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
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:
In January Communia was invited to participate in the European Commission’s ‘Licenses for Europe‘ stakeholder dialogue. This stakeholder dialogue is one part of the Commission’s agenda to ‘modernise copyright in the digital economy‘. Communia participated in Working Group 4 on Text and Data Mining for Scientific Research Purposes.
Unfortunately the first meeting of this working group which took place on the 4th of February in Brussels did not live up to the expectations raised by the Commission’s earlier announcement. It quickly became evident that the stakeholder dialogue is based on a flawed assumption (‘more licensing will bring copyright in line with the requirements of the digital economy’) and that the process was designed to prevent a serious discussion about how to unlock the potential of scientific text and data mining.
Given this the participating organisations representing academia, researcher community and civil society (including Communia), have decided to make these concerns public in the form of an open letter to the Commissioners Barnier, Geoghegan-Quinn, Kroes and Vassiliou (re-published at the end of this post). The letter which was published today raises a number of concerns that need to be addressed before the stakeholder dialogue on text and data mining can continue.
Chief among these concerns is the belief that in order to have an open discussion about the reform, possible solutions cannot be limited to licensing. From our perspective text and data mining cannot be solved by re-licensing texts to libraries, researchers or the public. What Europe needs is clarity that text and data mining works that are lawfully available does not require permission by rights holders. A stakeholder dialogue that simply declares this position off limits can hardly be called a dialogue at all. In the case of Public Domain content, there is a risk that a focus upon licensing will lead to unlawful re-licensing of content that is out of copyright.
In addition the whole process needs to become more transparent and needs to include all stakeholders (including academics and the Commissions own Research and Innovation Directorate General, which is currently being limited to attend as an observer).
The open letter has been published in the hope of getting the Commission to change the terms under which the stakeholder dialogue is being conducted. Should this not be the case, Communia and the other organisations that have signed the letter are very likely to step away from the dialogue. As the list of supporting signatories shows this is supported by a growing number of academics who are rightfully concerned about the prospects for conducting data driven research in Europe. Continue reading
Today the COMMUNIA International Association presents its sixth policy paper. The paper is a reaction to 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.
The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.
Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This proposed directive intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and public access to knowledge should be a priority of policy-making.
The policy paper draws attention to two issues where the proposal should be improved. The first one concerns the transparency of repertoire information. We consider the proposed measures not sufficient and suggest an amendment to require that CMOs must provide this information more widely. The second issue concerns the relation between collective management and open content licenses. In our opinion, the proposed directive fails to address the existing incompatibilities between the collective management of rights and open content licensing.
The full COMMUNIA Association reaction on the Directive proposal on Collective Management of Copyright can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.
COMMUNIA International Association on the Public Domain is publishing a policy paper entitled Position on EC Horizon 2020 Open Access policy before the vote taking place at the European Parliament in November 2012. The policy paper is available as a PDF and reproduced below:
The work of Communia is based on a set of 14 policy recommendations which aim to support policies that enable a rich and accessible Public Domain. In light of these recommendations, Communia welcomes the development of a strong Open Access (OA) policy at the European level around the following main ideas:
Notwithstanding the need to support OA policies, access to copyright protected material for education and research purposes must be improved by strengthening existing exceptions and limitations to copyright, and broadening these exceptions to cover uses outside of formal educational and research institutions.
The UK Government has published a Government Policy Statement based on the recent Consultation on modernising Copyright held in the UK. The document summarizes the findings of the consultation and outlines policy actions that the UK government intends to take. The policy statement (pdf) covers three fields where the government intends to legislate: ‘Improvements to copyright licensing’, ‘Extended Collective Licensing’ and ‘Codes of Conduct for collecting societies’:
The Government, following the Hargreaves Review, made a number of proposals to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.
These measures bring some currently unlawful or unlicensed activities within the scope of legal activity, allowing licensing to occur and thus benefiting right holders and licensees alike. They have potential to cut costs and improve compliance with copyright law, and to improve confidence in the UK copyright system.(p.7)
In the light of the discussion about the ‘Orphan works’ directive the first two of these should be of interest beyond the borders of the Island Kingdom. Continue reading
The compromise text of the proposed orphan works directive is finally out. If nothing unexpected happens, this text should be what gets adopted later this year, what needs to be transposed into national legislation within 2 years from then, and what cultural heritage institutions that are confronted with hostage works need to deal with for the next decade or two. This text also represents the first finished legislative project that is part of the European Commissions Digital Agenda, which attempts to make Europe ‘fit for the digital age’.
Given all of the above, it is unfortunate that the text also is a legislative train wreck that fails to make any substantial improvements to the situation in which memory institutions engaged in digitization efforts find themselves. The compromise text of the proposed directive (‘compromise’ refers to a compromise between the three EU legislative bodies the Commission, the Council and the Parliament, not a compromise between the many stakeholders affected by this legislation) has essentially abandoned the initial purpose of the proposed directive. That purpose was to ensure that the public gains access to those works that are held hostage by the copyright legislation that has failed to keep up with social and technological change. Instead, the proposed directive has morphed into a twisted attempt to protect the ideology underpinning 20th century copyright legislation against the effects of the problems created by the rigidity of this very ideology. Continue reading
On Monday, June 18, MEP Amelia Andersdotter, along with her colleague MEP Ioannis Tsoukalas, is inviting you to attend the launch of the book ”The Digital Public Domain: Foundations for an Open Culture”, edited by Melanie Dulong de Rosnay and Juan Carlos De Martin as an output of the Communia Thematic Network.
The book is under a CC Attribution license and the PDF can be downloaded here.
”The Digital Public Domain: Foundations for an Open Culture”
18 June 2012
18:30 – 20:00
European Parliament, Brussels, ASP Main Hall
(Ground Floor, in front of the Newspapers Quiosque)
18:30 Welcome: MEP Amelia Andersdotter
18:35 Introduction: MEP Prof. Ioannis Tsoukalas
18:45 The Digital Public Domain – presentation by editors: Melanie Dulong & Juan Carlos De Martin
19:00 Q&A and Discussion / Cocktails
19:45 Closing remarks: MEP Amelia Andersdotter
If would like to attend the event and require access to the Parliament, please register with firstname.lastname@example.org before June 14, indicating your full name, date of birth and ID number.
More information on the book can be found on the Communia Association’s website.
Link to the invitation on Amelia Andersdotter’s blog.
Edit on 14 July 2012: a video interview of Anne-Catherine Lorrain, Juan Carlos De Martin and Melanie Dulong de Rosnay during the book launch event is available on YouTube. Thanks to Amelia Andersdotter’s team members Julia Reda, Edvinas Pauza and Tess Lindholm.
The European Parliament and the EU Council announced on June 6th to have achieved one further step toward EU legislation on ‘orphan works’ (we’re deliberately using ‘orphan works’ with comas because if this appellation is commonly used, it is based upon a metaphor being potentially misguiding; see our former post on Prof. Lydia Loren’s proposal on the ‘hostage works’ appellation).
Based upon the draft Directive on certain permitted uses of orphan works tabled by the Commission in 2011 (COM/2011/0289), about which COMMUNIA expressed some Policy Recommendations, the two European regulation bodies have come to an agreement. Although the deal is said to be ‘informal’ (it still has to get final approval from the Parliament’s Committee on Legal Affairs, Parliament as a whole and in the Council), it shows the ongoing efforts of the European regulator to move on with the ‘orphan works’ issue. The text of the agreement has not yet been made available. According to the press-release from the Parliament’s Committee on Legal Affairs:
“This legislation would allow everyone to access such “orphan works” and take forward the project of making Europe’s cultural heritage available online.”
It seems that the agreement would not bring major changes to the Commission’s proposal. This lets us think that our concerns about the shortage of the Directive are to remain, especially as regards its impact on the digital Public Domain. Nevertheless, a few elements unveiled by the press-release deserve some comments. Continue reading
U.S Law Professor Lydia Loren has just published a draft paper that contains what may be one of the most sensible contributions to the ongoing discussion about the ‘orphan works problem’. In her paper ‘Abandoning the Orphans: An Open Access Approach to Hostage Works‘ she makes a strong argument that the very name that has been attached to this problem may be misleading and lead to false solutions and thus should be reframed as the ‘hostage works problem’.
Loren states that the term, which was first introduced in 1999, overlooks the core of the problem:
These works are being held hostage by a set of rules that result in an inadvertent lock-up of the expression these works contain. (p.22)
In the context of hostage works, the incentive for creation functioned as intended: the work was created. But the incentive for distribution has actually backfired. Instead of a risk of underinvestment in distribution we have a manifestation of such underinvestment. Copyright protection is obstructing distribution, not enabling or facilitating it. This is a type of waste: copyright law is “inhibiting access . . . without any countervailing benefit.” In addressing the hostage work problem, we should be focused on a solution that reduces the waste by removing the barriers to non-owner distribution. (p.23)
Focussing on the hostage status of these works helps with devising a system that can deal with the manifest market failure that hostage works represent. While Pallas Loren’s paper discusses possible solutions against the backdrop of US copyright law, her arguments are surprisingly powerful in understanding the current discussion on the European Union level. Continue reading