CJEU ruling in Doke & Soulier case emphasizes the need for a real solution to the out-of-commerce problem

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Universal access to out of commerce works now!
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Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.

The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.

At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement  casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.

Can ECL still provide a solution for out-of-commerce works?

Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights. Continue reading

EVENT Copyright reform: Unlocking copyright for users?

Christus slaapt aan boord van het schip tijdens de storm
European Parliament, September 8
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We happily invite you to the event Copyright Reform: Unlocking copyright for users? that will take place on September 8 in Brussels. The event is hosted by MEP Therese Comodini Cachia and MEP Carlos Zorrinho, and co-organised by COMMUNIA and EDRi.

Join us to discuss key aspects of the current EU copyright reform including the freedom to use copyrighted works (exceptions and limitations) as well as some of the failures of the existing legal framework (copyfails). After the event we invite you to lunch in Jan 3q Brasserie.

Copyright Reform: Unlocking copyright for users? – agenda

11:15 – 11:20      Introduction
Anna Mazgal, Communia

11:20 – 11:25     Welcome
MEP Therese Comodini Cachia (EPP)

11:25 – 11:35      How to understand the L&E practice better?
Launch of copyrightexceptions.eu – Maarten Zeinstra, Kennisland

11:35 – 11:45     What doesn’t work?
The #copyfails and ways out of the copy mess – Diego Naranjo, EDRi

11:45 – 11:55     What works?
Presentation of the Best Case Studies – Teresa Nobre, Communia

11:55 – 13:00    Questions and discussion
facilitated by Anna Mazgal, Communia

13:00 – 13:05   Commentary
MEP Carlos Zorrinho (PASD)

13:05 – 13:15   Closing remarks
MEP Therese Comodini Cachia (EPP)

13:15 – 14:00   Lunch
Brasserie Jan 3q Continue reading

How to #fixcopyright with a great copyright limitation? A recipe for lawmakers

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With the Best Case Scenarios for Copyright series we have proved that copyright has a brighter side for users. For satire and critique, in teaching, research and journalism, even while preserving memories of beautiful spaces – copyright exceptions help artists, audiences, students, and tourists alike benefit from access to culture and education.

What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.

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Download the Best Case Scenarios #fixcopyright poster

So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.

We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:

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The right to think is the right to quote – #fixcopyright with wide quotations exception!

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The right to quote is a pivotal element of science, study, critique, and art. By evoking somebody else’s words and creations we are able to enter into an intellectual dialog that is a foundation of our culture. Quotations substantiate scientific discourse and discovery of new knowledge. They are used widely in memes that have become a signature feature of social media.

Within the Best Case Scenarios for Copyright series, we present Finland as the best example for quotations. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Quotations in Finland legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Quotations

Country:  Finland

04 - Quotations Share

What is a quotation exception?

  1. A quotation exception to copyright refers to citations or other uses of protected works as a way to support intellectual creation.
  2. The exception is justified by the freedom of intellectual creation.

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Wide education exception is the best case scenario to #fixcopyright in EU

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The education exception benefits teachers, students, and researchers who need access to all types of educational and informational resources that are often protected by copyright. This exception balances the right to education with the rights of authors. Maintaining the balance is never easy, and some issues still await their interpretation in Estonia. Still, Estonia enjoys the widest education exception provisions among all EU member states.

Within the Best Case Scenarios for Copyright series, we present Estonia as one of the best examples for education. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Education in Estonia legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Education

Country: Estonia

 

03 - Education Share

What is an education exception?

  1. An education exception to copyright relates to cases where protected works of all types are used for educational purposes or scientific research, both offline and online.
  2. The exception is justified by the public interest of access to education.

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EU, #fixcopyright and adopt the parody exception across Europe

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The parody exception cultivates the French tradition of satire. When the goal is to make people laugh, anybody can freely create a distinctively different mockery of a protected work. This encourages creativity and freedom of expression.

Within the Best Case Scenarios for Copyright series, we present France as the best example for parody. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Parody in France legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Parody
Country: France

02 - Parody Share

What is a parody exception?

  1. Rooted in ancient Greek, the term “parody” includes works of mockery, as well as quoting or referencing an older work in a modern interpretation of it. In France, parody implies adapting or borrowing from a work with the intention of having fun.
  2. The exception is justified by freedom of expression.

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Time to #fixcopyright and free the panorama across EU

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Freedom of panorama is a fundamental element of European cultural heritage and visual history. Rooted in freedom of expression, it allows painters, photographers, filmmakers, journalists and tourists alike to document public spaces, create masterpieces of art and memories of beautiful places, and freely share it with others.

Within the Best Case Scenarios for Copyright series we present Portugal as the best example for freedom of panorama. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Freedom of Panorama in Portugal legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Freedom of Panorama
Country: Portugal

Best Case Scenarios FoP

What is freedom of panorama?

  1. Derived from the German word Panoramafreiheit, freedom of panorama generally refers to the right to visually document works of architecture, sculptures, street art, or other copyrighted works, as long as they are permanently located in public spaces. In Portugal, the exception covers all sorts of documentation—not only photographs and video footage.
  2. The exception is justified by freedom of expression and public interest.

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Best Case Scenarios for Copyright

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EU, time to #fixcopyright
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The copyright was originally meant to promote creativity and innovation, but instead it’s become outdated, overly complicated, and even threatening to some users. Fortunately there are still ways to fix copyright and the EU is in a unique position to do it. The European Commission should look into best examples of national-level solutions and apply them within the current reform. We present several best examples of exceptions and limitations that should benefit citizens in their access to culture and education across Europe.

Time to #fixcopyright and free the panorama across EU

EU, #fixcopyright and adopt the parody exception across Europe

Wide education exception is the best case scenario to #fixcopyright in EU

The right to think is the right to quote – #fixcopyright with wide quotations exception!

How to #fixcopyright with a great copyright limitation? A recipe for lawmakers

Best case scenarios for copyright – full brochure

Reform – the dealmaker or the dealbreaker for citizens?

The current copyright system fails us on so many levels that we know the forthcoming EU copyright reform won’t fix it all. Given the pressure from creative industries to introduce new rights in order to protect their existing business models, the outlook is not very good. Instead of engaging in discussions and actions that would rebalance copyright, users and public interest organizations engage in battles against bad policy ideas.

Best Case Scenarios

It is time to tell the EU that while it plays with the elusive vision of the Digital Single Market by inventing how to tax linking, there are some good solutions that already work in member states. Exceptions and limitations to copyright, so dreaded by many rights holders, do not break the creative industry in Portugal and France or the educational systems of Estonia and Finland. They simply work! To the benefit of creators, artists, students and users, reinforcing creativity, freedom of expression and providing good balance of the interests of rights holders and citizens.

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Fair use and the importance of flexible copyright exceptions

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A universe of limitations to copyright
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It’s Fair Use Week, and organizations and individuals are publishing blog posts, hosting workshops, and sharing educational media about the implementation and importance of this essential limitation to the rights endowed by copyright. Fair use is a flexible legal tool that permits some uses of copyrighted material without permission from the original rightsholder, such as for use in news reporting, criticism, teaching, and other reasons. A fair use is not an infringement of copyright.

The doctrine of fair use sits under the larger umbrella of limitations and exceptions to copyright. These limitations are a necessary check on the exclusive rights granted to copyright holders. Even though fair use has only been adopted by a small number of countries, in Europe there are several exceptions that are central to supporting permission-free uses of copyrighted content for various public interest goals. Both fair use and flexible copyright exceptions serve the same basic purpose, but under different legal landscapes.

We’ve highlighted several commonsense limitations to copyright that should be adopted and standardised throughout the EU. These include exceptions for educational use, for cultural heritage institutions to be able to share out-of-commerce works online, for freedom of panorama, and for audiovisual quotation. It’s important that these exceptions are made mandatory and are fully harmonised across all EU member states.

We’re especially interested in how limitations and exceptions to copyright can support modern education practices. Last month we published a policy paper outlining the requirements for a progressive EU-wide exception to copyright for educational purposes. This exception should 1) address local and cross-border education needs; 2) be mandatory; 3) be neutral with regard to media type, format, and technology; 4) be flexible; and 5) cover all necessary uses provided they are in accordance with fair practice.

As we observe Fair Use Week 2016, we’re happy to see that users around the world are taking advantage of limitations and exceptions—an important safety valve to the rules of default copyright. We’re hopeful that in the coming months the Commission will support the creation of exceptions that balance the interests of rightsholders with the needs of the public who wish to use copyrighted works in creative and educational ways.

 

Summary of 2015 amendments to the Polish Copyright Act

Gdynia, the Polish winter sea
The amendment to the Polish Copyright Act is a step in the right direction, but...
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The summary has been written by Adam Karpiński and the public policy team of Centrum Cyfrowe.

In October 2015, Poland completed the process of amending the national Act on Copyright and Neighbouring Rights. Its aim was to adapt Polish law to the EU requirements:

  1. the Directive 2011/77/EU (the Directive amending the Directive on the term of protection of copyright and certain related rights);
  2. the Directive 2006/115/EC (the Directive on rental right and lending right); and
  3. the Directive 2012/28/EU (the Directive on certain permitted uses of orphan works).

Additionally, the amendment aimed at clarifying or modernising some other rules, including copyright exceptions and the regulation of ‘domaine public payant’ (i.e. royalties for the use of works in the public domain).

The amendment was the result of a consultation and legislative process that lasted over two years. During this time, the Ministry of Culture and National Heritage initiated a series of meetings on key reform issues within the framework of the Copyright Forum (Forum Prawa Autorskiego) and gathered feedback from various entities, including Centrum Cyfrowe. This process was characterised by a strong presence of non-governmental organisations, and generated some heated debates between NGOs and representatives of rights holders. Continue reading