it once again advocates for a unification of EU copyright law. In their letter the members of the society briefly affirm the need to modernize the existing EU copyright rules (dryly noting that they “trust that [the European Copyright] Society’s opinions will be taken into account”) before they urge the Commissioner to go a step further: Continue reading

Europe’s cultural heritage institutions deserve better

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

New policy paper on the re-use of public sector information in cultural heritage institutions

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:

  1. 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.
  2. 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.
  3. 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.

Leaked draft of Commission copyright white paper based on flawed assumptions

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.

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Make your voice heard to fix copyright in the EU!

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.

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Commission announces public consultation on the review of EU copyright rules

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

Responding to the European Commission consultation on PSI: Minimizing restrictions maximizes re-use

The Communia Association has responded to the European Commission’s consultation on recommended standard licenses, datasets and charging for the re-use of public sector information (PSI). The Commission asked for comments on these issues in light of the adoption of the new Directive on re-use of public sector information. See our response here. The Directive 1) brings libraries, museums, and archives under the scope of the Directive, 2) provides a positive re-use right to public documents, 3) limits acceptable charging to only marginal costs of reproduction, provision, and dissemination, and 4) reiterates the position that documents can be made available for re-use under open standards and using machine readable formats. Communia recognizes the high value of PSI not only for innovation and transparency, but also for scientific, educational and cultural benefit for the entire society.

We have been providing feedback to the Commission during this process. We last wrote about the Directive in June, and questioned why the Commission had not yet clarified what should be considered a “standard license” for re-use (Article 8). The dangers of license proliferation–which potentially leads to incompatible PSI–is still present. But it’s positive that the Commission is using this consultation to ask specific questions regarding legal aspects of re-use.

Part 3 of the questionnaire deals with licensing issues. One question asks what should be the default option for communicating re-use rights. We believe that there should be no conditions attached to the re-use of public sector information. The best case scenario would be for public sector information to be in the public domain. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into as close as possible to the public domain to ensure unrestricted re-use.

Communia calls on the Commission and Member States to ensure that core datasets are released for maximum re-use, either by exempting PSI from copyright and sui generis database rights altogether, or by requiring that these rights are waived under the CC0 Public Domain Dedication.

Another question first states that the Commission prefers the least restrictive re-use regime possible, and asks respondents to choose which condition(s) would be aligned with this goal. Again, we think that every condition would be deemed restrictive, since the best case scenario would be for PSI to be removed from the purview of copyright protection through law or complete dedication of the PSI to the public domain using CC0.

Some conditions would be particularly detrimental to interoperability of PSI. An obligation not to distort the original meaning or message of public sector data should be deemed unacceptable. Such an obligation destroys compatibility with standard public licenses that uniformly do not contain such a condition. The UK’s Open Government License has already removed this problematic provision when it upgraded from OGL 1.0 to OGL 2.0. Any condition that attempts to discriminate based on the type of use or user, or imposes additional requirements on the re-user, should be avoided. Examples include: 1) fees for cost recovery, 2) prohibitions on commercial use, modifications, distortion, or redistribution, and 3) unreasonable attribution requirements. Copyleft conditions can threaten interoperability with existing “attribution-only” standard licenses.

In addition to mentioning CC licensing as a common solution, the questionnaire notes, “several Member States have developed national licenses for re-use of public sector data. In parallel, public sector bodies at all levels sometimes resort to homegrown licensing conditions.” In order to achieve the goals of the Directive and “to promote interoperable conditions for crossborder re-use,” the Commission should consider options that minimize incompatibilities between pools of PSI, which in turn maximize re-use. As far as we are concerned that means that governments should be actively discouraged from developing their own licenses. They should consider removing copyright protection for PSI by amending copyright and/or PSI law or waive copyright and related rights using CC0.

Part 4 of the questionnaire addresses charging options for PSI re-use. While the Communia Association did not provide an opinion on this matter, Federico Morando, Raimondo Iemma, and Simone Basso have provided an in-depth analysis on the Internet Policy Review website.