Last week we saw another Advocate General (AG) opinion published that deals with the position of cultural heritage institutions within the EU copyright framework. Hot on the heels of AG Szpunar’s opinion on e-lending, AG Wathelet weighed in on the question of whether the French system for making out-of-print books available online is aligned with the EU copyright directive. His opinion in the case C‑301/15 Soulier en Doke is that the French scheme, which assigns the digital reproduction and performance rights for out-of-print books to a collecting society that then licenses them, is incompatible with the InfoSoc directive. Such an opinion effectively undermines the idea that Extended Collective Licensing (ECL) can serve as a solution for the copyright problems created by mass digitisation of cultural heritage collections.
This opinion comes at a crucial time when the EU Commission is finalising its copyright reform proposal, which is scheduled to be published in September. As part of this proposal the Commission has promised to propose measures that will “make it easier to digitise out-of-commerce works and make them available”. While the Commission has so far been silent on the mechanism that it would propose to achieve this goal, it is generally understood that there are two different approaches on the table:
The Death of Extended Collective Licensing?
While AG Wathelet’s opinion only concerns the specific question referred to the CJEU by the French court, it has much wider-ranging consequences. Should the CJEU rule in agreement with the opinion (note that a decision is not expected until after the September publication of the Commission’s proposal), then Extended Collective Licensing is effectively dead as a solution for the copyright problems created by mass digitisation. In this sense, this opinion supports the position expressed by cultural heritage institutions that the only real solution for their issues is an update of the relevant exceptions in the InfoSoc directive. Continue reading
With the Best Case Scenarios for Copyright series we have proved that copyright has a brighter side for users. For satire and critique, in teaching, research and journalism, even while preserving memories of beautiful spaces – copyright exceptions help artists, audiences, students, and tourists alike benefit from access to culture and education.
What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.
So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.
We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:
The right to quote is a pivotal element of science, study, critique, and art. By evoking somebody else’s words and creations we are able to enter into an intellectual dialog that is a foundation of our culture. Quotations substantiate scientific discourse and discovery of new knowledge. They are used widely in memes that have become a signature feature of social media.
Within the Best Case Scenarios for Copyright series, we present Finland as the best example for quotations. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Quotations in Finland legal study. EU, it’s time to #fixcopyright!
What is a quotation exception?
- A quotation exception to copyright refers to citations or other uses of protected works as a way to support intellectual creation.
- The exception is justified by the freedom of intellectual creation.
One of the more remarkable aspects of the Commission’s communication “Towards a modern, more European copyright framework” from last december was how much attention it paid to issues faced by Cultural Heritage Institutions. In the communication the Commission announced no less than four different interventions aimed at modernizing those aspects of the copyright framework that govern how Libraries, Archives and Museums can operate in the digital environment. These include the introduction of a new exception for Text and Data mining, updates to the exception for the preservation and research and private copy exceptions and the ambition to make ‘it easier to digitise out-of-commerce works and make them available‘.
As we have argued here before, Europe’s cultural heritage institutions deserve copyright rules that allow them to fully embrace the opportunities offered by the digital environment. And as we have noted before we are not alone with this opinion. Both the European Parliament (in the form of the Reda report) and prominent cultural heritage institutions from across Europe (in this open letter) have made the point the Libraries, Museums and Archives should benefit from exceptions and limitations that also apply online.
While it is unclear at this point how the commission intends to make good on its announcements from December there is some legitimate concern that heeding to pressure from publishers and other rightsholders the Commission will propose only minimal updates to the existing system and instead suggest ‘solutions’ based on (extended collective) licensing.
In this situation LIBER, IFLA, EBLIDA, Europeana and Libraries2020 have joined forces and have issued a joint statement with a list of recommendations to adapt Exceptions to Digital and Cross-border Environments. In addition to arguing for updated exceptions the five organisations also point out that currently the rights granted by exceptions and limitations are routinely overridden by contracts and/or technical measures:
The library and broader cultural heritage community supports a balanced copyright framework that not only recognises citizens’ right to information, but also respects authors’ rights to fair remuneration for their work. However, libraries and audio-visual collections in particular are witnessing first-hand how fragmented implementation of exceptions under EU copyright legislation is an increasing barrier to cross-border access to content, preventing progress in particular for students and pan-European research projects. To compound this, in all but four European Member States (Belgium, Ireland, Portugal and the United Kingdom), contract terms can override existing copyright exceptions, which further undermines the goal of a coherent European copyright framework. […]
The education exception benefits teachers, students, and researchers who need access to all types of educational and informational resources that are often protected by copyright. This exception balances the right to education with the rights of authors. Maintaining the balance is never easy, and some issues still await their interpretation in Estonia. Still, Estonia enjoys the widest education exception provisions among all EU member states.
Within the Best Case Scenarios for Copyright series, we present Estonia as one of the best examples for education. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Education in Estonia legal study. EU, it’s time to #fixcopyright!
What is an education exception?
- An education exception to copyright relates to cases where protected works of all types are used for educational purposes or scientific research, both offline and online.
- The exception is justified by the public interest of access to education.
While the European Commission is still busy determining what changes to propose to the EU copyright framework this fall, some stakeholders have decided that instead of waiting for an update of the EU copyright rules (that is at least four years away), they are better of attempting to expand the existing rules. Last year the Dutch Association of Public Libraries (VOB) started a legal procedure against the Dutch organization tasked with distributing to authors the remuneration that libraries pay for lending out books (Stichting Leenrecht).
In addition to paper books, the VOB wants to lend out e-books, but is concerned that the EU directive on the rental and lending rights of books does not cover digital lending. Instead of waiting for an update to the directive, the VOB decided to go to court to clarify the issue. The Dutch Court subsequently referred the case to the the Court of Justice of the European Union (CJEU) and asked it to answer the question if digital lending is covered by the Rental and Lending Rights Directive.
While the court’s decisions in the VOB vs Leenrecht case is not expected until late this year, Advocate General (AG) Maciej Szpunar delivered his opinion last Thursday. In its opinion AG Szpunar advises the CJEU to rule that art 1(1) of the Rental and Lending Rights Directive must be interpreted to include the right to lend electronic books included in a library’s own collection. While AG opinions generally offer a good indication of how the Court will decide, they have no direct effect and it is important to remember that the court can also come to a different conclusion than the AG. This of course is exactly the outcome that the VOB had hoped for and as such this AG opinion represents an important step in the fight of libraries to be allowed to adopt their activities to the digital environment. Continue reading
The European Commission’s public consultation on a neighbouring right for publishers and on the freedom of panorama closed on Wednesday. While the Commission has yet to publish the results of the consultation, Copyright 4 Creativity and Save the Link – who have both been providing tools that encouraged internet users to respond to the consultation – have published data on the responses that they have forwarded to the Commission.
The 2819 responses collected by Copyright 4 Creativity show a very clear picture. According to C4C, 96% of the respondents indicated that the introduction of new rights for publishers (either in the form of an ancillary copyright for press publishers or of a generic neighbouring right for all publishers) would have a strong negative impact on publishers, authors and other rightsholders, educators, researchers, online service providers and end users. This is a pretty resounding NO! to the misguided notion that the problems of the publishing sector can be solved by creating rights out of thin air.
Open Media, the organisation behind the Save the Link campaign, gathered more than 35.000 signatories (including 9937 from the EU) supporting the following statement:
a new ‘neighbouring right’ limited to [press] publishers and the creation of a new neighbouring right covering publishers in all sectors, will each have a strong negative impact on consumers, end-users, and EU citizens.
Now both C4C and Save the Link have both targeted internet users who are critical of an expansion of copyrights. It is therefore not really surprising that that these number show strong opposition to the introduction of new rights that provide publishers and other rights holders with more control over the internet. However, it is relatively hard to imagine that the other responses that the commission has received will change the overall picture of strong opposition to the idea of a neighbouring right for publishers.Continue reading
The parody exception cultivates the French tradition of satire. When the goal is to make people laugh, anybody can freely create a distinctively different mockery of a protected work. This encourages creativity and freedom of expression.
Within the Best Case Scenarios for Copyright series, we present France as the best example for parody. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Parody in France legal study. EU, it’s time to #fixcopyright!
What is a parody exception?
- Rooted in ancient Greek, the term “parody” includes works of mockery, as well as quoting or referencing an older work in a modern interpretation of it. In France, parody implies adapting or borrowing from a work with the intention of having fun.
- The exception is justified by freedom of expression.
Freedom of panorama is a fundamental element of European cultural heritage and visual history. Rooted in freedom of expression, it allows painters, photographers, filmmakers, journalists and tourists alike to document public spaces, create masterpieces of art and memories of beautiful places, and freely share it with others.
Within the Best Case Scenarios for Copyright series we present Portugal as the best example for freedom of panorama. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Freedom of Panorama in Portugal legal study. EU, it’s time to #fixcopyright!
Exception/Limitation: Freedom of Panorama
What is freedom of panorama?
- Derived from the German word Panoramafreiheit, freedom of panorama generally refers to the right to visually document works of architecture, sculptures, street art, or other copyrighted works, as long as they are permanently located in public spaces. In Portugal, the exception covers all sorts of documentation—not only photographs and video footage.
- The exception is justified by freedom of expression and public interest.
The copyright was originally meant to promote creativity and innovation, but instead it’s become outdated, overly complicated, and even threatening to some users. Fortunately there are still ways to fix copyright and the EU is in a unique position to do it. The European Commission should look into best examples of national-level solutions and apply them within the current reform. We present several best examples of exceptions and limitations that should benefit citizens in their access to culture and education across Europe.
Time to #fixcopyright and free the panorama across EU
EU, #fixcopyright and adopt the parody exception across Europe
Wide education exception is the best case scenario to #fixcopyright in EU
The right to think is the right to quote – #fixcopyright with wide quotations exception!
How to #fixcopyright with a great copyright limitation? A recipe for lawmakers
Reform – the dealmaker or the dealbreaker for citizens?
The current copyright system fails us on so many levels that we know the forthcoming EU copyright reform won’t fix it all. Given the pressure from creative industries to introduce new rights in order to protect their existing business models, the outlook is not very good. Instead of engaging in discussions and actions that would rebalance copyright, users and public interest organizations engage in battles against bad policy ideas.
It is time to tell the EU that while it plays with the elusive vision of the Digital Single Market by inventing how to tax linking, there are some good solutions that already work in member states. Exceptions and limitations to copyright, so dreaded by many rights holders, do not break the creative industry in Portugal and France or the educational systems of Estonia and Finland. They simply work! To the benefit of creators, artists, students and users, reinforcing creativity, freedom of expression and providing good balance of the interests of rights holders and citizens.