Alternative Compensation Systems only work if adopted by all sides

ACS-small

This post was written by Lisette Kalshoven and Katarzyna Rybicka.

Fifteen years ago, the explosive growth of the file sharing network Napster changed the music industry forever. It was a simple response to the difficulty of finding, downloading and sharing music over the web. Since then, policy makers and stakeholders have been trying to resolve the ongoing challenge of unauthorised copying, without much success. In many instances copyright enforcement turns out to be either ineffective, or is applied in such a way that violates fundamental rights such as the right to information, freedom of expression or privacy and protection of personal data.

Last Saturday in Amsterdam, the renowned institute for research on intellectual property rights, IViR (Institute for Information Law) held a symposium on Alternative Compensation Systems (ACS) for cultural goods. An ACS can be described as a legal mechanism which permits the reproduction, downloading, sharing and sometimes even modification of copyrighted works. This can be done without the need for an opt in from users (mandatory ACS) or with an opt in (voluntary ACS), but with both options giving compensation to the creators and copyright owners of those works.

The IViR researched the non-commercial use of cultural goods online for two years. The results suggest that consumers are dissatisfied with the existing legal access channels. As a consequence, different forms of ACS were supported by the majority of the Dutch population questioned.

One of the interesting results of the study was that if implemented, a monthly compensation system fee of only ca. €1.74–collected via a surcharge on existing Dutch Internet subscriptions–would raise the same amount of revenues for rights holders as the current market for recorded music, which is ca. €144 million per year. In addition, the researchers examined the amount the respondents said they would be willing to pay for participating in a compensation system covering recorded music, which is €9.25 per month for a mandatory ACS.

If this holds true, it means that a well-designed ACS for recorded music would mean bigger revenue in the recording industry (and thus more income for creators) while still within the acceptable range that consumers would be willing to pay. Interestingly, the biggest (voluntary) subscription-based music service now, Spotify, has a monthly subscription fee of €9.99, slightly higher than what users said they’d be willing to pay when asked by the IViR researchers.

“It shimmers, it’s yellow, it might be even gold,” said Dr. Christian Handke, the co-author of the report, during his presentation at the conference. But the economic panel raised important questions, such as who should be responsible for the distribution of revenues, who should bear the operating and enforcement costs, and how would a mandatory ACS be implemented without inhibiting innovation in the music industry. These are still questions without clear answers. In short, the results are promising, but it seems we are far from implementing a mandatory ACS.

The panel on user involvement in copyright policy had intriguing panelists, including MEP Julia Reda, Agustín Reyna from BEUC and Jim Killock from Open Rights Group. They discussed, among other things, how an ACS could be adopted within European policy.

There were two important take-aways from the panel on the adoption of a mandatory ACS. First, it needs to be tested on a smaller scale before it can be implemented at the national (or Europe-wide) level. IViR realises this and is designing an experiment in The Netherlands with relevant stakeholders.

Second, Reda pointed out that such a system would never come into being if rights holders and consumers are not on the same page. Past experience has shown that consumers and citizens are more likely to get involved with copyright policy if they sense a potential negative change in how they’re able to interact with copyrighted materials, as opposed to lending their voices for a positive campaign without an immediate observable threat. The recent media attention for the freedom of panorama in the EU illustrates her point. This is a challenge, and one that we should try to overcome. We need to get citizens more involved in copyright reform in a way that makes it better suited for the digital age. We welcome discussion on how to overcome this challenge.

Why licensing is not always the solution

Last week we took part in a breakfast meeting at the European Parliament under the theme “Why licensing is not always the solution”. The meeting was hosted by MEP Jytte Guteland and co-organised by Communia together with Copyright for Creativity, IFLA, EBLIDA, and LIBER. Our goal was to demonstrate the need for reforms that go beyond licensing-based solutions, and focus in particular on supporting and expanding exceptions and limitations to copyright.

Alek Tarkowski, speaking on behalf of Communia, talked about the importance of exceptions and limitations as one of the building blocks of the Public Domain. As such, they are fundamental for creating breathing spaces within the copyright system, in which public interest goals can be achieved without copyright-related limitations.

The insufficiency of licensing-based solutions was a clear outcome of the “Licenses for Europe” structured debate in 2013. Yet in recent weeks licensing-based solutions have started to resurface in the public debate on copyright. The European Publishers Council pushes for self-regulatory solutions (that is licenses) in its submission to the Digital Single Market consultation. CISAC, in its letter to MEP Reda, goes even further and describes exceptions and limitations as damaging to artists and their families.

It is in this context that we are asking for the European legislator to review the scope of the exceptions and limitations that are currently in force – and which were defined in the InfoSoc Directive almost 15 years ago. We need strong, harmonised, re-imagined exceptions and limitations as a fundamental building block of a copyright system fit for the digital age.

While not the focus of our position paper, free licensing is sometimes seen as a specific case of self-regulation. The success of Creative Commons licensing has been raised in the past as an argument in favor of a focus on licensing-based solutions. We are against such arguments and see free licensing as another founding element of the Public Domain. It is worth reminding in this context the Creative Commons statement in support of copyright reform.

Our position is fully described in our new position paper, “The importance of exceptions and limitations for a balanced copyright policy. ​Licensing alone will not secure user rights”. You can find it, alongside previous statements, in our “Policy Papers” section.

UPDATE: IFLA and Copyright for Creativity have also published posts about the meeting.

Representing the Public Domain at the EU Observatory on Infringements of IPR

Last week Communia joined the “European Observatory on Infringements of IPR” which is hosted by the European Union’s Office of Harmonization in the Internal Market (OHIM). The Observatory’s task is to provide the EU Commission with insights on every aspect of IPR infringement. It does so primarily by conducting surveys and studies on how, where and why IP rights are violated by whom and to what extent. In addition is helps coordinate across borders the efforts of various institutions involved in law enforcement. It also runs general as well as focussed awareness campaigns in the field of IP. This is done in conjunction with a permanent stakeholder dialogue, which is organized in working groups and a yearly plenary.

The EU observatory on infringments of IPR
The European Observatory on Infringments of IPR is a unit of the EU’s Office of Harmonization in the Internal Market (OHIM), which is located on top of a cliff overlooking the Mediterranean sea in Alicante, Spain

As part of this year’s plenary, held last week in Alicante, Spain, Communia joined the observatory as only the seventh civil society group. By far the largest stakeholder group are 58 industry representatives, followed by 28 public sector institutions and 10 representatives with an observer status, which include international orgnizations such as OECD but also US interest groups. This heavy industry bias of the observatory members has to do with the Observatory’s origin being an initiative from the world of industrial property (such as trademarks, registered designs) and insititutions fighting product counterfeits entering the EU internal market.

The decision to join the observatory was prompted by the fact that the Observatory increasingly moves its focus also to the field of copyright and related rights. A major part of its agenda for 2015 deals with finding out about what children and young adults know and think about counterfeit goods and copyright violation, and with running campaigns to raise the yonger generation’s awareness of the damage done by rights violations.

The observatory is also working on a “Study on Open Licensing and the Public Domain”, both of which are core fields of expertise of COMMUNIA Association as a network and of its members. We can draw on this knowledge and also on the material produced by the Communia Project between 2007 and 2011 to support the Observatory with such studies. This offer was met with great interest by the research staff involved.

Over and above support for the study, Communia will strive to make a case for the Public Domain as a concept and as a pool of re-usable cultural heritage whenever that seems appropriate in the work of the Observatory, especially in the relevant working groups. The necessity to do this is obvious, as the Public Domain does not have too many other supporters and its value for society is often overlooked.

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

Public Domain Day 2012 (Paris)

Following the trend established by the Communia Thematic Network, we celebrated Public Domain Day in Paris on the 26th of January with an event organised by the Communia Association, Wikimedia France, Creative Commons France, the CNRS Institute for Communication Sciences and the Open Knowledge Foundation.

What unites all these organisations is that they share the common goal of encouraging the dissemination of knowledge and information, including – but not limited to – works that are in the public domain.

After an introduction by Adrienne Alix (Wikimedia France) and Mélanie Dulong de Rosnay (ISCC/Communia), the event started with a screening of Georges Méliès’ science fiction movie “A Trip to the Moon” from 1902. This was followed by a presentation of works that entered the public domain on January 1st 2012. A list was created by sorting the entries of Wikipedia according to the authors’ deaths and is available at the following address. The list includes famous French authors such as Maurice Leblanc (Arsene Lupin), as well as the painter Robert Delaunay. It also includes internationally renowned authors such as James Joyce and Virginia Woolf, to name a few.

After the initial celebration, Lionel Maurel (Bibliothèque Nationale de France) and Primavera De Filippi (Open Knowledge Foundation) went on to illustrate the role of open bibliographic metadata in its relation with the public domain. While accurate and precise metadata is necessary for the purpose of identifying works that have fallen in the public domain, it is often difficult for libraries and other cultural institutions to provide all necessary information to properly determine the legal status of a work. This also was the occasion to present the Public Domain Calculators of the OKF and the challenges that must be addressed as a result of the complexities of French copyright law. Continue reading

Séverine Dusollier’s Scoping Study on Copyright and Related Rights and the Public Domain at WIPO CDIP/8

The Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2) has been discussed at WIPO CDIP/8 (Committee on Development and Intellectual Property). WIPO secretariat will prepare a document to provide more information on three of the recommendations contained in the study (namely recommendations 1.c., 1.f. and 2.a.) proposing to lead further research on the legitimacy of tools such as CC0 dedicating works to the public domain, the development of tools identifying public domain works, being databases of calculators and cooperation with cultural heritage institutions and UNESCO to enhance the availability of public domain works.

1.c. The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point.

1.f. International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance.

2.a. The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).

Before reaching that consensus, delegations discussed whether they wanted to further discuss or implement the recommendations and which ones they would like to explore. As part of this discussion, Melanie Dulong de Rosnay made the following statement on behalf of the Civil Society Coalition and COMMUNIA:

“I would like to present a statement on behalf of the Civil Society Coalition and COMMUNIA international association on the digital public domain and take the opportunity to thank the secretariat for all the efforts led since years to lead a study on the public domain. As this is the first time I take the floor, I would like to also thank the chair for this opportunity and briefly introduce our work. COMMUNIA has been funded by the European Commission between 2007 and 2011 and recently incorporated as an international organization under Belgian law.

The most emblematic output of COMMUNIA is the Public Domain Manifesto, which was translated in over twenty languages and signed by several thousands individuals and a few hundreds associations worldwide. The author of the study under discussion was a member of the thematic network and we welcome very warmly all of its recommendations. A vibrant, positively defined public domain is of vital importance for the international copyright framework and for the Development Agenda as set up by the Recommendations in particular from Cluster B recommendations 16 and 20.

[Cluster B Norm-setting, flexibilities, public policy and public domain Recommendations 16. Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain & Recommendation 20. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions]

Specifying the boundaries of the Public Domain is of paramount importance for business and cultural sector organisations alike, as:

  • (a) an increasing number of businesses is making use of Public Domain material to offer value added services (e.g. applications based on public domain content) and
  • (b) cultural sector organisations and memory institutions are holding vast amounts of Public Domain material which they cannot use without a clear understanding of the Public Domain boundaries.

For these reasons, we believe CDIP is the right forum to discuss this study and all of its recommendations.

It is time to make full use role of the informational works owned by all of us, be that literature, music, the output of scientific research, educational material or public sector information. Identifying and preserving works which can legally be reused freely is beneficial for the society as a whole, for cultural expression, for innovation by economic actors based on public data, for access to knowledge and especially education through Open Educational Resources, a movement which is strongly supported by UNESCO, and for development by all countries.”

The Digital Public Domain: Relevance and Regulation

Beyond the wall between what is protected… and what is not. The question was raised in Berlin.

The 1st Berlin Symposium on Internet and Society was held last week (October 25-28, 2011), on the occasion of the inauguration of the Humboldt University’s new multi-disciplinary Research Institute on Internet and Society (IIC, Institut für Internet and Gesellschaft). The event gathered many of the most prominent worldwide experts on Internet issues, accross academic fields and professional horizons.

During the opening session, Prof. Jeanette Hofmann insisted on the fact that research on internet and society has to reach areas beyond “intellectual property” and the usual categories delimitating the way we experience and think the Internet. In that respect, she cited the Public Domain as something that should deserve further study and expertise. This should pave the way to future exciting research projects, which COMMUNIA is keen to follow closely.

The conference proposed many workshops inviting participants to challenge the way we think the digital world (see the sessions programme). One of them was dedicated to The Digital Public Domain: Relevance and Regulation. Based on the excellent paper drafted and presented by Leonhard Dobusch, the discussion was led by Martin Kretschmer, Juan Carlos de Martin and Felix Stadler, and then open with the workshop participants (among whom Prof. Niva Elkin-Noren, Prof. Ingrid Schneider…). Continue reading