7 reasons why the European Parliament’s vision of copyright reform is more progressive than the Commission’s

Schaatsenrijden in een dorp
The Commission has opted for a safe approach
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While at this stage almost everyone agrees that the EU’s 2001 Copyright Framework is outdated and needs to be reformed, there is a very broad spectrum of ideas of what such a reform should look like. Recently, two of the three EU legislative bodies (who will need to agree on the final outcome) have laid their cards on the table: on the 9th of December 2015 the European Commission presented its long-awaited communication on copyright ‘Towards a modern, more European copyright framework‘ (our comments can be read here), and on the 19th of January the European Parliament followed up with a report on how to achieve a Digital Single Market Act (our opinion on the document is presented here). Next, the Commission will come up with specific legislative proposals before the summer, which will then need to be approved by the Parliament.

In this situation it is interesting to compare the overall positions of these two actors. From our perspective the Parliament’s approach to copyright reform is more progressive.  This is because the Commission has opted for a safe approach that proposes only minimal changes to the existing rules, whereas the Parliament put forward a number of more interesting and substantial ideas on the direction of the reform:  

  1. The European Parliament calls for abolishing the failed Directive on Databases, since the directive is considered to be an impediment to the development of a European data-driven economy. On the other hand, the Commission’s communication doesn’t even mention any changes related to the  Directive. The Parliament’s recommendation would set a positive precedent in abolishing IP rights if they do more harm than good.
  2. Creative Commons licences are perceived by the Parliament as digital forms of collaborative work and communication that should be be taught and applied across national and linguistic borders in education and training, in public research establishments, and to be promoted in public procurement procedures. Such an approach to open licences will strengthen open culture and open knowledge, and is in our opinion worthy of consideration by the Commission, which omitted the issue of open licensing in its communication.
  3. The Parliament encouraged the Commission to examine whether potential issues related to online platforms could be resolved by proper and full implementation of existing legislation and effective enforcement of EU competition law. The Parliament stressed that the limited liability of intermediaries is essential to the protection of the open internet; this is which is coherent with Communia’s approach. But the Commission’s recommendations seem to be more willing to put additional obligations on intermediaries and to change legislative framework, which was demonstrated in the way the Commission’s consultations on this issue was developed.  
  4. The Parliament wants to introduce the rule of free accessibility (a.k.a. open access) of research results which are at least 50% publicly funded. Such approach is very progressive since none of EU member states have thusfar introduced such a rule on a general scale. Currently, provisions promoting open access to scholarly research can be found as requirements in public procurement procedures and some grants programs, but not in national policies.
  5. The Commission and the Parliament have different approaches to text and data mining (even while both agree that TDM should fall under an  exception to copyright to avoid uncertainties in the research community). The Commission wants to allow public interest research organisations to carry out text and data mining of content they have lawful access to, with full legal certainty, for scientific research purposes. However, the Parliament’s suggestion does not include the  limitation to engage in text and data mining only for  “scientific research purposes”. The Commission’s approach would cover an extremely limited set of beneficiaries, and endorse a licensing-based approach instead of creating a harmonized exception for the benefit of researchers across the EU.
  6. The Parliament warns that everyone shall be cautious against indiscriminately promoting the issuing of mandatory pan-European licences as a tool to deal with geo-blocking, since this could lead to a decrease in the types of content made available to users. The Commission seems not to see such a threat, and is willing to give rights holders and distributors the freedom to reach an agreement on licences that would allow for cross-border access to content. Once again, the Commission seems to believe that licencing is the answer to almost all of the challenges surrounding this issue.
  7. According to the Parliament, fundamental rights such as freedom of expression and privacy are among the factors that should be taken into consideration while shaping a comprehensive copyright framework. In addition, the Parliament wishes to explore fair and appropriate remuneration for creators and other rights holders, economic growth, competitiveness and enhanced consumer experience. For the Commission, protection of fundamental rights only matters while discussing enforcement mechanisms.

Without a doubt, the Parliament’s report could have been more progressive by tackling issues such as the threat of ancillary copyright for press publishers, or the need to safeguarding the public domain. And of course the Parliament’s report only provides suggestions for the ongoing reform discussions— the Commission is not required to take the opinions expressed by the Parliament into account when drawing up their proposals. Nevertheless, we hope the Commission will seriously evaluate and integrate some of the Parliament’s proposals. If they do so, it will go a long way in  helping create ‘a more modern, more European copyright framework’, and not simply a temporary remedy for current problems.

Public Domain day 2016 at the European Parliament

Public Domain Day 2016
Celebrating the Public Domain in the European Parliament
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On Monday the 25th of January COMMUNIA organized a Public Domain Day celebration at the European Parliament. The event, which focussed on showcasing creators who have chosen to donate their output to the public domain, was hosted by MEP Julia Reda.

The following creators participated in the event and shared their experiences as input at the lunch table discussions: Kenney Vleugels, who makes game assets available to other game developers  under the the CC0 public domain dedication, Alastair Parvin of WikiHouse.cc, who is developing an open source approach to sustainable housing, Femke Snelting of Constant, who is publishing Public domain magazines, Eric Schrijver, who is writing a sharing guide for artists, and Thomas Lommee from Open Structures, a  standardised open design system. The lunch discussions focused on the artistic and design practices of these creators and the challenges they run into. A recurring theme was the legal uncertainty created by overly complex copyright laws, and the excessive length of copyright protection.

The Public Domain is traditionally seen as a body of old works that went out of copyright. Public Domain Day celebrates this very moment, when the period of copyright protection ends for works of certain authors. During our event we wanted to highlight the fact that the Public Domain is a modern phenomenon. That it is very much alive. From this perspective, the ongoing policy debate on European copyright will shape our Public Domain for years to come.

2016 is a crucial year for the public domain


As highlighted by Julia Reda in her intervention on Monday, 2016 promises to be a crucial year with regard to the future of the public domain. Later this year the European Commission will—for the first time in over 15 years—propose changes to the EU copyright rules. This provides the opportunity to adopt policies that will strengthen the public domain. Reda mentioned that the European Parliament clearly expressed the desire to better protect the public domain, both in the eponymous Reda report, and more recently in its report on the Commission’s Digital Single Market strategy.

Unfortunately, measures related to strengthening the public domain do not seem to be very high on the Commission’s agenda right now. This is why we have used the Public Domain Day celebration to present a list of seven actions that will support the growth of the public domain in Europe. These actions are aimed at creating a modern copyright framework that is fit to serve the public interest in the 21st century. These actions need to be part of the update of the EU copyright rules. Continue reading

Copyright Week 2016: The public domain as foundation for EU copyright law reform

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We’re taking part in 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.

COMMUNIA advocates for policies that expand the public domain and increase access to and re-use of culture and knowledge. Over the last few years we’ve focused on policy advocacy and copyright reform in Europe, especially in light of the review of the EU copyright rules. The public domain is an essential sphere for creativity and knowledge production, and its limitless potential continues to inform our copyright reform advocacy.

We write in our March 2015 policy paper about several changes to EU copyright law that would better support the public domain. Some of these include capping the term of copyright protection to the minimum required by the Berne Convention, opposing the introduction of ancillary copyrights, protecting the freedom of panorama, and exempting works produced by the public sector from copyright protection. In addition, we call for the introduction of a positive definition of the public domain, the recognition of the legal validity of voluntary dedication of works to the public domain by their authors, and clarity that digitizing public domain works should not generate new exclusive rights.

In June of last year the European Parliament adopted an evaluation report on the existing EU copyright rules authored by MEP Julia Reda. While the EP failed to call for substantial updates to exceptions and limitations, it contains some support for the public domain. It urges the European Commission to clarify that once a work is in the public domain, the simple act of digitisation does not create new rights. It suggests that the term of copyright be held at the international standard (life of the author plus 50 years). It also states that works created by government employees should be in the public domain. Finally, it recognizes that authors should be able to dedicate their works to the public domain.

With its report, the European Parliament also rejected the introduction of an ancillary copyright for for press publishers. This is an important victory as adding such an extra layer of rights to the already extensive body of copyright and copyright-like protections would further limit the public domain. Unfortunately, the European Commission still hasn’t distanced itself from plans to introduce an ancillary copyright on the EU level, which has prompted 83 members of parliament to reconfirm their opposition to it in December.

With legislative proposals promised by the Commission in the first half of this year, 2016 promises to become a crucial year with regard to the shape of the public domain in Europe. On the 25th of January we are kicking the year off with an event in the European Parliament celebrating Public Domain Day (hosted by MEP Julia Reda). Together with creators and policymakers, we will discuss the value of the public domain and how an update of the EU copyright rules can strengthen the public domain for everyone.

COMMUNIA policy paper on leveraging copyright in support of education

Leerlingen in een lokaal van een kunstnijverheidsschool in Amsterdam
Principles for education exceptions to copyright
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Communia has published a policy paper on the topic of leveraging copyright in support of education. We contend that exceptions and limitations to copyright for education should support broad access and re-use of copyrighted content of all types in a variety of education settings and across borders.

The best way to achieve the proper balance of interests at stake is through the adoption of an exception or limitation to copyright for educational purposes that meets the following requirements:

  • it should be able to address local and cross-border education needs;
  • it should be mandatory;
  • it should be neutral with regard to media type, format, and technology;
  • it should be flexible; and
  • it should cover all necessary uses provided they are in accordance with fair practice.

We note that an exception or limitation to copyright for educational purposes is crucial because licensing will never be a wholly adequate solution to provide access to these works.

The full policy paper can be viewed online or downloaded as a PDF here.

What the diary of Anne Frank can tell us about Text and Data mining

Allegorie op de scheikunde
Copyright must not be used to thwart scientific research
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Recently, everybody has been busy discussing the question of whether the Diary of Anne Frank will enter (or by now, has entered) the public domain on January 1st this year (Answer: It’s complicated). Surprisingly, the discussions surrounding the copyright in Anne Frank’s writings may shed some light on another contentious copyright policy issue: text and data mining. These insights are the result of a recent ruling by the District Court of Amsterdam in dealing with a dispute between the Anne Frank Stichting (owner of the physical diaries and operator of the Anne Frank House in Amsterdam) and the Anne Frank Fonds (owner of the copyrights in Anne Frank’s writings).

The Anne Frank Stichting announced plans to publish an edition of Anne Frank’s texts online after the presumed expiration of the copyright on January 1, 2016. In response, the Anne Frank Fonds sued the Stichting over what it considered unauthorised reproductions of Anne Frank’s writings. The reproductions had been made by the Stichting as part of its preparatory research for the on-line publication after the new year. Initially, this seemed to be an attempt by the Fonds to thwart or delay the Stichting’s plans for an online edition.

However, during the course of the legal arguments it became clear that under Dutch law (which governs uses made by the Stichting), Anne Frank’s original writings would not enter the public domain in 2016. This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright—in this case large parts of the original writings will only expire in 2037.

While this means that the Stichting had to shelve its plan to publish an online edition, the Fonds continued to press charges related to the reproductions (XML-TEI files) made by the Stichting in order to carry out its textual and historical research. The Stichting was sued alongside their research partner the Dutch Royal Academy of Science (KNAW). Both upheld the position that it did not require permission for making reproductions solely intended to enable its internal scholarship, claiming that copyright law should not be used to thwart scientific research. Continue reading

COMMUNIA response to the EU consultation on online platforms

At the end of the last year COMMUNIA submitted its response to the European Commission’s public consultation on online platforms. While we have not hidden the fact that this particular consultation is deeply flawed in its approach (see here, here and here), we have nevertheless chosen to submit answers to some of the question raised by the Commission via the consultation.

Our answers focus on the the questions related to the liability of platform operators for copyright infringing content that is made available via their platforms, additional layers of copyright protection, and on the open data section of the consultation. You can find our full response here (pdf).

We will continue to monitor the outcomes of this consultation and are curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu and Save the Link’s internet voice tool.

Challenges and problems of EU consultation on copyright

Clear Weather with a Southerly Wind
The Commission should not impose its own objectives and agenda during the consultation period.
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This post was written by Agnieszka Vetulani-Cegiel. 

The European Commission is willing to cooperate with interested parties (i.e. civil society, interest groups, stakeholders, other entities). The open attitude of the Commission is demonstrated by the inclusion of these parties in the policy-making process, and in work on legal mechanisms. This situation is beneficial to both sides. For the interest groups, it is an opportunity to participate in the policy-making process and to influence EU policies through advocacy and lobbying. For the Commission, it is a way to learn about stakeholders’ views, to earn their support for its actions, and to obtain input to possible legislative proposals.

A big debate on the transparency of the EU policy-making process was triggered by the issuing of the White Paper on European Governance. As a result, since 2001, a range of standards and principles covering the transparency of the policy-making process—as well as relations with ‘interested parties’—has been adopted. Also, the Transparency Register, the Register of Expert Groups, and the Comitology Register were established.

The Commission recently issued a new document called the Better Regulation Guidelines. The Better Regulation initiative aims at making EU action more effective by ensuring that “policy is prepared, implemented and reviewed in an open, transparent manner, informed by the best available evidence and backed up by involving stakeholders”. The Guidelines cover the whole policy cycle: from policy design and preparation, to adoption, implementation (transposition, complementary non-regulatory actions), application (including enforcement), evaluation and revision, and include inter alia Guidelines on Stakeholder Consultation (Chapter VII).

The objective of the Stakeholder Guidelines is to complement and further define the scope of the General principles and minimum standards for consultation set in 2002. It is worth mentioning that a lot of attention has been paid to the mapping of different categories of stakeholders taking part in the EU consultation. It is stated, also, that “open, internet-based public consultation” is mandatory for initiatives with impact assessments, evaluations, fitness checks and Green Papers. The consultation needs to run for at least 12 weeks. Moreover, the Guidelines provide that stakeholders must be enabled to give feedback on the following aspects: roadmaps for evaluations and fitness checks (4 weeks), roadmaps, inception impact assessments (indication of time to be provided after publication), draft delegated acts (4 weeks), draft implementing acts (4 weeks), legislative or policy proposals adopted by the College and, where applicable, the accompanying impact assessments (8 weeks).Continue reading

Invitation to Public Domain Day celebration in the European Parliament

Affiche Delftsche Slaolie
Celebrate Culture with us in the European Parliament
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Join us on January 25th in the European Parliament to celebrate Public Domain Day. This day falls on the first day of the new year and marks the term of copyright protection on creative works.

This new state for cultural works means that they are now free to be reused for new cultural, commercial, educational and innovative practices. During the lunch-event in the Members Salon we will talk about the value of the public domain in fostering Europe’s innovation capacities, by inviting creators to share how they use public domain works in their businesses and approach copyright.

Speakers include our host in the European Parliament Julia Reda (MEP, The Greens EFA – Germany), Alek Tarkowski (Director Centrum Cyfrowe), Paul Keller (Director Kennisland).

Please RSVP for this event to Lisette Kalshoven at lk@kl.nl

For more details please refer to the official invitation.

83 MEPs say ‘no’ to ancillary copyright in Europe

Royal 15 E.VI, f.21 (Talbot Shrewsbury book via British Library)
Fighting against Ancillary Copyright
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Last week’s Communication from the Commission did not explicitly state that they plan to introduce ancillary copyright in Europe, but it was very easy to read between the lines. Research in Spain has shown (and again in Germany) that ancillary copyright is good for no-one, so the echoes from the Commission about considering the introduction of an ancillary copyright was a cause for concern by over 80 MEPs. Together they wrote a letter to the Commission, stating:

While the Communication is taking great care in remaining non-committal in nature and open-ended towards the results, both the setting and supplementing references in chapter 4 are directly and unequivocally pointing towards the first steps towards the introduction of an ancillary copyright for the benefit of press publishers. The European Parliament has on many occasions positioned itself against the introduction of such an ancillary copyright. We urge the Commission to remain focused on a reform of copyright rules that strengthens the European Digital Single Market, fosters creativity and research while being aware of the dangers of undermining the foundations of one of the greatest revolutions in Information Technology.

Contrary to the suggestions in the Communication, there is no ambiguity in the interpretation of EU copyright rules with regards to content that is both legal in nature and freely accessible on the Internet. Sufficient clarity has been achieved with the judgement of the Court of Justice of the European Union in the Svensson case.

We wholeheartedly agree with the concern expressed by the MEPs, which include signatories Vicky Ford (ECR), Julia Reda (Greens/EFA), Marietje Schaake (ALDE), and Josef Weidenholzer (S&D).

It is essential that we share the views of the public on ancillary copyright and other issues and questions with regard to copyright reform in Europe. You can so so until the end of the month via http://youcan.fixcopyright.eu/.

Doubling the size of the useable public domain

Shepherdess with a Flock of Sheep
The commons continues to grow
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On Tuesday Creative Commons released its 2015 State of the Commons report. The annual report showcases data and trends about the growth and diversity of the commons.

Creative Commons—which is a founding member of COMMUNIA— reported a major milestone this year: over 1.1 billion CC licensed photos, videos, audio tracks, educational materials, research articles, 3D models and more have now been contributed to the shared global commons. More people and institutions than ever before make use of CC’s tools to free up rights-protected content for everybody to re-use.

In addition, CC noted a huge increase in the number of works shared in the public domain using the CC0 Public Domain Dedication and out-of-copyright works marked with the Public Domain Mark. According to the data, the total number of public domain works using these tools in 2014 was about 17.5 million. That number jumped to nearly 35 million in 2015. This means that the size of the CC-marked public domain nearly doubled over the last year. This is in part due to the tools being more widely and adopted by platforms like Europeana and Flickr. Providing clear information about the public domain status of works is crucial so that subsequent creators know they can use those works without any restriction. Continue reading