• 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.

Copyright reform?

Hugenholtz and Hargreaves start their policy brief by looking at the current situation in Europe, and they do not like what they see: Not only do they consider Europe’s copyright framework to be out of touch with an economy that is shaped more and more by the impact of digital technologies, they are also skeptical about what currently passes for copyright reform in the EU:

In December 2012, the European Commission vowed “to ensure that copyright stays fit for purpose in this new digital context” after a key orientation debate convened by President Barroso. […] As practical steps, the Commission offered two parallel tracks of action. The first, already underway, is a “stakeholder dialogue” to address six issues […]. A second track of work is to arise from a series of market studies, impact assessment and legal drafting work “with a view to a decision in 2014 whether to table legislative reform proposals.”
How does this emerging European approach to reform look in a global context? The answer is it looks rather cautious, given the continued pace of technological change and the increasing indications that other countries are ready to pursue more rapid and more radical reform. History also suggests that Europe will struggle to achieve the political momentum needed to deliver even the modest and piecemeal change of the type currently under discussion.

We have already pointed out the flaws of the Licenses for Europe approach here, so we could not agree more. While the Commission directs critics of the stakeholder dialogue to the parallel review of the EU legal framework that the Commission is currently undertaking, there is very little reason to believe that this will result in any substantial reform agenda. In this situation Hugenholtz and Hargreaves see an urgent need for reform that is both effective and can be implemented within the existing European and international frameworks:

The danger is that Europe’s copyright framework increasingly becomes a regime which meets no-one’s needs and expectations. If that happens – or if, as some suggest, it has already happened – perhaps there is an opportunity to mobilise stakeholders from opposing camps around the following six pillars of reform:

1. A legal framework which makes sense to consumers and citizens and which therefore encourages and enables people to respect the law.
2. An approach to competition in digital markets which focuses upon consumer welfare, achieved through the working of open and contestable markets.
3. A primary ambition to support business innovation rather than aiming mainly to protect existing business models in the interest of contributing to the maximum extent possible to the growth of European productivity, economic output and jobs.
4. A regime that both underpins and is part of a digital single market, without which Europe’s digital economy will continue to underperform relative to North America and, increasingly, Asia and other territories.
5. An approach to enforcement of the law which protects the interests of authors and rights holders, but only to the extent to which this is supported by economic impact analysis, recognising that copyright exists primarily to generate effective economic incentives for authors and other creators. Strong enforcement activity should be directed against those aiming to make commercial returns from business models based upon clearly illegal activities.
6. An adaptive legal framework which offers flexibility in the face of further technological change.

Seven suggestions for copyright reform

Based on these six pillars the two professors develop a menu of policy options for European lawmakers. The menu consists of seven short-term interventions that would fix specific aspects of copyright legislation across the EU. According to Hugenholtz and Hargreaves, all of these options could be (at least partially) implemented within the 2014–2015 timeframe given sufficient political resolve of lawmakers and stakeholders:

1. Make limitations and exceptions more harmonised and flexible. Make a core set of limitations and exceptions mandatory for all member states, while allowing member states flexibility in applying other limitations and exceptions depending on social and cultural circumstances, or in response to unforeseen technological change.
2. Reduce terms of protection. So they are aligned with the maximum requirements of international treaties in order to promote digital access to cultural heritage.
3. Simplify online licensing across the EU. Remove territorial restrictions to multi-territorial licensing, provide regulatory incentives for setting up public databases of copyright metadata, and permit extended collective licensing.
4. Recalibrate the Reproduction right. Replace the currently technical notion of reproduction by a more normative interpretation that factors in the economic impact of a digital reproduction. If a technical copy has no economic significance, it should not count as reproduction.
5. Simplify legal protection of digital rights management systems. Anti-circumvention protection should apply at most in cases where circumvention is directly connected to copyright infringement.
6. Downsize the database right. Reduce the scope of the database right by limiting it to commercial uses of databases, and expanding limitations and exceptions.
7. Rebalance copyright enforcement. Harmonise the rules on injunctive relief against intermediaries in accordance with the EU Charter, relax the rule of recovery of attorney’s fees, and make abusive copyright enforcement strategies (troll behaviour) unlawful.

In the policy paper the authors go into more detail on these recommendations, including suggestions how they could be implemented. They also argue that all of these options are compatible with the relevant international treaties.

From the perspective of COMMUNIA all of these policy options make sense and substantially overlap with our policy recommendations from 2011. It is good to see these two eminent scholars in the field join forces and put commonsense policy proposals on the table.

It will be interesting to see how stakeholders react to this approach, which focuses on modernising the framework in order to support economic recovery in Europe. If last week’s presentations in Brussels is any indication, representatives of rights-holders will have difficulties positioning themselves vis-a-vis this approach: Uncharacteristic for an event on copyright (reform), no rights-holder representatives were in attendance.

A unified copyright law for Europe?

In addition to the seven policy options above, Hugenholtz and Hargreaves make one other recommendation: To unify European copyright law by replacing all national laws by a single European law. Both professors argue that ultimately a single digital market will lead to a unified European copyright code. Or in the words of Ian Hargreaves, “If you believe in a single digital market you have to ultimately believe in a unified European Copyright Law”. While this is obviously a long term undertaking, it would certainly help to have a real believer in the single digital market to be in charge of Internal Market when the new Commission is formed at the end of next year.

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.

Background

Licences for Europe was announced in the Communication on Content in the Digital Single Market (18 December 2012) and is a joint initiative led by Commissioners Michel Barnier (Internal Market and Services), Neelie Kroes (Digital Agenda) and Androulla Vassiliou (Education, Culture, Multilingualism and Youth) to ‘deliver rapid progress in bringing content online through practical industry-led solutions’. Licences for Europe aims to engage stakeholders in four areas:

1. Cross-border access and the portability of services;
2. User-generated content and licensing;
3. Audiovisual sector and cultural heritage;
4. Text and Data Mining (TDM).

COMMUNIA participated in the first three sessions of the the working group on text and data mining. We and the other organisations who have decided to withdraw from the proces remain committed to working with the Commission on the removal of legal and other barriers to TDM. However, we believe that any meaningful engagement on the legal framework within which data-driven innovation exists must address the issue of limitations and exceptions and as a consequence a review of the 2001 EU copyright directive which is in urgent need of modernisation.

Our withdrawal follows much communication with the Commission on the issue, including a letter of concern sent on the 26th of February and signed by over 60 organisations including COMMUNIA. The Commission response to this letter is available on the LIBER website. More information about the issues surrounding text and data mining in the context of the Licenses for Europe stakeholder dialogue can be found in this background document.

The Compromise text was adopted in early April (to our knowledge, it has not been widely circulated but has been made available online by the Austrian Parliament). The adoption of this text at a rather early stage of the legislative procedure, suggests that a possibility of a conclusion at first reading exists. However, it does not take account of the draft reports released by the Parliamentary Committees a few weeks after. As we highlighted earlier, the opinion drafted by MEP Helga Trüpel for the CULT Committee shares some core arguments with Communia’s policy. The deadline for tabling amendments on the leading Committee’s report (JURI) is June 6th.

It is thus interesting to look more closely at the content of the Compromise text to have a better idea about what the Council would be ready to vote for at the present time of the procedure (more than the Parliament insofar as the guessing about the final parliamentary vote is very uncertain at this stage of the procedure), although new matters of discussion may arise during the amendment and ‘lobbying’ period.

Let’s focus on the main issues raised in our policy paper:

Transparency

From Communia’s perspective, the general availability of information about membership and represented repertoire is essential. The Presidency proposal considers, like the Commission, that CMOs should only be held liable for a limited obligation of information, ignoring the specific needs of a wide-range of users. As highlighted in our policy paper, users are not properly considered, whereas the categories of beneficiaries of such access to information shall be much wider than those listed in Article 18. The rearranging of the corresponding provisions (namely the removal of Art. 18.2) by the Presidency does not improve the flaws of what was originally proposed by the Commission.

It is regrettable that the Directive proposal does not properly distinguish between the needs of users and the needs of the public (as broadly stated under Article 19: ‘Disclosure of information to the public‘). As we pointed out, users have specific needs but shall also be understood widely, beyond the usual contractual parties of CMOs, so that other potential licensees, including developers or any other persons or entities needing to contract with a CMO, can rely on accurate licensing information. ‘Users’ shall also be understood by CMOs as future contractors (even if still part of the ‘public’). This being said, the Compromise text aptly suggests adding standard licensing contracts and standard applicable tariffs as a category information subject to public disclosure (Art. 19).

Open content licenses and ability of rightholders to opt-out of collective management

Although only in a (legally non-binding) Recital, the freedom of rightholders to dispose of their works is expressly stated:

Recital 9: “The rights, categories of rights or types of works and other subject matter managed by the collective management organisation should be determined by the general assembly of members, without prejudicing the right of the rightholder to make such a choice under this Directive. It is important that the rights and categories of rights are determined in a manner that maintains a balance between the freedom of rightholders to dispose of their works and other subject matter and the ability of the organisation to effectively manage the rights” (emphasis ours).

However, the choice of rightholders is bound by what is allowed under this Directive, which is … not much. Indeed, the wording of Article 5 of the proposed Directive on the rights of rightholders, notably as regards their ability to terminate the mandate for the management of their rights with a collecting society or to withdraw from a collecting society is still the same as what was proposed by the Commission. As already highlighted in our policy paper (p. 5), the Commission considers that the freedom of choice of rightholders does not concern their works – which would have allowed them to opt-out of collective management and choose alternative licensing models like open content licenses – but only relates to their ‘rights, categories of rights or types of works and other subject matter‘.

As written in the Commission’s proposal, ‘the Directive should not prejudice the possibility for rightholders to manage their rights individually, including for non-commercial uses‘ (end of Recital 9). However, it is not said how this shall concretely take place for CMO members, whose ‘opting-out’ modalities are still unclear. The strategy that collecting societies have to devise regarding open content licenses, in the face of the growing trend of non-commercial uses and of rightholders’ will to grant non-exclusive licenses on their works, is still unclarified, if not inexistent.

It is worth mentioning that the ability for CMOs members to opt for open content licenses has been recently proposed in France in a national policymaking instrument (the Lescure Report, released earlier this week: see our comments), which acknowledges the importance of allowing an harmonious legal interaction between open licenses and collective management.

Moreover, the said ‘balance’ between the free choice of rightholders for the management of their works ‘and the ability of the [collective management] organization to effectively manage the rights‘ (see Recital 9 cited above) instills the idea that CMOs may claim for the necessity for them to manage all rights for the sake of the certainty of their repertoire. The respect of this ‘balance’ may give rise to litigation between CMOs and their members, thus potentially calling for arbitration (perhaps from the EU Court of Justice which is used to decide on other kinds of ‘balances’ inside the copyright law system).

Although unchanged as regards the ability of rightholders to ‘opt-out’ from collective management, the language of Article 5 now suggests imposing on CMOs an obligation to contract with rightholders. This is most likely motivated by the concerns expressed by some (including the European Parliament) with respect to cultural diversity, to prevent collecting societies from refusing to administer rights in certain works solely on grounds of their cultural origin or limited economic value. Such obligation for CMOs is a good thing for the certainty of repertoire towards users, provided that it is complemented by an obligation to keep track of all the information about the related rights and rightholders, and by an obligation to disclose it accurately to all users and potential users (which is presently not the case as underlined above).

Furthermore, the Compromise proposes to add a reference to ‘the records kept by a collective management organisation (which) should allow for the identification and location of its members and rightholders‘ (Recital 10). If this is not to resolve the ‘orphan works’ issue, it has nonetheless the advantage of setting the responsibility of collecting societies to provide information about the identification and the location of their members.

EU policymaking on collective management of copyright has mainly focused on the need of commercial (music) services for simplified and multi-territorial licenses, which has contributed to the lack of vision on non-commercial uses. Let’s hope that the draft CULT Committee report will help the Parliament adjust its amending proposals on the Directive proposal.

The Lescure Report is a new step in the policymaking on creative content in the digital society in France. Following the presidential elections last year, the new government wanted to induce reflection about the future of the HADOPI system adopted by the former government, and more generally on the protection of national culture on the Internet. The ambition heralded by this mission was big, so were the expectations about the resulting report.

The Report addresses a wide range of issues (the first volume of the Report is about 480 page-long) spanning copyright exceptions, non-commercial sharing, liability of intermediaries, financing models to support culture digitization, digital libraries, online clearing of rights on photographs and copyright enforcement. Among its key proposals, the Report argues for the prolonging of the graduated response, albeit under new conditions and under the responsability of another administrative authority (the HADOPI authority would disappear), as well as a new taxing system targeting telecommunication operators meant to finance the transition of cultural industries to the digital age. Moreover, the Report concurs with conservative views on copyright enforcement and discards the proposals elaborating alternative remuneration systems for rightholders and legalizing non-commercial sharing of copyrighted content. Not surprisingly, it has been criticized for being skewed towards industrial interests and in carrying on the repressive policy against webusers (read the critical view from La Quadrature du Net on the ‘wishful thinking and real dangers’ of the Report).

Despite these flaws, the Report takes account of some core considerations on the public domain and open licenses (as reported here), which represents a positive step considering that these issues have been overlooked for a long time by copyright national (and international) policymaking. Among its 80 proposals, the Report highlights the necessity to ‘protect and valorize the digital public domain’ (pp. 38 & 447 et seq) and contains proposals in line with some of Communia’s policy recommendations:

• A positive definition of the public domain

The Report proposes to insert a positive definition of the public domain in national copyright law, as recommended by the Public Domain Manifesto (cited by the report) and Communia at the international and European levels (see our Positive Agenda for the Public Domain).

Although the Report focuses on the national context, it aptly refers to the international framework and to the WIPO working agenda addressing the public domain issue. As WIPO Observer, Communia has had the opportunity to express its views during the last WIPO/CDIP meetings (see our reports here and here) and to call upon such positive definition of the public domain into lawmaking.

• Towards clarification of the public domain status of works

In order to improve the visibility of public domain works, the Report argues in favor of the development of open registries of metadata and for the use of technical measures like the ‘Public Domain Mark’ developed by Creative Commons. These proposals are in line with our recommendations.

• Preventing the privatisation of the public domain

The Report warns against the ‘re-appropriation phenomenon’ and the claims for new layers of rights on digitized content (like the rights claimed for the creation of databases), thus restricting the scope of the public domain. The Report expressly concurs with Communia’s recommendation stating that what is in the public domain should stay in the public domain after digitization (see our Recommendation #5 and pp. 452-453 of the Report).

Further, the Report points out the misuse of technical protection measures restricting the use of public domain content. It suggests strengthening the regulation on technical protection measures to look more closely at their interaction with works belonging to the public domain, but also with software and measures of rights management information. However, these good intentions are likely to go unheeded, as highlighted by the French organization on free software April).

• Conciliating open access and valorization of public domain works

Digitization agreements between cultural heritage institutions and private enterprises should not lead to the privatization of the public domain. The Report recommends that public interest organisations reaching such private-public partnerships should promote large and open access to public domain works and restrict exclusivity provisions. Unfortunately, reality has shown that public institutions do not hesitate to enter into exclusive agreements with the private sector to the detriment of public access to the cultural public domain (see our press-release denouncing the agreement signed by the French national library BNF).

The Report invites to ‘replace the narrow vision privileging financial interests with a more complex economic and social approach’ (p. 453). More especially, it argues for the promotion of added-value services which develop on raw data and provide financial resources partly compensating digitization costs without restricted access to content. Such standpoint tends to acknowledge the economic potential of innovative services building upon open data and public domain content, which goes in the right direction.

• Open licenses

The Report contains further recommendations on open licenses, which has been welcomed by Creative Commons France. More particularly, it encourages collective management organisations to devise solutions allowing for the coexistence of open licenses, notably by allowing the members of collecting societies to opt for such licenses (Recommendation #77). This is a significant point that we have raised in our comments on the upcoming EU regulation on the collective management of copyright.

• Voluntary dedication of works to the public domain

The Report also argues in favor of the voluntary dedication of works to the public domain by their rightholders (Recommendation #76), a principle that we support strongly before WIPO.

• … and ‘orphan works’?

The Report contains interesting measures on the obligation of publishers to commercially exploit works online (pp. 69 of the Report), thereby seeking to reduce the phenomenon of works whose rightholders cannot be identified or located (‘so called ‘orphan works’). It is nonetheless disappointing to see that the Report does not tackle the issue of ‘orphan works’ properly and mistakenly relies on the proposals pushed forward by national publishers with respect to ‘(commercially) unavailable works’ (according to a national law adopted last year on unavoidable literary works, which has been heavily criticized as disadvantaging authors). Whereas the EU adopted a Directive on ‘orphan works’, the report misses the opportunity of assessing concretely the impact of this EU regulation in national law.

——

The Report has likely taken account of some of the arguments made during the hearing process undertaken during the past months, notably those from Mélanie Dulong de Rosnay (Co-Founder and President of Communia), and Lionel Maurel (aka @calimaq, Co-Founder of the French organization SavoirsCom1, who disclosed some legal proposals to strengthen the public domain on a national level).

The question is now whether the French government will be able to arbitrate wisely amongst all the arguments put forward in the Report. The public domain being adjacent to other kinds of measures, such as those promoting graduate response solutions, this creates a strange mixture in which policymakers and citizens might have trouble seeing clear. What is the benefit for the digital public domain to be exposed in such a policymaking instrument? The future will tell.

At this stage the draft opinions written by the rapporteurs for the four non-leading committees have been published. These opinions take the form of amendments proposed to the text of the directive (sometimes these are accompanied by short justifications).

In our policy paper from January we identified two main issues with the proposed directive: The first one concerns the transparency of repertoire information that has to be provided by collective management organisations and the second concerns the relation between collective management and open content licenses. In our analysis the proposed directive fails to sufficiently address these two issues.

We are happy to see that among the four published opinions the draft opinion of the Committee on Culture and Education authored by Helga Trüpel shares the concerns voiced in our policy paper. In the introduction of the document she writes:

The Rapporteur would like to stress that rightholders should have the possibility to make their works available under an open content license of their choice, for instance under Creative Commons, without necessarily opting out from the collective management system.

Furthermore, the Rapporteur would like to give even more flexibility to rightholders in the management of the rights. CMOs should provide accurate repertory information, in particular for works falling into the Public Domain. CMOs should ensure that the information in respect of the works whose term of protection terminates is accurate and regularly updated, in order to exempt such works from licensing and avoid claims to be enforced by CMOs in that regard.

In the following we take a closer look at the relevant amendments contained in the draft opinion of the Committee on Culture and Education:

Use of open content licenses by members of collective management organisations

While recital 9 of the Commission proposal contains language (‘Finally, this Directive should not prejudice the possibilities of rightholders to manage their rights individually, including for non-commercial uses.’) that clearly indicates that the directive is intended to create more flexibility for members of collective management organisations to exercise their rights individually, the actual provisions of the Commission proposal are somewhat ambiguous in this regard. Given this our policy paper suggests:

…to modify Article 5. This provision currently gives right holders the right to authorise (and terminate such authorisation) the management of ‘rights, categories of rights or types of works and other subject matter of their choice’. By changing this language into ‘rights or categories of rights or works or types of works and other subject matter of their choice’, authors would be effectively enabled to remove some works from the collective management system. This would allow them to make these works available under an open content license of their choice…

In line with this proposal the draft opinion contains three amendements (30, 31 and 32) that, if adopted, would allow rights-holders to remove individual works from from the collective management system. That would enable them to manage these works themselves, giving them the ability to make them available under the terms of open content licenses, including those that allow for the royalty-free commercial use of the licensed works.

In addition the draft report contains an amendment (29) that introduces a new sub paragraph 2 a in Article 5 (‘Rights of rightholders’). This amendement would give members of collective management organisations the right to grant free licenses for non-commercial uses of their works:

Rightholders shall have the right to grant free licences for the non-commercial use of their works and rights. In this case, rightholders shall inform in due time the collective management organisations authorised to manage the rights of such works that such a free license has been granted.

The addition of this sub paragraph is very welcome as it allows members of collective management organisations to make use of some open content licenses (those that only allow for non-commercial uses of the licensed work) without having to remove these works from the collective management system. Having this possibility means that members of collective management organisations can enjoy the benefits of collective rights management (effective collection for royalties form large groups of commercial uses) as well as the flexibility offered by non-commercial open content licenses.

Transparency

With regards to transparency our main concern has been that the measures intended to
increase the transparency with regards to the information about collective management organisations membership and their repertoire are insufficient. Given this we are happy to see that the draft opinion of the Committee on Culture and Education contains a number of amendments that would increase the transparency of membership and repertoire information.

Amendment 34 proposes a new paragraph 5 a in Article 6 (‘Membership rules of collecting societies’) that would require collective management organisations to make membership and repertoire information publicly accessible:

Collective management organisations shall make publicly accessible the list of their members and their respective rights or category of rights or works or type of works and other subject matter which the rightholders authorise the collective management organisation to manage, provided that the protection of the personal data of rightholders is preserved.

In addition amendments 61, 62 and 65 add language to articles 18 (‘Information provided to rightholders, members, other collecting societies and users on request’) and 19 (‘Disclosure of information to the public’) of the proposed directive that reiterates the requirement to make available membership lists and information on the managed repertoire through publicly accessible and searchable interfaces. As we had mentioned in our policy paper the last addition is crucial in an environment where automated data processing is fast becoming the norm.

Finally amendment 66 addresses another issue raised in our policy paper, the accurate and timely identification of works that have fallen into the Public Domain. In our policy paper we had suggested that…

…the legislator should give incentives for CMOs to provide accurate repertory information. In particular, CMOs shall ensure that the information in respect of the works whose term of protection terminates – thus ‘falling’ into the Public Domain – is accurate and regularly updated, so that Public Domain works are duly exempted from licensing.

This suggestion is taken up by amendment 66 which proposes to introduce a new paragraph 2 a under Article 19 (‘Disclosure of information to the public’) of the proposed directive:

Collective management organisations shall ensure that, in accordance with point (ab) of paragraph 1, the information on repertoire is accurate and regularly updated. In this respect, they shall particularly ensure that the information concerning the works whose terms of protection terminate is accurate and regularly updated, and made available to the public.

Conclusion

We are happy to see that most of the issues that we had identified are addressed by the draft opinion of the Committee on Culture and Education. The amendments discussed above would significantly strengthen the directive and therefor deserve broad support. If these amendments end up in the final version, the directive would strengthen the rights of authors who are members of collective management organisations with regards to the use of open content licenses. In addition it would strengthen the position of all users of protected works by ensuring the availability of accurate information on repertoires that are represented by Europe’s collective management organisations.

Today, U.S. Register of Copyright Maria Pallante stood before Congress to say: we need a new copyright law. Pallante’s prepared remarks (127 KB PDF) to the U.S. House of Representatives, Subcommittee on Courts, Intellectual Property, and the Internet called for “bold adjustments” to U.S. copyright law.

This is a most welcome aspiration. A strong push for copyright reform is currently occurring around the world through domestic reviews and in international fora like WIPO — coming both from those wanting increased recognition of user rights and those calling for tighter author controls. With the United States one of the leading nations advocating for stronger copyright protection through treaties such as ACTA and the TPP, the international community will be closely observing any movement in U.S. domestic law.

Seal of the United States Copyright Office / Public Domain

In addition to several meaningful reform ideas — including shortening The copyright term itself, alterations to the Digital Millennium Copyright Act, and making revisions to exceptions and limitations for libraries and archives — we’re happy to see that the Register is highlighting the crucial need to expand and protect the public domain. Some of the most compelling work undertaken by Creative Commons and others in the open community has to do with increasing the accessibility and value of the public domain. We hope a more positive public domain agenda can become ingrained into the foundations of U.S. copyright policy. The central question: Can the United States devise a better system for both authors and the public interest in an environment where technology and social norms are increasingly disconnected from an aging copyright law?

Pallante said, “[A]uthors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.” However, there is no doubt that public copyright licenses are offering a substantial and effective counter to some of these pains — even noted by Ms. Pallante in her longer lecture at Columbia University titled The Next Great Copyright Act (337 KB PDF), “[S]ome [authors] embrace the philosophy and methodology of Creative Commons, where authors may provide advance permission to users or even divest themselves of rights.” CC licenses and public domain instruments are right now helping alleviate frustration with copyright for all — individuals, businesses, institutions, governments — who opt in to using public licenses and licensed works.

Indeed, public licenses are easy-to-use tools for communities that wish to share their creativity on more flexible terms. And when millions of motivated creators share under public copyright licenses like CC, they create great and lasting things (hello Wikipedia). Public copyright licenses shine brightly in the light of Pallante’s telling reflection: “If one needs an army of lawyers to understand the precepts of the law, then it is time for a new law.”

At the same time, the existence of open copyright licenses shouldn’t be interpreted as a substitute for robust copyright reform. Quite the contrary. The decrease in transaction costs, increase in collaboration, and massive growth of the commons of legally reusable content spurred on by existence of public licenses should drastically reinforce the need for fundamental change, and not serve as a bandage for a broken copyright system. If anything, the increase in adoption of public licenses is a bellwether for legislative reform — a signal pointing toward a larger problem in need of a durable solution.

We and the rest of the international community are looking forward to seeing what Pallante and Congress have in mind when they continue the discussion after today. In her oral testimony, Ms. Pallante said, “Copyright is about the public interest.” We hope that the public interest has a seat at the table, with room both for open content licensing and positive legislative reform. The existence of CC licenses does not limit the need for reform. Open licenses help forward-thinking people and institutions to live and thrive in the digital age now, and illuminate the roadmap for beneficial reform to come. Let us begin.

Unfortunately the first meeting of this working group which took place on the 4th of February in Brussels did not live up to the expectations raised by the Commission’s earlier announcement. It quickly became evident that the stakeholder dialogue is based on a flawed assumption (‘more licensing will bring copyright in line with the requirements of the digital economy’) and that the process was designed to prevent a serious discussion about how to unlock the potential of scientific text and data mining.

Given this the participating organisations representing academia, researcher community and civil society (including Communia), have decided to make these concerns public in the form of an open letter to the Commissioners Barnier, Geoghegan-Quinn, Kroes and Vassiliou (re-published at the end of this post). The letter which was published today raises a number of concerns that need to be addressed before the stakeholder dialogue on text and data mining can continue.

Chief among these concerns is the belief that in order to have an open discussion about the reform, possible solutions cannot be limited to licensing. From our perspective text and data mining cannot be solved by re-licensing texts to libraries, researchers or the public. What Europe needs is clarity that text and data mining works that are lawfully available does not require permission by rights holders. A stakeholder dialogue that simply declares this position off limits can hardly be called a dialogue at all. In the case of Public Domain content, there is a risk that a focus upon licensing will lead to unlawful re-licensing of content that is out of copyright.

In addition the whole process needs to become more transparent and needs to include all stakeholders (including academics and the Commissions own Research and Innovation Directorate General, which is currently being limited to attend as an observer).

The open letter has been published in the hope of getting the Commission to change the terms under which the stakeholder dialogue is being conducted. Should this not be the case, Communia and the other organisations that have signed the letter are very likely to step away from the dialogue. As the list of supporting signatories shows this is supported by a growing number of academics who are rightfully concerned about the prospects for conducting data driven research in Europe.

Dear Commissioners Barnier, Geoghegan-Quinn, Kroes and Vassiliou,

“Licences for Europe – A Stakeholder Dialogue” Working Group 4: Text and Data Mining

We write to express our serious and deep-felt concerns in regards to Working Group 4 on text and data mining (TDM). Despite the title, it appears the research and technology communities have been presented not with a stakeholder dialogue, but a process with an already predetermined outcome –namely that additional licensing is the only solution to the problems being faced by those wishing to undertake TDM of content to which they already have lawful access. Such an outcome places European researchers and technology companies at a serious disadvantage compared to those located in the United States and Asia.

The potential of TDM technology is enormous. If encouraged, we believe TDM will within a small number of years be an everyday tool used for the discovery of knowledge, and will create significant benefits for industry, citizens and governments.McKinsey Global Institute reported in 2011[1]that effective use of ‘big data’ in the US healthcare sector could be worth more than US$300 billion a year, two-thirds of which would be in the form of a reduction in national health care expenditure of about 8%. In Europe, the same report estimated that government expenditure could be reduced by €100 billion a year. TDM has already enabled new medical discoveries through linking existing drugs with new medical applications, and uncovering previously unsuspected linkages between proteins, genes, pathways and diseases[2]. A JISC study on TDM found it could reduce “human reading time”by 80%, and could increase efficiencies in managing both small and big data by 50%[3]. However at present, European researchers and technology companies are mining the web at legal and financial risk, unlike their competitors based in the US, Japan, Israel, Taiwan and South Korea who enjoy a legal limitation and exception for such activities.

Given the life-changing potential of this technology, it is very important that the EU institutions, member state governments, researchers, citizens, publishers and the technology sector are able to discuss freely how Europe can derive the best and most extensive results from TDM technologies. We believe that all parties must agree on a shared priority, with no other preconditions – namely howto create a research environment in Europe with as few barriers as possible, in order to maximise the ability of European research to improve wealth creation and quality of life. Regrettably, the meeting on TDM on 4th February 2013 had not been designed with such a priority in mind. Instead it was made clear that additional relicensing was the only solution under consideration,with all other options deemed to be out of scope.We are of the opinion that this will only raise barriers to the adoption of this technology and make computer-based research in many instances impossible.

We believe that without assurance from the Commission that the following points will be reflected in the proceedings of Working Group 4, there is a strong likelihood that representatives of the European research and technology sectors will not be able to participate in any future meetings:

All evidence, opinions and solutions to facilitate the widest adoption of TDM are given equal weighting, and no solution is ruled to be out of scope from the outset;
All the proceedings and discussions are documented and are made publicly available;
DG Research and Innovation becomes an equal partner in Working Group 4, alongside DGs Connect, Education and Culture, and MARKT – reflecting the importance of the needs of research and the strong overlap with Horizon 2020.

The annex to this letter sets out five important areas (international competitiveness, the value of research to the EU economy, conflict with Horizon 2020, the open web, and the extension of copyright law to cover data and facts) which were raised at the meeting but were effectively dismissed as out of scope. We believe these issues are central to any evidence-based policy formation in this area and must, as outlined above be discussed and documented.
We would be grateful for your response to the issues raised in this letter at the earliest opportunity and have asked susan.reilly@kb.nl(Ligue des Bibliothèques Européennes de Recherche) to act as a coordinator on behalf of the signatories outlined below.

Yours sincerely,

Participants:

Sara Kelly, Executive Director, The Coalition for a Digital Economy
Jonathan Gray, Director of Policy and Ideas, The Open Knowledge Foundation
John McNaught, National Centre for Text Mining, University of Manchester
Aleks Tarkowski, Communia
Klaus-Peter Böttger, President, European Bureau of Library Information and Documentation Associations (EBLIDA)
Paul Ayris, President, The Association of European Research Libraries (LIBER)
Brian Hole, CEO, Ubiquity Press Ltd.
David Hammerstein, Trans-Atlantic Consumer Dialogue

The arguments set out in this letter are also supported by the following individuals and organisations:

Prof Dr Kurt Deketelaere, Secretary General, League of European Research Universities (LERU)
Dr Karl Dittrich, Chair, Association of Universities in the Netherlands (VSNU)
Nicola Dandrige, CEO, Universities UK (UUK)
Prof Kirsten Drotner, Chair, Scientific Committee for the Humanities, Science Europe
Prof Richard Frackowiak, Head Department of Clinical Neurosciences University of Lausanne / Chair, Medicine Sub-Committee of Science Europe
Prof Dr Thomas Risse, Chair of the Academic Committee on Social Sciences, Science Europe
Dirk Inzé, Chair of the Scientific Committee for Life, Environmental and Geo Sciences, Science Europe
Dr. Ir. Véronique Halloin, Secretary General, Fonds de la RechercheScientifique (FNRS)
Prof Emilio Lora-Tamayo, President, National Spanish Research Council (CSIC)
Professor Rick Rylance, Chair, Research Councils UK (RCUK)
Lisbeth Söderqvist, Associated Professor, Swedish Research Council
Dr Rolf Zettl, Managing Director, Helmholtz Association of German Research Centres
Dr Wim Liebrand, Director, SURF
Prof Martyn Harrow, CEO, Joint Information Systems Committee (JISC)
Prof József Pálinkás, President of the Hungarian Academy of Sciences
AndrasKornai, Computer and Automation Research Institute, Hungarian Academy of Sciences
Professor Sally Wyatt, eHumanities Group, Royal Netherlands Academy of Arts & Sciences
Dr Wilhelm Krull, Secretary General, Volkswagen Foundation
Prof Dr Jos Engelen, President of The Netherlands Organisation for Scientific Research (NWO)
Dr Petr Škyřík, National Cluster of Information Education, Czech Republic (NAKLIV)
Sir John Sulston, Institute for Science, Ethics and Innovation (iSEI)
Dr Simon Chaplin, Wellcome Trust
Dr Tim Hubbard, Wellcome Trust Sanger Institute
Dr Rolf Apweiler, Associate Director, European Bioinformatics Institute (EMBL-EBI)
Alicia López Medina ,Confederation of Open Access Repositories
Alma Swan, Director of Advocacy Programmes, SPARC Europe
Dr Victor Henning, Co-founder & CEO, Mendeley
Dr Harald Müller, Library Director, Max Planck Institute for Comparative Public Law and International Law
Associate Professor Dr. Lucie Guibault, Institute for Information Law (IViR), University of Amsterdam
Prof Dr Mireille van Eechoud, Institute for Information Law (IViR), University of Amsterdam
Dr Stef van Gompel, Institute for Information Law (IViR), University of Amsterdam
Prof Charlotte Waelde, Chair in Intellectual Property Law, University of Exeter
Prof Lilian Edwards, E-Governance,University of Strathclyde
Prof Dr Rainer Kuhlen, Chair, European Network for Copyright in support of Education and Science
Teresa Hackett, Electronic Information for Libraries
David C Prosser PhD, Executive Director, Research Libraries UK
John Dolan, Chair of Council, Chartered Institute of Library & Information Professionals
Tim Padfield, Chair, Libraries and Archives Copyright Alliance
KimmoTuominen, President, Finnish Research Library Association
Kristiina Kontiainen, Finnish Library Association
Ap de Vries, CEO, Netherlands Public Library Association
Bas Savenije, President, FOBID Netherlands Library Forum
Andrew Green, CEO, LlyfrgellGenedlaetholCymru / National Library of Wales
Joy Palmer, Library and Archival Services, Mimas, University of Manchester
Ann Rossiter, Executive Director, Society of College, National and University Libraries
Michel G Wesseling, President, NVB: The Dutch Association of Information Professionals
Natalia Manola, University of Athens, Greece on behalf of OpenAIRE
Dr. Evi Sachini, Head, Strategic Planning & Development Department, National Documnetation Centre Greece (EKT)
Kevin Ashley, Director, Digital Curation Centre (DCC)

Photo by Scarlet Green (CC-BY)

Together with La Quadrature du Net, Framasoft, SavoirsCom1 and the Open Knowledge Foundation France COMMUNIA has issued a statement (in french) to express our profound disagreement with the terms of these partnerships that restrict digital access to an important part of Europe’s cultural heritage. The agreements that the BnF has entered into, effectively take the works being digitized out of the public domain for the next 10 years.

The value of the public domain lies in the free dissemination of knowledge and the ability for everyone to access and create new works based on previous works. Yet, instead of taking advantage of the opportunities offered by digitization, the exclusivity of these agreements will force public bodies, such as research institutions or university libraries, to purchase digital content that belongs to the common cultural heritage.

As such, these partnerships constitute a commodification of the public domain by contractual means. COMMUNIA has been critical of such arrangements from the start (see our Public Domain Manifesto) and our Policy Reccomendations 4 & 5. More interestingly these agreements are also in direct contradiction with the Public Domain Charter published by the Europeana Foundation in 2011. In this context it is interesting to note that the director of Bibliothèque nationale de France currently serves as the chairman of the Europeana Foundation’s Executive Board.

The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.

Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This proposed directive intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and public access to knowledge should be a priority of policy-making.

The policy paper draws attention to two issues where the proposal should be improved. The first one concerns the transparency of repertoire information. We consider the proposed measures not sufficient and suggest an amendment to require that CMOs must provide this information more widely. The second issue concerns the relation between collective management and open content licenses. In our opinion, the proposed directive fails to address the existing incompatibilities between the collective management of rights and open content licensing.

The full COMMUNIA Association reaction on the Directive proposal on Collective Management of Copyright can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.