Anne Frank and the Term of Copyright Protection: Why it’s Time to Move from Harmonisation to Unification

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#readannediary
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The text was written by Katarzyna Strycharz. 

Since the beginning of the year there’s been a lot of discussion (and confusion too) about whether the Diary of Anne Frank is now in public domain. Under the normal rules regarding the duration of copyright protection, the work should have entered into the public domain on 1 January 2016. However, there were several unusual circumstances that brought this into question. First, the Anne Frank Foundation announced their plans to list Otto (Anne Frank’s father) as a co-author, which would extend the protection period of the published diary until 2050. Next, due to a transitional rule in Dutch law it became clear that Anne Frank’s original writings would not enter the public domain in 2016 in the Netherlands (and many other EU countries with similar rules). Finally, in early February the Wikimedia Foundation (the organization that hosts Wikipedia and related projects) decided to remove the Dutch-language text of the diary from Wikisource.

On Tuesday 26 April, World Intellectual Property Day, the original, Dutch-language version of ‘The Diary of Anne Frank” will be published online at annefrank.centrumcyfrowe.pl. With this publication of the original version of the diary we seek to highlight the absurdly long duration of copyright in the EU, as well as the fact that, contrary to general assumptions, the duration of copyright is still not unified across the EU and the troubling fact of geo-blocking which creates boundaries online.

On the Anne Frank Foundation website we can read that “Anne Frank’s original writings, as well as the original in-print versions will remain protected for many decades”. So, when does the copyright of the diary expire? It seems that the answer varies from country to country, and we’ll try to investigate whether there is somewhere in the EU where the writings of Anne Frank are now in the public domain.

Transitional provisions in the Dutch law

To fully understand the issue at hand, we observe that there are actually three versions of Anne Frank’s diary writings. Two versions of her manuscripts (version A and B) were combined into the book (version C). This book is commonly known as the the Diary of Anne Frank, and was published in 1947.

As we have previously discussed, version C was compiled by Otto Frank and thus is still protected by copyright 70 years from the time of his death in 1980. But in the case of manuscripts (version A and B) there is no doubt that Anne Frank was the sole author. As we can read  in the statement of the Anne Frank Stichting (who runs the Achterhuis in Amsterdam)“Otto Frank is not the co-author of the original diary writings of Anne Frank”. The same is confirmed by the Anne Frank Foundation (who own the copyrights in Anne’s work), which claims that “copyrights to Anne Frank’s original texts originally belonged to the author, Anne Frank herself”.

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Page from ‘De Dagboeken van Anne Frank”, published by the Dutch Institute for War, Holocaust and Genocide Studies (2001 edition), showing the three versions (from top to bottom A, B and C) of the 9 november 1942 entry in Anne Frank’s diary.

In the Netherlands copyright lasts for 70 years after the death of the author. And even though Anne Frank was killed in 1945, this doesn’t mean that the A and B versions of her diary are in the public domain under Dutch law. This is because the full manuscripts were first published in 1986, and the rule at that time said that works which were first published posthumously are protected for 50 years after the initial publication.

The 2013 Dutch copyright act implementing the 1991 term directive contained transitional provisions stipulating that rights which existed under the previous law continue to exist. This means that versions A and B of the Frank diary will remain under copyright in the Netherlands until 1 January 2037 (50 years after the 1986 publication).

Continue reading

COMMUNIA response to IPRED consultation

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enforcement of copyright must not curb creativity
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Last week COMMUNIA submitted its response to the European Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights (IPR).

We believe that the existing Directive fails to adequately address the varying types (and by extension, impact) of activities that would technically constitute copyright infringement. This is particularly worrying in the case of online infringement, where many violations occur due to unconscious actions by internet users who are not familiar with complex copyright rules. To be justly enforced, the rules should take into account the fact that there are many forms of incidental or relatively harmless forms of infringements today. The law should weigh the seriousness and impact of these minor infringements when deciding on enforcement measures and damages.

Excessive enforcement of copyright against everyday activities must not curb creativity, freedom of expression, and innovation.

From the perspective of internet users, there is no need to revise the Directive in order to strengthen its enforcement provisions. If anything is to be changed, it should be those provisions that support a better balance between the interests of consumers and the protection of the rights of content creators. The following changes should be considered:

 

  1. Ending both civil and criminal prosecutions of citizens for non-commercial file sharing, and withdrawing from prosecuting the creators of derivative works who produce non-commercial remixes. In addition, criminal penalties for violations of intellectual property rights by individuals should be minimized.
  2. Introducing mechanisms for safeguarding fair use and the public domain, including a ban on direct contractual restrictions on access and use of these materials, or of using digital rights management or other technical mechanisms to prevent citizens from exercising their rights under the law.
  3. Avoiding the situation where ISPs or hosting services are forced to filter content based on the orders imposed by civil courts attempting to enforce intellectual property rights, contrary to the provisions of Directive EC / 21/2000 (“the E-Commerce Directive”). There should not be any involvement of intermediaries other than the notice and takedown rules already in place under the E-Commerce Directive. As highlighted in our answers above, these rules already negatively impact internet users because they do not adequately provide users the ability to file counter notices. The ability of users to oppose and counter unjustified takedowns needs to be strengthened, and rights holders need to be required to take into account exceptions and limitations to copyright before filing notice and takedown requests.

We will continue to monitor the outcomes of this consultation. We’re curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu.

Open letter to the Commission: Focus on reforming copyright instead of curtailing internet freedoms

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Reform copyright, don't break the internet!
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In the ongoing reform of copyright, the European Commission has presented a conservative approach . There are some alarming ideas being raised, such as ancillary copyright and broadening the scope of internet intermediaries’ liability. If these concepts are translated into policy, it would make copyright even more complicated to understand and the internet a less free place. The reform discussions so far look neither progressive nor adjusted to users’ needs. This worries Communia and other organisations that serve the public interest.

COMMUNIA is one of the signatories of an open letter on copyright reform sent today to the European Commision. Various civil society organizations and representatives of consumers, businesses, creators, distributors, broadcasters, and public institutions voice their support for a more ambitious reform that is fit for the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication, and access to knowledge.

The letter underlines the notion that online platforms such as search engines and aggregators should not be required to monitor content submitted to their platforms. Even more importantly, they should not be held responsible for blocking links to websites that are accused of hosting illegal content or providing access to content made available illegally. From the letter:

We ask you now to deliver an ambitious reform that is fit for purpose in the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication and access to knowledge.

What does “ambitious copyright reform” mean to COMMUNIA? We advocate for policies that strengthen and expand the public domain and increase access to and re-use of culture and knowledge. We advocate for using Creative Commons licences, enhancing and harmonizing copyright legislation, securing users’ rights in education and culture, and introducing new exceptions to copyright, such as for text and data mining. The Commission needs to hear the voices of organisations and individuals supporting the public interest. The Commission should give copyright the modernisation it deserves by enabling innovation and the sharing of culture—not by adding new layers of protection and complexity to already complex system.

#Stopgeoblocking: Make the internet less broken

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Geoblocking breaks the Digital Single Market
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BEUC, the European Consumers Association, has just launched a campaign against geo blocking. COMMUNIA has been using this term mainly in order to refer to the practice of limiting access to copyright protected content – such as films or music – to specific national markets. This prevents internet users from outside of that market to access the content in question which, in our opinion, is not coherent with the expectations of internet users and the idea of a EU Digital Single Market. However, the problem is not limited to access to works protected by copyright. As illustrated by the campaign video released by BEUC the idea of providing different services to people based on their nationality is fairly ridiculous:

You can find out more about the practice of geo-blocking and why it needs to end as soon as possible in this factsheet (pdf) and in BEUC’s factsheet on the issue. Needless to say we wholeheartedly agree with the analysis provided by BEUC. From the perspective of European internet users, ending these unfair business practices will be one of the key outcomes that the European legislator needs to achieve in order to deliver on the promise of a Digital Single Market.

More ancillary copyright madness: French proposal to tax websites for using image thumbnails to illustrate search results

Boudewijn van Heusden and his Wife Sophia Receiving Homage from the Legate of King Edmund
Open letter against ancillary copyright
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We spend a lot of effort pointing out that additional copyright, like rights for specific groups of rights holders, are a problematic concept that has potential to cause a lot of damage to the Public Domain. Most of our coverage has focused on efforts to establish an ancillary copyright for press publishers. We have seen the introduction of such rights first in Germany and then in Spain in recent years, and in both cases the legislators have failed to reach their objective. Especially in In Spain the newly introduced rights have caused so much collateral damage that the news publishers themselves (who were supposed to be the beneficiary) have come out against the concept of an ancillary copyright.

Part of the argumentation why ancillary copyrights are a bad idea has been the fact that they have the potential to limit the access to information, and thus damage the Public Domain. Trying to boost specific business models by adding more types of rights to an already overly complex copyright system is the wrong answer to the challenges posed by the rise of the internet. New rights do not only affect the rights holders they are intended to help, but have a much wider impact on how we access information and culture.

This point is once more illustrated by a recent attempt in France to establish a new right that would require search engines and indexing services to pay royalties for the use of thumbnail images of copyright protected works. According to French proposal, which has been approved by the French Senate, this new right would be managed by one or more collecting societies, regardless of the intention of the rightholders whether to be financially compensated for the use of their works by search engines.

As with the Spanish ancillary copyright for press publishers, the compulsory collective management of this right means that it would also apply to works that have been made available by their creators under Creative Commons licenses, severely limiting the ability of creators to contribute to the Public Domain. The French proposal would also be very likely to affect online resources such as Wikimedia Commons or Europeana, even though these platforms are based on voluntary sharing of images.

This is why we joined forces with 14 other organisations and expressed concerns in open letters to the French Minister of Culture (en/fr) and the rapporteur of the Assmblée Nationale (en/fr )for the ‘Liberté de la création, de l’architecture et du patrimoine‘ law which contains the proposal. The letters warn that:

The current proposal […] will impact many online services and mobile apps, from search engines to creative commons models and Europeana. Money would be collected arbitrarily and without any realistic way of redistributing it accurately. Basically, every day activities of online users, such as posting, linking, embedding photos online, would be subject to a cloud of legal uncertainty.

It would isolate France in the European Union, at a time when courts across Europe have made clear these were lawful activities under national, European and international laws. It would isolate France globally, as a country where using images online would be subject to restrictive and unworkable practice.

We hope that the French legislator will have the wisdom not to introduce this new right. This would send a strong signal that introducing new exclusive rights in an already too complex European copyright framework is not a suitable instrument to support specific business models in sectors negatively affected by the internet. We are convinced that the answer to the challenges posed by digitisation in certain sectors does not lie in the creation of new rights, but rather in a re-balancing of the existing copyright rules.

The EU wants your perspective on “intellectual Property enforcement”

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Make your voice count
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The European Commission is currently holding a consultation on the 2004 directive on the enforcement of intellectual property rights in the online environment (the so called IPRED directive). As the name suggests, this directive deals with the enforcement of copyright – including issues such as injunctions against internet service providers, internet blocking, and warning letters to individuals accused of unauthorised peer-to-peer filesharing. These issues have been hugely controversial in the past and there is considerable pressure from rights-holders to further expand the way they can enforce rights.

This is of course only one side of the story, as we have seen over and over again how enforcement actions are abused, chill speech, and limit access to information. The consultation is of great importance not only to those interested in copyright, but to anyone using the internet. The consultation covers how private companies should (or not) be involved in law enforcement online – for example by removing content uploaded by a user that includes any copyrighted material.

It also covers the range of internet intermediaries that could or should be subject to legal obligations to undertake law enforcement activities. Imposing extra requirements on internet intermediaries limits them in the types of services that they can offer to users, and can make it more difficult for non-professional creators to find an audience for their creations and/or opinions.

It is important that the Commission hears from as many internet users and creators as possible. The consultation consists of 5 different lists of questions for different types of respondents. Our friends at EDRi have built an online tool for answering the Commission’s questions. EDRi also provides guidance and advice for potential responses from particular audiences, including citizens, consumers, and civil society organisations.

If you regularly create content that you share online (such as photos, videos, and writing) you can also consider answering the question aimed at rightsholders: it’s crucial to show the Commission that copyright (enforcement) rules cannot be based solely on the entrenched “needs” of large commercial rights holders. Instead, the rules must reflect the reality where countless numbers of internet users create (and wish to share) copyright-protected works on a regular basis.

You have until the 7th of April to submit your responses via the EDRi answering tool.

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

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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.