Communia responds to EU consultation on new copyright rules

Communia has responded to Public Consultation on the review of the EU copyright rules that closes today. While we wait for the Commission to publish all the responses on its own website (given that we are hearing about more 10.000 responses so far this will likely be quite a challenge) we have uploaded our response here (pdf).

In our response we call for a radical overhaul of the European Copyright rules. In line with our 2011 policy recommendations we argue for a shortening of the copyright term, the introduction of a registration system, more harmonization of the limitations and exceptions (with the final goal of a single European copyright code), and a strengthening of user rights via a robust set of limitations and exceptions that ensure access to our shared knowledge and culture online. In addition to broadened or new exceptions for cultural heritage institutions, educators, researchers, people with disabilities and private individuals we also call for the introduction of more flexibility by adding an open norm to the list of existing exceptions.

We are very pleased to see that there has been a massive response from citizens and civil society organisations to this consultation. While the content of these responses is only known to the Commission at this point, the amount of responses clearly proves that the Commission’s strategy to limit the discussion about copyright policy to an intra-industry discussion about licenses is no longer sustainable. Europe needs a new set of copyright rules that embrace the opportunities created by the digital age, and this discussion needs to include citizens and civil society as important stakeholders. As far as Communia is concerned this discussion needs to focus on maximising the social and economic benefits of the internet instead of facilitating specific internet based business models.

No the internet is not a ‘value tree’. If you must compare it to nature, a forest would be much more adequate

You may have heard that the EU is currently reviewing copyright in order to ensure that it ‘stays fit for purpose in this new digital context’. While the public consultation on this topic is still running, EU officials have started to give some insights on how they see the digital environment that needs to be served by new copyright rules. In recent weeks officials at the European Commission’s Internal Market and Services Directorate General (which is in charge of copyright policy) have been passing around this diagram of what they call the ‘Internet Ecosystem value tree’:

Internet Ecosystem value tree

The ‘Internet Ecosystem value tree’ according to the European Commission.

Apparently this Internet Ecosystem value tree is rather important in how the Commission sees the relationship between copyright and the digital environment. This is expressed in the concerns raised about the ecosystem’s ability to sustain the value tree. Commission officials are pointing out ‘that the roots need to be fed for the tree to keep blossoming’ and that this needs to happen via a ‘transmission belt of Euros’ (which seems to refer to the € Licenses arrow in the diagram above).

A transmission belt of Euros

Now anyone is entitled to their own opinion and views of the world, but it is alarming to see that the very people who are in charge of formulating the rules that will shape our use of the digital environment for years to come are basing their ideas on a rather simplistic model of the internet, that looks at the internet as if it was yet another push medium in the the line of newspapers, radio, CDs or television.

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The Australian Law Reform Commission recommends fair use, Europe next?

With the EU consultation on a review of the European Copyright rules still ongoing (the new extended deadline is the 5th of March) it is nice to see that some other countries are apparently making progress with their national copyright reform agendas. One of the most interesting bits of news is coming out of Australia.

Australien-Law-Reform-Commission

The Australian Law Reform Commission has just published its report on Copyright and the Digital Economy. At the centerpiece of this report we find the recommendation to replace the existing system of purpose-based exceptions with a flexible fair use style exception. The proposal, on which the 1709 Blog has a very useful summary, combines a fair use clause with a number of illustrative purposes that aims at providing legal certainty for specific types of uses:

Under the proposed framework, determining whether a use is ‘fair’ requires the balancing of the same four factors as those that underpin the US fair use doctrine, ie:

  • the purpose and character of the use;
  • the nature of the copyright material;
  • the amount and substantiality of the part used; and
  • the effect of the use upon the potential market for, or value of, the copyright material.

A more extensive (non-exhaustive) list of illustrative purposes than appears in the US statute is also recommended for inclusion. It covers:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting news;
  • professional advice;
  • quotation;
  • non-commercial private use;
  • incidental or technical use;
  • library or archive use;
  • education; and
  • access for people with disability.

In the context of the ongoing EU consultation it is especially interesting to see a set of recommendations that try to combine the advantages of a fair use approach (flexibility and adaptability to new technological developments) with the advantages of an approach that relies on exceptions for certain clearly defined types of use (legal certainty for users that fall into these categories).

A number of the already published responses to the EU copyright consultation are suggesting a similar approach for Europe. These include the response by Copyright4Creativity (to which Communia has contributed) but also the responses by Europeana and by a number of Dutch cultural heritage institutions.

While we are waiting for the next steps of the European copyright reform process, the report by the the Australian Law Reform Commission, which draws on the outcomes of a similar public consultation, shows that a fair use approach certainly has its merits.

Calculating the Public Domain

Many people recognise the value of works which are in the public domain and may even be familiar with many initiatives that provide access to public domain works (such as the Internet Archive, Wikimedia Commons, Project Gutenberg, etc). Yet, many people do not have a very clear conception of what the public domain is or why it is important.

New digital technologies make it possible for the public to access a vast quantity of cultural and historical material. Much of this material is in the public domain, and ongoing digitisation efforts mean that much more public domain material (in which copyright has expired) will be made available for the public to enjoy, share, and reuse.

However, it is often difficult to determine whether a work has entered the public domain in any given jurisdiction, because the terms of copyright protection differ from country to country. And  people are sometimes unclear about what can or cannot be done with works in the public domain. Copyright laws are complicated, and for the layperson it may not be clear how they apply in relation to a specific work. Though there are many international and multinational copyright agreements and copyright organisations, the exact details of copyright law vary from one country to another. Different countries have different legal systems and traditions – and copyright laws reflect these differences. Hence, given that works enter the public domain under different circumstances depending on the country, oftentimes the status of an individual work cannot be universally established. Rather, it needs to be evaluated on a case-by-case basis for every jurisdiction.

In order to make public domain determinations a less daunting task, the Open Knowledge Foundation has been working on the development of the Public Domain Calculators (http://publicdomain.okfn.org/calculators/) – a tool that enables people to determine the copyright status of a work (in the public domain, or not), thus helping users realize the value of artworks from the past.

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Preserving the Public Domain

Copyright Week provides a timely opportunity to reflect on Communia’s mission to preserve the public domain and our common heritage against copyright extension, misleading attempts to privatize public domain works, the shrinking of users’ rights, and the general trend in extending the scope of copyright in ways detrimental to the production of culture and knowledge.

Communia began as a European Union-funded research network, consisting of an initial group of 50 researchers, practitioners and activists, and led by Juan Carlos De Martin. Communia was joined by non-European institutions in order to study the public domain at large, and also related topics such as open licensing, copyright exceptions and limitations, orphan works, and open data. Unusually, the Communia project produced a piece of work not foreseen in the original grant agreement, the Public Domain Manifesto. The Manifesto is an emblematic text stating that the public domain, the obverse of copyright, is a wealth of works which are difficult to identify and to define. The Manifesto proclaims, Public Domain is the rule and that copyright is the exception. 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.

Creative Commons comes out in support of copyright reform

Today Creative Commons (CC), the US non-profit that publishes the Creative Commons licenses (and Communia Member) has published a statement in support of copyright reform. This step comes after a year long discussion on how Creative Commons, which has traditionally defined itself as a neutral steward of the CC Licenses, should relate to ongoing discussions about reforming copyright in various countries around the world.

The statement issued by CC makes it clear that the success of the CC licenses should not be used as an argument that current copyright legislation is flexible enough since it enables voluntary licensing schemes like Creative Commons:

Creative Commons (CC) has enabled a new approach to copyright licensing over the last ten years. CC licenses facilitate novel social, educational, technological, and business practices, and support productive relationships around networked knowledge and culture.

We are dedicated stewards of our licenses and tools, and we educate users, institutions, and policymakers about the positive benefits of adopting CC licenses. Our licenses will always provide voluntary options for creators who wish to share their material on more open terms than current copyright systems allow. But the CC vision—universal access to research and education and full participation in culture—will not be realized through licensing alone.

Around the world, numerous national governments are reviewing or revising their copyright law. Some proposed revisions would broaden the scope of uses of copyrighted works permitted without the rightsholder’s permission. In response, it has been suggested that the very success of CC licenses means that copyright reform is unnecessary—that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.

Our experience has reinforced our belief that to ensure the maximum benefits to both culture and the economy in this digital age, the scope and shape of copyright law need to be reviewed. However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.

More background information on the statement can be found in this blogpost on the Creative Commons 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

European Parliament Approves Updated PSI Directive

Yesterday, the European Parliament formally adopted the updated directive on the reuse of public sector information. The announcement confirms the draft changes made to the directive in April of this year. Some notable changes (see here for a more comprehensive breakdown of the changes):

  • libraries, museums, and archives are now be covered under the directive

  • all legally public documents are subject to reuse under the directive

  • any charges are be limited to marginal costs of reproduction, provision and dissemination

  • documents and metadata are to be made available for reuse under open standards and using machine readable formats

European Commission Vice-President Neelie Kroes praised the adoption of the new rules on open data:

[T]o make a real difference you need a few things. You need prices for the data to be reasonable if not free – given that the marginal cost of your using the data is pretty low. You need to be able to not just use the data: but re-use it, without dealing with complex conditions [...] We are giving you new rights for how you can access their public data for re-use, but also extending rules to include museums and galleries. That could open up whole new areas of cultural content, with applications from education to tourism. Indeed, Europeana already has over 25 million cultural items digitised and available for all to see – with metadata under an open, CC0 licence.

The Communia Association has been keenly interested and involved in seeing public sector data freed for widespread use by making it broadly available in the public domain. In January 2012 we released a policy paper with suggested changes to the PSI directive. Communia is pleased to see that cultural heritage institutions are included under the scope of the amended directive. Another positive aspect of the new reuse directive is the narrowing of the language around acceptable licensing for public sector information through the removal of text encouraging the development of additional open government licenses. At the same time, the Commission has not clarified what should be considered a “standard license,” thus there is an ongoing concern potential for Member states to create diverging and potentially incompatible license implementations. And, the EU lawmakers chose not to address the Communia recommendation of explicitly including public domain content held by libraries, museums and archives under the reuse obligation of the amended directive. But all in all, the updated directive is a step in the right direction.

The new directive will be implemented by Member states over the next two years. In the interim, the Commission will be looking for guidance on licensing issues (among other things) from EU-funded projects such as LAPSI 2.0. Communia is an active member in the LAPSI group. LAPSI will be developing PSI licensing guidelines and good practices as a deliverable to the Commission.

Research sector, SMEs, civil society groups and open access publishers withdraw from Licences for Europe dialogue on text and data mining

COMMUNIA, along with several other representatives from the research sector, has withdrawn from the Licences for Europe dialogue on text and data mining due to concerns about the scope, composition and transparency of the process.

A letter of withdrawal has been sent to the Commissioners involved in Licenses for Europe explaining the reason that these stakeholders can no longer participate in the dialogue and the wish to instigate a broader dialogue around creating the conditions to realise the full potential of text and data mining for innovation in Europe:

We welcomed the orientation debate by the Commission in December 2012 and the subsequent commitment to adapt the copyright framework to the digital age. We believe that any meaningful engagement on the legal framework within which data driven innovation exists must, as a point of centrality, addressthe issue of limitations and exceptions. Having placed licensing as the central pillar of the discussion, the Licences for Europe Working Group has not made this focused evaluation possible.

Instead, the dialogue on limitations and exceptions is only taking place through the refracted lens of licensing. This incorrectly presupposes that additional relicensing of already licensed content(i.e. double licensing) – and by implication also licensing of the open internet – is the solution to the rapid adoption of TDM technology.

This approach also undermines the considerable work that has been done in Europe to increase the amount of Open Access content available and encourage its exploitation. We are concerned, therefore, that our participation in a discussion that focuses primarily on proprietary licenses could be used to imply that our sectors accept the notion of double licensing of as a solution. It is not. We firmly believe that the right to read is the rightto mine.

Furthermore, we would point to the urgent need to be competitive with the United States and the high‐tech economies in Japan and South Korea, where legal barriers to TDM are far lower precisely because of the existence of copyright limitations and exceptions there.

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