Tag Archives: eu-policy

Hugenholtz & Hargreaves on Modernising the European Copyright Framework

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Last week the Lisbon Council published a new Policy Brief on Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework. In the policy brief Ian Hargreaves and Bernt Hugenholtz draw up an agenda for copyright reform in the European Union by proposing a menu of policy options that could be implemented relatively quickly.

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: Continue reading →

European parliament starts discussing the proposed Directive on collective management of copyright

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The European Commission’s Proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market is slowly progressing through the legislative process in Brussels. As part of this no less then five committees of the European Parliament (Legal Affairs, Culture and Education, Industry, Research and Energy, Internal Market and Consumer Protection and International Trade) are in the process of forming their opinion on the proposal.

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:

Continue reading →

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 →

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 →

Information Sans Frontières: Orphan works directive in it’s current form creates more harm than good

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Information Sans Frontières (ISF), an alliance representing public cultural heritage institutions in Europe, has published a new position statement on the proposed Orphan Works directive. On 23 March the ISF reacted to the recent changes in the proposal that resulted from the ongoing negotiations between Council, Parliament and the Commission stating that it was “deeply disappointed in the outcome.” The ISF is highly critical of the latest version which has transformed the proposed Directive into an instrument that is more likely to complicate access to orphan works than to promote it.

According the ISF there are 4 main issues with the Orphan Works directive in it’s current (23 March) form:

  1. The provision to require remuneration for past use of an orphan work as a rights holder re-appears needs to be removed. It undermines the entire purpose of the directive which is to create certainty for users of orphan works (we have raised this point before)
  2. The provision allowing commercial uses of orphan works (article 7 in the original proposal) needs to be restored in order to allow for public-private partnerships to fund digitization projects
  3. The provisions on technical requirements for record keeping related to diligent searches carried out in order to identify orphan works should be made less technology-specific.
  4. The ‘liability’ amendment that has been added as recital 16a needs to be removed as it increases legal uncertainty for users of orphan works and as such is counterproductive to the overall aim of the directive (facilitating the digitization of Europe’s cultural heritage).

This analysis provided by ISF is largely in line with the concerns raised by COMMUNIA in our policy paper on the proposed directive and later statements on this site. Overall Information Sans Frontières makes it clear that it considers the directive in its current form unable to achieve the objectives it is supposed to achieve. In an updated version of the position statement from 2 april the ISF concludes that:

… we hope that the high-lighted difficulties will be removed in forthcoming negotiations with the Commission and Council. If they are allowed to remain, the Directive will not achieve its purpose, according to the Commission’s IP strategy of promoting the digitisation and making available of the collections of European cultural institutions (p.13). We believe that the Directive will set damaging precedents, and will be of negligible use to our member institutions. As the intended beneficiaries of the Directive, we shall ask the Parliament to reject the Directive in plenary if these problems are not solved.

As we have mentioned here before it is alarming to see an organization representing the intended beneficiaries of the proposed directive reject it in its current form. This is more than understandable as the changes that have been introduced during the negotiations so far have turned a good but technically flawed instrument into an instrument that introduces additional uncertainties and restrictions for cultural heritage institutions that are already struggling to provide access to cultural records from much of the past century.

Cultural heritage institutions concerned over proposed European orphan works directive

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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.

The Proposal for a Directive on certain permitted uses of orphan works, introduced in the European Parliament on 24 May 2011, has been following its merry way through the legislative meanders ever since. The debates around the text of the proposal are heating up right now, for the European Commission pushes for rapid adoption while stakeholders watch out against any measure possibly affecting their respective interests.

Already since the beginning of this year, the Danish Presidency has published two revised compromise proposals, one on 6 January and the second one on 10 February 2012. The last proposal was followed by a Presidency non-paper on a possible single database for orphan works for discussion at the Working Party on Intellectual Property (Copyright), held on 17 February 2012. The drafting suggestions made by the Belgian delegation have unfortunately not yet been made available.

The crux of the discussions revolves around the need under the Proposal for a directive for cultural heritage institutions to carry out a diligent search about the orphan status of a work and the extent of such an obligation. Cultural heritage institutions warn that the unhappy result of imposing such an obligation may be that large-scale digitization efforts will see no benefit, after the adoption of the Directive, over the situation they face now. The danger remains that the twentieth century will remain the unknown century for Europe’s children. Its culture will be inaccessible in digital format.

A realistic and practical approach about the kind of collection represented by orphan works is paramount. Examples are:

  • Books discussing the chances of war, published 1910-1913
  • Sound recordings of ordinary people, using ordinary speech, to illustrate regional dialects in Denmark
  • Anonymous political pamphlets expressing dissident views under the Communist regime in Hungary

For each of these collections the commercial value of the rights is zero or nearly zero. Safeguards for rightholders of orphan works are required, but need to be proportionate to the kind of material in a collection.

A call has been made by cultural heritage institutions to the Council of Minsters’ working group for a more balanced and practical solution as follows:

  • Diligent search, a valuable concept, must not necessarily apply to every work (including every embedded work), but must be proportionate to the collection being digitized
  • Restrictions on commercial use must be sufficiently flexible to allow for commercial funding of digitization projects
  • Requirements for recording diligent searches, and uses of orphan works, should not be over-specified in law
  • If the use of an orphan work is permitted by the national licensing scheme of a Member State, the Directive should provide for the permission to extend to all Member States in that particular case. (Such a provision would not impose licensing solutions on all Member States. But it would avoid a fragmented Internal Market of mutually exclusive licensing arrangements.)

The Presidency non-paper of 14 February partly responds to these concerns by suggesting that a single database be set up following the ARROW model to convey information about which work is being used and by whom.

The question remains, however, whether the other concerns voiced by cultural heritage institutions regarding the extent and the cross-border validity of a diligent search will be addressed in the final text of the directive.

To be continued!

Public Sector Information to be discussed in Bruxelles

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The European Thematic Network on Legal Aspects of Public Sector Information (LAPSI, coordinated by Politecnico, NEXA Research Center, Torino) is hosting its 2nd public conference in Bruxelles on January 23rd & 24th.

As the European Commission is presenting a proposal for a Directive amending the 2003 Directive on re-use of public sector information, the question is now about how to implement the proposed amendments in practice, with the purpose of enhancing innovation and genuine public access to open data. Since 2003, the technical and societal environment of public sector information has changed, while raising issues deserving an adapted legal framework, be it as regards IP rights, competition and the protection of private data and access to information. While the Commission representative addresses the EU “Open Data Strategy”, all the high level experts and academics gathered at the conference (Marco Ricolfi, Séverine Dusollier, Hanns Ullrich, Josef Drexl, Miram Bitton, Mireille van Eechoud…) seem to agree that the legal minefield might be difficult to avoid.

COMMUNIA’s Policy Paper on the Commission’s proposal of amendment to the PSI Directive is publicly presented at the conference on January 24th by Daniel Dietrich from the Open Knowledge Foundation. While COMMUNIA supports the need to amend the PSI Directive, and praises the widening of its scope to cultural heritage institutions (despite the amendments do not include all of them), the Association is suggesting several improvements to the proposed text, insisting on the fact that the Public Domain would deserve a more consistent policymaking at the European level.

 

 

InfoSoc @ Ten

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Ten years after the EU Directive on Copyright in the Information Society: Looking back and Looking Forward.

In may 2011 the directive 2001/29/EC of 22 may 2001 on copyright and related rights in the information society (also known as the ‘copyright’ or ‘infosoc’ directive) has turned 10.

To mark this (belated) birthday, the CRIDS (University of Namur) and the IViR (University of Amsterdam) jointly organize a conference in Brussels on the 13th of January 2012, with the collaboration of the European Parliament.

The overall objective of this event will be to assess the achievement of the objectives of the Information Society Directive and to discuss the next steps to undertake to promote creativity in the digital age. Has the Directive been a success? What is still missing to foster a thriving European market for cultural products and an inclusive knowledge society?

You can find the full programme of the one day conference here (PDF) and you can register (until the 4th of january) on the website of the CRIDS.

Two steps forward one step back: new presidency note on the proposed orphan works directive

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There is a new (dated 4 November 2011) note by the Polish presidency on two issues that have turned out to be controversial among the EU Member States in the negotiations about the Commission’s proposed orphan works directive. Both issues addressed in the presidency note have been identified by COMMUNIA in it’s policy paper on the proposed directivedirective and it is not really surprising to see that these have turned out to be controversial among the Members.

Unpublished works

The first of the two questions addressed in the note is whether unpublished works should be covered by the directive. The COMMUNIA policy paper argued that they should be included as ‘the orphan works problem is especially acute in respect of unpublished works’ and it seems that this view is shared by a number of Member States (‘delegations’). According to the presidency note,

[s]ome delegations asked for the inclusion of unpublished works into the scope of the Directive. Other delegations had doubts whether this would be the right way forward.

the presidency note proposes

to reconcile these different views by providing for the possibility to extend the scope of the Directive to unpublished orphan works […] without putting an obligation on Member States that oppose such an approach. It also requires from Member States making use of such possibility to limit its application to works for which it is reasonable to consider that they are the “country of origin”.

In essence the presidency is proposing a compromise that lets member states decide if they want to include ‘their’ unpublished works or not. While this is certainly better then excluding unpublished works altogether, it further fragments an already flawed European attempt to provide a sensible answer to the orphan works problem.

Legal mechanisms for the use of orphan works

The second question addressed in the presidency note deals with “legal mechanisms for the use of orphan works”. The original presidency proposal included a mechanism based on the exceptions to the reproduction and making available rights provided for in Articles 2 and 3 of Directive 2001/29/EC.

According to note a number of Member States have argued for more flexibility in implementing the permitted uses of orphan works. The issue here seems to be to provide room for more far-reaching arrangements that not only cover orphan works but would also permit the use of orphan works as part of (extended collective) licensing arrangements. The note contains new language for Article 6 that seeks to provide member states more flexibility.

In this aspect the presidency note would enable development of alternative models for dealing with the problem posed by orphan works. This is in line with the position taken by COMMUNIA in it’s policy paper.

Two steps forward one step back

Unfortunately the presidency note also attempts to further strengthen the requirement ‘that a remuneration is due to rights holders that put an end to the orphan status of their works, including in the case of uses under the exception’ that was first introduced as part of the first presidency compromise proposal.

As COMMUNIA has argued in it’s policy paper this particular provision has the potential to undermine the entire purpose of the proposed orphan works directive as it ‘will create continued financial uncertainty for users of recognized orphan works’ and as a consequence ‘the directive would provide users of orphan works with very little practical benefits over the status quo’.

Information Sans Frontiers highly critical of proposed orphan works directive

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Information Sans Frontières, a newly formed alliance from the library world (Europeana, JISC, LIBER and EBLIDA) has just released a memorandum on the proposed orphan works directive addressed to the Council of the European Union. The memorandum, backed by some of the the most obvious beneficiaries of the proposed directive is nevertheless highly of the proposal:

Information Sans Frontières is an alliance representing the institutions in the Member States addressed by the proposed Directive. We urge that the Directive should embrace unpublished as well as published works, and creative works in all media. We are unanimously of the view that the Directive is in danger of failing to achieve its policy objectives, in particular large-scale digitization projects. The Presidency compromise proposal has several inherent contradictions with respect to the purpose of the Directive.

  • It is too prescriptive of the methods to be used by the target institutions, insisting on procedures that in some cases will be impracticable
  • It is insufficiently hospitable to solutions based on licensing, which are mentioned briefly in Recital 20 but which have no legislative support in the following Articles in order to allow them to function across borders
  • It seeks to modify the exceptions contained in Directive 2001/29/EC by adding further restrictions on the freedom of action of the target institutions
  • It prescribes over-burdensome methods for institutions to publish their records

You can read the full text of the memorandum here (ISF does not seem to have a website yet).

The memorandum echoes some of the objectives raised by COMMUNIA in our own policy paper on the directive, and raises a couple of issues that we have not touched upon. It is of course rather worrisome that and organization such as Europeana, which embodies the aspirations of the Europeana Union in the digital heritage realm, makes it this clear that the proposed directive will not make it any easier for them to achieve it’s objectives. This is even more worrying since it is the same European Commission that is formulating these objectives, via it’s Recommendation Commission recommendation on the digitisation and online accessibility of cultural material.