Position on EC Horizon 2020 Open Access policy

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COMMUNIA International Association on the Public Domain is publishing a policy paper entitled Position on EC Horizon 2020 Open Access policy before the vote taking place at the European Parliament in November 2012. The policy paper is available as a PDF and reproduced below:

The work of Communia is based on a set of 14 policy recommendations which aim to support policies that enable a rich and accessible Public Domain. In light of these recommendations, Communia welcomes the development of a strong Open Access (OA) policy at the European level around the following main ideas:

  • All publicly funded research outputs and educational resources must be made available as open access materials (aligned with the Budapest Open Access Initiative).

  • Notwithstanding the need to support OA policies, access to copyright protected material for education and research purposes must be improved by strengthening existing exceptions and limitations to copyright, and broadening these exceptions to cover uses outside of formal educational and research institutions.

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WIPO CDIP/10 Comments on the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain

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This CDIP/10 second statement on Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain (CDIP/9/INF/2 Rev.) is following Communia’s previous statements delivered at:

- CDIP/10 commenting on Terms of Reference for a Comparative Study on Copyright Relinquishment (document CDIP/10/14),

- CDIP/9 on the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain by the Secretariat (document CDIP/9/INF/2) and

- CDIP/8 supporting the Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2). Continue reading →

WIPO CDIP/10 – Comments on the Terms of Reference for a Comparative Study on Copyright Relinquishment

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WIPO CDIP/10 – Geneva, November 12 to 16, 2012

This statement on the Terms of Reference for a Comparative Study on Copyright Relinquishment by the WIPO Secretariat (CDIP/10/14) is following Communia’s previous statements delivered at CDIP/8 and CDIP/9 supporting the Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2) and the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain by the Secretariat (document CDIP/9/INF/2).

Comments on the Terms of Reference for a Comparative Study on Copyright Relinquishment

COMMUNIA International Association on the Public Domain welcomes the document produced by the WIPO Secretariat in preparation for the tenth session of the Committee on Development and Intellectual Property (CDIP) titled Terms of Reference for a Comparative Study on Copyright Relinquishment (CDIP/10/14).

We believe that this document is an encouraging sign for copyright international law-making to commit itself to considering crucial aspects of access to culture and knowledge in recognising the increasing importance of the Public Domain, on the basis of the WIPO Development Agenda Recommendation #16: “Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain”.

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Are European orphans about to be freed?

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This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

Last week, the European Parliament approved the draft Directive on certain permitted uses of orphan works. The approval of the Council of Ministers is expected to occur shortly.

This is big news indeed, for it’s the first draft directive in the area of copyright law to make it this far in more than 10 years. It’s been commented and reported by many.

The proposed directive is striking in many respects. Most prominent is the virtually unanimous opinion that the directive ‘is a step in the right direction’, but that it ‘will not facilitate nor promote mass digitization and large-scale preservation of Europe’s vast cultural heritage’. This conjures up the image of the elephant giving birth to a mouse.

The text of the proposed directive went through several iterations before reaching its current stage, including the last amendments brought by the Parliament to the compromise text of last July. Some of the sharp edges have been softened in response to criticism, but the main point of contention remains: how can a cultural heritage institution with millions of items in its collection proceed with digitization if it must conduct prior to use a diligent search for each item? Since this train could not be stopped, cultural heritage institutions are now looking in the direction of their own lawmakers and partner-stakeholders to determine what constitutes a ‘diligent search’ at national level, following the criteria they may establish pursuant to article 3(2) of the directive.

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Communia comments on Library of Congress Third Party Digitization Initiatives

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Messenger boy / The Library of Congress / No known copyright restrictions

Last week the Communia Association submitted comments (PDF) to the United States Library of Congress’ Request for Information on the topic of Third Party Digitization Initiatives.

To give a little bit of context, the Library of Congress is looking for contractors to digitize some of their collections, primarily public domain content. In exchange for digitizers scanning materials at zero cost to the Library, the contractors “may market and resell, for a limited period, access to the digitized collection to cover the costs of digitization.” Contractors must provide the Library with a digital copy of the materials, and they must “make materials widely available.” The Library agrees to not make the digitized materials available online for a certain period of time (this embargo will be no more than 3 years) so that the Contractor can recoup the scanning costs. The Contractor must meet certain quality parameters and provide some metadata to the Library. Finally, the Contractor “shall not claim copyright in the digitized copies of the original Library materials…[but] may assert copyright in independent, creative elements that it may add to the original materials.”

Communia applauds the Library of Congress for taking the initiative to increase public access to its collection. In its comments, Communia urged the Library to push for broad, unencumbered public access to its digitized materials as soon as possible.

We offer a few suggestions for strengthening the Library’s Request for Proposals (RFP). A few of these suggestions are outlined below:

  • The Public Domain Manifesto says that digital reproductions of works in the public domain must also belong to the public domain. And since the Contractors may not claim copyright in the digitized copies, it would be beneficial for these copies to be marked as being in the public domain using a tool such as the Creative Commons Public Domain Mark.
  • The Library should consider bids from Contractors that entertain a wide variety of access models. For example, some digitizers might be in the position to offer immediate, free ad-supported access (instead of selling access on demand).
  • In general, the Library should prioritize bids that provide free public access sooner than those that have longer embargo periods.
  • The Library should consider involving volunteers and other community organizations willing to assist in the digitization and quality control work. For example, Wikimedia France partnered with the Bibliothèque nationale de France to process high definition files of public domain texts.
  • The Library requires the vendor to provide a set of core metadata. The Library should be authorized to release this metadata into the public domain using the CC0 Public Domain Dedication, thus aligning with an open metadata model used by several large libraries around the world, including The British Library, Harvard Library, and soon to be used by Europeana.
  • The Library should develop a strategic access plan and secure the necessary funding so that the materials can be properly archived and made publicly available without delay once the period of exclusivity has come to an end.
  • In future RFPs, the Library should consider how to leverage the expertise and capacity of digitizers to scan not only these small, interesting, and impactful collections, but also the vast (yet less visible) trove of public domain materials that comprise the bulk of the Library’s collection.
You can view the full comments of Communia here (PDF).

 

14 Proposals for a post ACTA reform of copyright and related cultural policies

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COMMUNIA member and La Quadrature du Net co-founder Phillippe Aigrain has published 14 proposals for the reform of copyright policy and related cultural policies. The proposal, titled ‘Elements for the reform of copyright and related cultural policies‘ contains 14 interlined reform proposals that attempt to bring cultural policies and copyright in line with the realities of the digital environment.

According to Phillipe Aigrain the time for a constructive discussion on copyright reform on the European level is now:

Now that the ACTA treaty has been rejected by the European Parliament, a period opens during which it will be possible to push for a new regulatory and policy framework adapted to the digital era. Many citizens and MEPs support the idea of reforming copyright in order to make possible for all to draw the benefits of the digital environment, engage into creative and expressive activities and share in their results. In the coming months and years, the key questions will be: What are the real challenges that this reform should address? How can we address them?

Not unsurprisingly for a COMMUNIA member the 14 proposals have a substantial overlap with positions previously voiced by COMMUNIA (see our 14[sic!] policy recommendations): Aigrain addresses issues of alternative compensation for creators, hostage/orphan works, exceptions for educational use and memory institutions, the reform of collective management and the introduction of formalities.

In addition to these issues Aigrain tries to broaden the discussion to also address on questions related to funding for cultural production and the position of creators vis a vis intermediaries. He makes the argument that copyright reform alone is only one side of the coin and that we need to critically review policies related to culture funding as well. This expansion of the discussion makes his proposals especially interesting although it is not hard to imagine that it will be quite a challenge to form a coalition that embraces his entire list of proposals. That, however, does not diminish the value of Aigrain’s contribution and it is up to work towards getting this discussion underway.

As Aigrain and others have argued the moment to start a discussion about copyright reform that is not driven by fear and the interest’s of incumbent industries and intermediaries is now and we need to embrace this opportunity.

UK government proposal to modernize copyright underlines failure of EU approach to hostage works

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The UK Government has published a Government Policy Statement based on the recent Consultation on modernising Copyright held in the UK. The document summarizes the findings of the consultation and outlines policy actions that the UK government intends to take. The policy statement (pdf) covers three fields where the government intends to legislate: ‘Improvements to copyright licensing’, ‘Extended Collective Licensing’ and ‘Codes of Conduct for collecting societies’:

The Government, following the Hargreaves Review, made a number of proposals to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.

These measures bring some currently unlawful or unlicensed activities within the scope of legal activity, allowing licensing to occur and thus benefiting right holders and licensees alike. They have potential to cut costs and improve compliance with copyright law, and to improve confidence in the UK copyright system.(p.7)

In the light of the discussion about the ‘Orphan works’ directive the first two of these should be of interest beyond the borders of the Island Kingdom. Continue reading →

‘Orphan works’ compromise fails to deliver

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The compromise text of the proposed orphan works directive is finally out. If nothing unexpected happens, this text should be what gets adopted later this year, what needs to be transposed into national legislation within 2 years from then, and what cultural heritage institutions that are confronted with hostage works need to deal with for the next decade or two. This text also represents the first finished legislative project that is part of the European Commissions Digital Agenda, which attempts to make Europe ‘fit for the digital age’.

Given all of the above, it is unfortunate that the text also is a legislative train wreck that fails to make any substantial improvements to the situation in which memory institutions engaged in digitization efforts find themselves. The compromise text of the proposed directive (‘compromise’ refers to a compromise between the three EU legislative bodies the Commission, the Council and the Parliament, not a compromise between the many stakeholders affected by this legislation) has essentially abandoned the initial purpose of the proposed directive. That purpose was to ensure that the public gains access to those works that are held hostage by the copyright legislation that has failed to keep up with social and technological change. Instead, the proposed directive has morphed into a twisted attempt to protect the ideology underpinning 20th century copyright legislation against the effects of the problems created by the rigidity of this very ideology. Continue reading →

‘Orphan Works’: European Parliament and European Council Announce Agreement on Draft Legislation

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The European Parliament and the EU Council announced on June 6th to have achieved one further step toward EU legislation on ‘orphan works’ (we’re deliberately using ‘orphan works’ with comas because if this appellation is commonly used, it is based upon a metaphor being potentially misguiding; see our former post on Prof. Lydia Loren’s proposal on the ‘hostage works’ appellation).

Based upon the draft Directive on certain permitted uses of orphan works tabled by the Commission in 2011 (COM/2011/0289), about which COMMUNIA expressed some Policy Recommendations, the two European regulation bodies have come to an agreement. Although the deal is said to be ‘informal’ (it still has to get final approval from the Parliament’s Committee on Legal Affairs, Parliament as a whole and in the Council), it shows the ongoing efforts of the European regulator to move on with the ‘orphan works’ issue. The text of the agreement has not yet been made available. According to the press-release from the Parliament’s Committee on Legal Affairs:

“This legislation would allow everyone to access such “orphan works” and take forward the project of making Europe’s cultural heritage available online.”

It seems that the agreement would not bring major changes to the Commission’s proposal. This lets us think that our concerns about the shortage of the Directive are to remain, especially as regards its impact on the digital Public Domain. Nevertheless, a few elements unveiled by the press-release deserve some comments. Continue reading →

Time to change perspective: Hostages, not Orphans

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U.S Law Professor Lydia Loren has just published a draft paper that contains what may be one of the most sensible contributions to the ongoing discussion about the ‘orphan works problem’. In her paper ‘Abandoning the Orphans: An Open Access Approach to Hostage Works‘ she makes a strong argument that the very name that has been attached to this problem may be misleading and lead to false solutions and thus should be reframed as the ‘hostage works problem’.

Loren states that the term, which was first introduced in 1999, overlooks the core of the problem:

These works are being held hostage by a set of rules that result in an inadvertent lock-up of the expression these works contain. (p.22)

In the context of hostage works, the incentive for creation functioned as intended: the work was created. But the incentive for distribution has actually backfired. Instead of a risk of underinvestment in distribution we have a manifestation of such underinvestment. Copyright protection is obstructing distribution, not enabling or facilitating it. This is a type of waste: copyright law is “inhibiting access . . . without any countervailing benefit.” In addressing the hostage work problem, we should be focused on a solution that reduces the waste by removing the barriers to non-owner distribution. (p.23)

Focussing on the hostage status of these works helps with devising a system that can deal with the manifest market failure that hostage works represent. While Pallas Loren’s paper discusses possible solutions against the backdrop of US copyright law, her arguments are surprisingly powerful in understanding the current discussion on the European Union level. Continue reading →