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.

Intellectual Property Rights do not equal Innovation and Creativity

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

Hugenholtz & Hargreaves on Modernising the European Copyright Framework

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.

Copyright reform?

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

EU Presidency proposes compromise on draft Directive on collective management of copyright

The 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 now awaiting first (and single) reading by the European Parliament (indicatively foreseen in November). According to the European ordinary legislative process (the Directive proposal is following the ordinary codecision procedure), the Parliament is asked for its opinion on the proposed legislation before the Council adopts it. In the framework of the inter-institutional dialogue, the Conciliation Committee of the Council of the European Union issued a compromise text (aka ‘Presidency Compromise’) aiming at reconciling the positions of the EP and of the Council.

The Compromise text was adopted in early April (to our knowledge, it has not been widely circulated but has been made available online by the Austrian Parliament). The adoption of this text at a rather early stage of the legislative procedure, suggests that a possibility of a conclusion at first reading exists. However, it does not take account of the draft reports released by the Parliamentary Committees a few weeks after. As we highlighted earlier, the opinion drafted by MEP Helga Trüpel for the CULT Committee shares some core arguments with Communia’s policy. The deadline for tabling amendments on the leading Committee’s report (JURI) is June 6th.

It is thus interesting to look more closely at the content of the Compromise text to have a better idea about what the Council would be ready to vote for at the present time of the procedure (more than the Parliament insofar as the guessing about the final parliamentary vote is very uncertain at this stage of the procedure), although new matters of discussion may arise during the amendment and ‘lobbying’ period. Continue reading

European parliament starts discussing the proposed Directive on collective management of copyright

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:

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