Open letter calls for balanced representation of views in the EuroParl’s IPR Working Group

A balancing of viewpoints and interests in the European copyright debate has been a commonly shared goal since the 2013 “Licenses for Europe” stakeholder dialogue. A key outcome of last year’s EU consultation on copyright has been that the current copyright law is unbalanced – while rights holders and producers are satisfied with the status quo, institutions and end users are not (see are previous post on the matter, “Rightsholders are from Mars, Users are from Venus”).

A reform ensuring a more balanced copyright system will only be achieved, if we conduct a public debate that fairly presents all of the varied and sometimes conflicting viewpoints. The Working Group on IPR and Copyright Reform, led by Jean-Marie Cavada in the JURI Committee, is a key forum for this debate. The group regularly organizes meeting with stakeholders, and it’s invitation track record is far from balanced or neutral. In the last meeting on “Exchange of views on publishing and copyright issues on the digital environment”, the Working Group invited representatives of five rights holders, one library representative and no representatives from end users or intermediaries.

In reaction, a group of 24 organisations (including our association) have signed an open letter to Mr. Cavada, titled “Ensuring Balance” and expressing concern with regard to the lack of diversity of expert speakers and the corresponding representation of views:

“Making copyright rules future-proof requires a holistic approach. This can only be achieved if the full spectrum of stakeholders is adequately represented and given a chance to speak in front of Members of Parliament who will ultimately be tasked with passing new copyright legislation.”

The signatories call on the Working Group to make all views appropriately represented in upcoming meetings.

The Little Prince: almost in the Public Domain

This week is Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s subject is the Public Domain.

Despite nearly 25 years of efforts to fully harmonise digital law in Europe, the road to a harmonised copyright system is certainly not a speedy highway. In fact, each Member State still has its own copyright system that applies within its own territory. One of the areas where this is most visible are the rules for determining when a particular work enters the public domain because the copyright term has expired.

The Little Prince 6th Antoine de Saint-Exupéry was killed in 1944, during a flight over the Mediterranean Sea. “The Little Prince”, his best-known book, is the third most popular novel in the world, translated into over 250 languages over more than 600 translations. More than 80 million copies have been printed. If you know a bit about the rules for determining when a work goes out of copyright, we can assume that on 1st January 2015 “The Little Prince” became part of the public domain. This is because in France copyright lasts for 70 years after the death of the author. And since Saint-Exupéry died in 1944, this would put “The Little Prince” into the public domain in France.

However, the harmonization of the duration of copyright is not uniform. In France, works of authors who died for France during the First and Second World Wars benefit from additional copyright protection. Copyright for works created by these authors is extended for an additional 30 years to compensate for the losses and difficulties in the commercial exploitation of their works during the war.

Beginning this year, “The Little Prince” is in the public domain almost everywhere in Europe. But in France, the novel will pass into the public domain sometime between 1 May 2033 and 1 January 2045, depending on your interpretations of the rules! Interestingly, Canadians have been freely using “The Little Prince” for the last 20 years, as copyright expires there 50 years after the death of the creator.

The French exception may seem surprising to you, but it’s not an outlier. There are multiple other such exceptions present in various European countries. When such irregularities are combined with inconsistent terminology within the European Directives (not to mention differences in the ways the Directives are implemented at the national level) along with unreliable information on the dates of death of the authors, we see we’re a long way from sensible harmonization of copyright law across Europe.

Fortunately, there is good news: establishing a single European framework that enables cross-border flow of products and services is one of the priorities of Jean-Claude Juncker, the newly elected President of the European Commission. The recent report by MEP Julia Reda on the evaluation of the Copyright Directive (2001/29/EC), and tweets made by Commisioner Oettinger and Vice-President Ansip about the need of new copyright rules, are all hopefully signs of coming change. We hope that we’ll be able to report about it during Copyright Week 2016.

(Paul Keller wrote about “The Little Prince” and the public domain on this blog in 2012).

The Limits of Copyright: Text and Data Mining

This post was originally published on the Creative Commons blog under CC BY 4.0.

This week is Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic is about supporting fair use, a legal doctrine in the United States and a few other countries that permits some uses of copyrighted works without the author’s permission for purposes such as parody, criticism, teaching, and news reporting. Fair use is an important check on the exclusive bundle of rights granted to authors under copyright law. Fair use is considered a “limitation and exception” to copyright.

One area of particular importance within limitations and exceptions to copyright is the practice of text and data mining. Text and data mining typically consists of computers analyzing huge amounts of text or data, and has the potential to unlock huge swaths of interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel scholarly discoveries and critical scientific breakthroughs. Because of this, text and data mining is increasingly important for scholarly research.

Recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from copyright. And as the European Commission conducts their review of EU copyright rules, some groups have called for the addition of a specific text and data mining exception. Copyright for Creativity’s manifesto, released Monday, urges the European Commission to add a new exception for text and data mining, in order to support new uses of technology and user needs.

Another view holds that text and data mining activities should be considered outside the purview of copyright altogether. Our response to the EU copyright consultation takes this approach, saying “if text and data mining would be authorized by a copyright exception, it would constitute a de facto recognition that text and data mining are not legitimate usages. We believe that mining texts and data for facts is an activity that is not and should not be protected by copyright and therefore introducing a legislative solution that takes the form of an exception should be avoided.” Similarly, there have been several actions advocating that “The right to read should be the right to mine.”

Whether text and data mining falls under a copyright exception or outside the scope of copyright, it is clearly an activity that should not be able to be controlled by the copyright owner. But unfortunately, that is exactly what some incumbent publishing gatekeepers are trying to do by setting up restrictive contractual agreements. One example of this practice is with the deployment of a set of “open access” licenses from the International Association of Scientific, Technical & Medical Publishers (STM), many of which attempt to restrict text and data mining of the licensed publications. In jurisdictions such as the United States, users do not need to ask permission (or be granted permission through a license) to conduct text and data mining because the activity either falls outside of the scope of copyright or is squarely covered by fair use.

Ensuring that licenses give copyright owners no more control over their content than they have under copyright law is a fundamental principle of Creative Commons licensing. That’s why the CC licenses explicitly state that they in no way restrict uses that are under a limitation or exception to copyright. This means that users do not have to comply with the license for uses of the material permitted by an applicable limitation or exception (such as fair use) or uses that are otherwise unrestricted by copyright law, such as text and data mining in many jurisdictions.

Today’s topic of fair use rights reminds us that “for copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.” To liberate the massive potential for innovation made possible by existing and future types of text and data mining, we need user-focused copyright policy that enables these new activities.

 

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

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.

Open Definition 2.0 released

This post initially appeared on the Creative Commons blog, republished here under CC BY 4.0

Today Open Knowledge and the Open Definition Advisory Council announced the release of version 2.0 of the Open Definition. The Definition “sets out principles that define openness in relation to data and content,” and is the baseline from which various public licenses are measured. Any content released under an Open Definition-conformant license means that anyone can “freely access, use, modify, and share that content, for any purpose, subject, at most, to requirements that preserve provenance and openness.” The CC BY and CC BY-SA 4.0 licenses are conformant with the Open Definition, as are all previous versions of these licenses (1.0 – 3.0, including jurisdiction ports). The CC0 Public Domain Dedication is also aligned with the Open Definition.

The Open Definition is an important standard that communicates the fundamental legal conditions that make content and data open. One of the most notable updates to version 2.0 is that it separates and clarifies the requirements under which an individual work will be considered open from the conditions under which a license will be considered conformant with the Definition.

Public sector bodies, GLAM institutions, and open data initiatives around the world are looking for recommendation and advice on the best licenses for their policies and projects. It’s helpful to be able to point policymakers and data publishers to a neutral, community-supported definition with a list of approved licenses for sharing content and data (and of course, we think that CC BY, CC BY-SA, and CC0 are some of the best, especially for publicly funded materials). And while we still see that some governments and other institutions are attempting to create their own custom licenses, hopefully the Open Definition 2.0 will help guide these groups into understanding of the benefits to using an existing OD-compliant license. The more that content and data providers use one of these licenses, the more they’ll add to a huge pool of legally reusable and interoperable content for anyone to use and repurpose.

To the extent that new licenses continue to be developed, the Open Definition Advisory Council has been honing a process to assist in evaluating whether licenses meet the Open Definition. Version 2.0 continues to urge potential license stewards to think carefully before attempting to develop their own license, and requires that they understand the common conditions and restrictions that should (or should not) be contained in a new license in order to promote interoperability with existing licenses.

Open Definition version 2.0 was collaboratively and transparently developed with input from experts involved in open access, open culture, open data, open education, open government, open source and wiki communities. Congratulations to Open Knowledge and the Open Definition Advisory Council on this important improvement.

Communia response to Science 2.0 consultation

Today the European Commission concluded a consultation on ‘Science 2.0’: Science in Transition. The objective of the consultation is “to better understand the full societal potential of ‘Science 2.0′ as well as the desirability of any possible policy action.” Science 2.0 is defined as the “on-going evolution in the modus operandi of doing research and organising science.” COMMUNIA responded to the questionnaire because there were issues relevant to how scientific research and data could be made available under open licenses or as a part of the public domain. One question asks respondents to rank the specific areas in which they feel a need for policy intervention. We noted that a few opportunities for policy development are open access to publications and research data, and increased attention to policies that support text and data mining. From our submission:

Open access to publication and research data as either in the public domain or under an open license aligned with the Open Definition would help work towards the goals of Science 2.0. Such a policy would be especially important when public funds are expended for scientific research and publications. COMMUNIA policy recommendation #12 states, “all publicly funded research output and educational resources must be made available as open access materials.” Interest in text and data mining is increasing, and traditional gatekeepers of science scholarship (namely commercial publishers) are attempting to restrict this activity through the adoption of custom licenses and/or contractual terms. We think that text and data mining should be considered as outside of the scope of copyright protection, and instead should be considered as an extension of the right to read (see “Right to Read is the Right to Mine”). Text and data mining should not be treated with a contractual approach which would try to license for a fee this usage in addition to the right of access. Terms of use prohibiting the lawful right to perform data mining on a content accessed legitimately should be considered an abuse of exclusive rights.

Here’s our responses to the questionnaire. The Commission’s background paper on the Science 2.0 consultation is here.

Dozens of organizations tell STM publishers: No new licenses

The keys to an elegant set of open licenses are simplicity and interoperability. CC licenses are widely recognized as the standard in the open access publishing community, but a major trade association recently published a new set of licenses and is urging its members to adopt it. We believe that the new licenses could introduce unnecessary complexity and friction, ultimately hurting the open access community far more than they’d help.

Today, COMMUNIA and 57 organizations from around the world released a joint letter asking the International Association of Scientific, Technical & Medical Publishers to withdraw its model “open access” licenses. The association ostensibly created the licenses to promote the sharing of research in the scientific, technical, and medical communities. But these licenses are confusing, redundant, and incompatible with open access content published under other public licenses. Instead of developing another set of licenses, the signatories urge the STM Association to recommend to its authors existing solutions that will truly promote STM’s stated mission to “ensure that the benefits of scholarly research are reliably and broadly available.” From the letter:

We share a positive vision of enabling the flow of knowledge for the good of all. A vision that encompasses a world in which downstream communicators and curators can use research content in new ways, including creating translations, visualizations, and adaptations for diverse audiences. There is much work to do but the Creative Commons licenses already provide legal tools that are easy to understand, fit for the digital age, machine readable and consistently applied across content platforms.

So, what’s really wrong with the STM licenses? First, and most fundamentally, it is difficult to determine what each license and supplementary license is intended to do and how STM expects them each to be used. The Twelve Points to Make Open Access Licensing Work document attempts to explain its goals, but it is not at all clear how the various legal tools work to meet those objectives.

Second, none of the STM licenses comply with the Open Definition, as they all restrict commercial uses and derivatives to a significant extent. And they ignore the long-running benchmark for Open Access publishing: CC BY. CC BY is used by a majority of Open Access publishers, and is recommended as the optimal license for the publication, distribution, and reuse of scholarly work by the Budapest Open Access Initiative.

Third, the license terms and conditions introduce confusion and uncertainty into the world of open access publishing, a community in which the terminology and concepts utilized in CC’s standardized licenses are fairly well accepted and understood.

Fourth, the STM licenses claim to grant permission to do many things that re-users do not need permission to do, such as describing or linking to the licensed work. In addition, it’s questionable for STM to assume that text and data mining can be regulated by their licenses. Under the Creative Commons 4.0 licenses, a licensor grants the public permission to exercise rights under copyright, neighboring rights, and similar rights closely related to copyright (such as sui generis database rights). And the CC license only applies when at least one of these rights held by the licensor applies to the use made by the licensee. This is important because in some countries, text and data mining are activities covered by an exception or limitation to copyright (such as fair use in the United States), so no permission is needed. Most recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from the reach of copyright.

Finally, STM’s “supplementary” licenses, which are intended for use with existing licenses, would only work with CC’s most restrictive license, Attribution-NonCommercial-NoDerivatives (BY-NC-ND). Even then they would have very limited legal effect, since much of what they claim to cover is already permitted by all CC licenses. As a practical matter, these license terms are likely to be very confusing to re-users when used in conjunction with a CC license.

The Creative Commons licenses are the demonstrated global standard for open access publishing. They’re used reliably by open access publishers around the world for sharing hundreds of thousands of research articles. Scholarly publishing presents a massive potential to increase our understanding of science. And creativity always builds on the past, whether it be a musician incorporating samples into a new composition or a cancer researcher re-using data from past experiments in their current work.

But to fully realize innovations in science, technology, and medicine, we need clear, universal legal terms so that a researcher can incorporate information from a variety of sources easily and effectively. The research community can enable these flows of information and promote discoveries by sharing writings, data, and analyses in the public commons. We’ve already built the legal tools to support content sharing. Let’s use them and not reinvent the wheel.

EU copyright consultation: Rights Holders are from Mars, Users are from Venus

Last week the European Commission published its ‘Report on the responses to the Public Consultation on the Review of the EU Copyright Rules‘. This report summarizes the more than 11.000 responses that the Commission had received in reaction to the copyright consultation held between December 2013 and March of this year. While it is clear that a 100-page document cannot do justice to all of the responses (our own response measured in at 24 pages), the report is informative in a number of ways.

Maybe the most striking (although unsurprising) insight that can be gained from reading the report is that stakeholders are completely divided in their perception of how well EU copyright law meets the requirements of the digital environment: Citizens and institutional users think this is not the case while authors and other rightholders are convinced it does. Over at governance across borders Leonhard Dobusch has done an excellent job at illustrating this fact:

Continue reading