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

Doubling the size of the useable public domain

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

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

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

Copyright Communication: the good, the bad, and the ugly

Het brood der toekomst wordt strijdend gewonnen
Copyright reform: the long struggle ahead
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Yesterday, the European Commission published its long awaited communication on copyright. The document titled ‘Towards a modern, more European copyright framework‘ doesn’t contain many surprises, which is both due to the fact that it is largely identical to a draft version that was leaked at the beginning of November, and that the Commission has opted for a safe approach that proposes minimal changes to the existing rules.

The latter is confirmed by the proposal for a regulation ‘on ensuring cross-border portability of online content services in the internal market’ that the Commission published alongside the Communication. In the light of the Commission’s earlier statements that it wants to create a digital single market, this proposal is a huge disappointment as it only covers access to online services while users are temporarily outside of their ‘Member State of residence’. It does nothing to address the much more important problem that copyright-protected works that are available to citizens of some member states are not available to users in other member states (the Commission promises to ‘address’ this issue in 2016 through a number of market led interventions, suggesting a slow policy crawl against geoblocking).

Ensuring that paid-for subscriptions to content continue to work once the paying customer travels to another member state is nice, but it does not constitute a digital single market. The proposed regulation on cross border portability will put an end to one of the most annoying consequences of a territorial copyright system. But by making the system a little more bearable the this move can also be expected to further entrench the reality of territorial markets.

The fact that enabling portability requires a legislative intervention on the EU level speaks as much to the growing imbalance of the copyright system as it does to the inability of the Commission to deliver on the digital single market promise. Even though this intervention seems to be rather minimal, rights holders are already complaining about the Commission’s proposal, and it will be interesting to see if the Commission will be able to make good on its intention to shepherd the proposal through Parliament and Council within the next year so that it can come into effect in 2017.

The rest the communication does not contain any concrete proposals, but rather identifies areas where the Commission is planning legislative (and non legislative) interventions in 2016. As mentioned above, the text of the communication is largely identical to the leaked draft which we have analysed here. In the following section we will highlight the good, the bad, and the ugly parts of what the Commission is planning for 2016.Continue reading

Reboot of YouCan.FixCopyright.eu for Commission’s platform consultation

The Letter Writer
Dear European Commission...
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Last month we wrote about how the European Commission is running a consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy’. While this is an important opportunity to provide feedback, it’s not been easy for individuals to parse the Commission’s long and complicated questionnaire.

The Copyright4Creativity coalition (of which COMMUNIA is a member) relaunched its YouCan.FixCopyright.eu site to help people respond to the questions. This tool is useful because it will allow respondents to select questions that are relevant to them, and provides a “human readable” explanation of what the Commission’s questions mean.

The consultation runs until 30 December 2015 and the C4C’s YouCan.FixCopyright.eu form will be available until midnight 25 December, as they need to transfer the collected responses from the site to the European Commission. Here’s what you can do to help:

If you have 20 minutes:

  • Go to YouCan.FixCopyright.eu questionnaire, chose your ‘persona’, and fill in the questions you want to respond to, from those we selected as relevant to copyright.

If you have 2 minutes:

  • Send an email to your networks to inform them of this initiative and encourage them to participate.

If you have 20 seconds:

Public Domain on Trial in Reiss-Engelhorn Museum vs. Wikimedia et al.

Portrait of Richard Wagner
Digitisation of public domain works should not create new rights.
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Is it dangerous to take a public domain picture from Wikipedia and use it on your blog or print it on a T-shirt? Last week we wrote about a copyright case in Germany where several users of public domain pictures received letters from the lawyers of Mannheim’s Reiss-Engelhorn museum. The letters demanded payment for the use of photos of public domain art works that had been uploaded to Wikipedia. The museum justifies this legal action by pointing to the costs of digitizing their artworks and the respective acquisition of some form of ancillary copyright protection for simple photographs (“Lichtbildschutz”, § 72 in the German copyright law). On Wikimedia Commons, the repository that hosts media for Wikipedia, there is already a separate category for “Images subject to Reiss Engelhorn lawsuit”.

Amongst the several recipients of the letters were not only Wikimedia Germany and the Wikimedia Foundation, but also the online radio station detektor.fm and the non-profit website “Musical&Co”, which features music-related articles authored by children for children. Continue reading

UK Intellectual Property Office: what is in the Public Domain must stay in the Public Domain

Figuren bij een drukpers
Digitization does not create new rights over Public Domain works
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It is not often that we find ourselves in agreement with the copyright policy positions of government entities entrusted with maintaining the copyright rules. Given this it is somewhat of a rare find to discover the UK Intelllectual Property Office (IPO) has recently thrown its full weight behind our policy recommendation #5 (‘Digital reproductions of works that are in the Public Domain must also belong to the Public Domain.’). In a recently updated copyright notice on ‘digital images, photographs and the internet’ the IPO provides the following answer to the question ‘Are digitised copies of older images protected by copyright?’

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

Continue reading

Securing user rights in education – reflections from our policy debate.

De eerste schooldag
Both copyright reform and voluntary licensing secure user rights in education
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How to secure user rights in education? This was the question we asked during a policy debate organised by Communia and hosted by MEP Michał Boni in the European Parliament on the 17th of November. Panelists, politicians and stakeholders participating in this debate discussed two approaches: the creation and use of Open Educational Resources (OER), and a progressive copyright reform for education.

While these issues are usually presented separately, as Communia we see them as two aspects of a single effort to ensure user rights in education. This two-path approach has been acknowledged at least since 2013, when the Creative Commons community argued that the movement behind open licensing policies needs to be involved in the copyright reform debate as well. Today in Europe, we are facing both developments related to OER policies (related to the Opening Up Education initiative, launched in 2013), and a copyright reform process in which education has been highlighted by the EC to be one of key areas for modernisation of copyright.Continue reading

European People’s Party on copyright reform: or, how to use licenses in 100 creative ways

representation of Last Judgement, with the archangel Michael weighing the souls (or dividing the blessed and the damned)
The EPP group seems to be in favor of preserving the status quo
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Copyright reform is one of the most vividly-discussed topics in European Union in last few weeks. After the leak of the European Commission’s communication, the political parties did not wait long to take a stand in the debate. Socialists and Democrats opted to listen instead of presenting their own ideas, and organized a conference on limitations and exceptions, and geoblocking. The event was held in the Parliament on 19th November.  

On the other hand, the European People’s Party (EPP Group), the largest party in the European Parliament, issued a rather uninspiring position paper on copyright. Many wondered whether the document would present a more progressive stance on copyright reform than what we’ve seen so far from the Commission. And the answer is simply: No.

On an ideological level, the document starts with a really promising message and tone. The EPP Group claims that the most important issue is “a balanced approach on copyright” to accommodate needs of creators and consumers alike. We cannot agree more. But after stating this introduction, the EPP focuses only on creators’ rights, and presents their ultimate goal as ensuring the growth of the creative sector, leaving the issue of public domain out. It’s even more alarming that according to the EPP the only way to preserve cultural diversity in Europe is “ensuring a high level of copyright protection”.

In one sentence,  the EPP Group advocates for “a copyright system that promotes investments, the efficient functioning of value chains between authors, creators, performers, producers, publishers, journalists, intermediaries, service providers, consumers and users”. Apart from the obvious fact that culture cannot be reduced to value chains (or value trees for that matter), it is impossible to understand what they mean when they mention the needs of consumers and users, since these stakeholders have not been well represented in considering a balanced copyright reform.

Continue reading

Why is a museum suing Wikipedia for sharing?

Portrait of Richard Wagner
digitisation of public domain works doesn't create new rights
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Above is the Portrait of Richard Wagner by Cäsar Willich, one of the contested images.

Yesterday the Wikimedia Foundation and Wikimedia Deutschland announced that they’re fighting a copyright infringement lawsuit brought by the Reiss Engelhorn Museum. The German museum is suing Wikimedia for publishing digital reproductions of public domain artworks from its collection on Wikipedia. The physical works of art housed in the museum are clearly in the public domain, but German copyright law might apply to photographic reproductions of those works. According to Wikimedia,

The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. The Reiss Engelhorn Museum further asserts that because of their copyrights, the images of the artwork cannot be shared with the world through Wikimedia Commons.

Wikimedia aligned its goals with those of many cultural heritage institutions, and restated their community’s ongoing commitment to increasing the accessibility and reuse of creative content in the commons. The foundation and Wikimedia Deutschland disagreed with the views of the museum, saying that “Copyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain…[t]he intent of copyright is to reward creativity and originality, not to create new rights limiting the online sharing of images of public domain works.” Continue reading

Open Letter on the Commission’s flawed Online Platform Consultation

A woman shouting into a man's ear-trumpet. Wood engraving.
Consulting without listening?
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Last week we have pointed out our concerns about a number of copyright related questions buried deep inside the EU commission’s ongoing consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy‘. Our main points were that the consultation does not adequately address the effects of regulatory measures aimed at platforms on EU citizens and that the consultation is designed in such a way that it discourages end users from participating.

Today we have relayed these concerns in letters to First Vice President of the European Commission Frans Timmermans (who is in charge of the better regulation agenda) and Members of the European Parliament. These letters are supported by 29 organisations representing civil society, news publishers, consumers and the digital industry share their concerns regarding the European Commission’s approach in consulting on copyright matters. The letter makes it clear that we are not the only ones who consider the online platforms consultation to be flawed:

The Commission’s “Online Platforms consultation” includes some questions on copyright, which had not previously been the subject of consultation. However, critical questions dealing with the creation of new, controversial copyrights for publishers are only open to right holders to answer, denying European citizens and relevant stakeholders the right to be heard. Further, the Commission is set to adopt a Communication on Copyright on 9th December, which covers these issues, before the end of the consultation and a proper analysis of the contributions received. Continue reading