Reda report: the good, the not-so-bad and the ugly compromise amendments

vote for the public domain

Back in April we published our list of the 10 worst and the 5 best amendments to Julia Reda’s draft report on the implementation of the InfoSoc Directive. Tomorrow the Legal Affairs committee (JURI) of the European Parliament will vote on these amendments to the draft report. In light of the upcoming vote and given that Julia Reda has just published the final voting list – including the compromise amendments – it is time for one last round of analysis.

As the name implies, compromise amendments are amendments the different political groups have agreed on as replacements of sets of (often contradictory) amendments related to a specific section of the draft report. Given that they reflect a partial consensus among some of the political groups, they are relatively likely to be adopted. If a compromise amendment (AMC) is adopted, the individual amendments that they replace are automatically rejected. If a CAM is rejected then all original amendments will be voted on individually.

In the following we are taking a quick look at the compromise amendments that deal with the issues we’ve previously highlighted. If you haven’t done so already, you may want to read our initial analysis first.

The Good

Three of our five best amendments have found their way into compromise amendments: AM 264 – which clarifies that what is in the public domain must stay in the public domain (in line with our policy recommendation #5 and with the Europeana Public Domain Charter) – has been subsumed into AMC 6, making it much more likely to be adopted. Having this compromise amendment adopted would be a significant win for the public domain. Continue reading

The Little Prince: almost in the Public Domain

This week is Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s subject is the Public Domain.

Despite nearly 25 years of efforts to fully harmonise digital law in Europe, the road to a harmonised copyright system is certainly not a speedy highway. In fact, each Member State still has its own copyright system that applies within its own territory. One of the areas where this is most visible are the rules for determining when a particular work enters the public domain because the copyright term has expired.

The Little Prince 6th Antoine de Saint-Exupéry was killed in 1944, during a flight over the Mediterranean Sea. “The Little Prince”, his best-known book, is the third most popular novel in the world, translated into over 250 languages over more than 600 translations. More than 80 million copies have been printed. If you know a bit about the rules for determining when a work goes out of copyright, we can assume that on 1st January 2015 “The Little Prince” became part of the public domain. This is because in France copyright lasts for 70 years after the death of the author. And since Saint-Exupéry died in 1944, this would put “The Little Prince” into the public domain in France.

However, the harmonization of the duration of copyright is not uniform. In France, works of authors who died for France during the First and Second World Wars benefit from additional copyright protection. Copyright for works created by these authors is extended for an additional 30 years to compensate for the losses and difficulties in the commercial exploitation of their works during the war.

Beginning this year, “The Little Prince” is in the public domain almost everywhere in Europe. But in France, the novel will pass into the public domain sometime between 1 May 2033 and 1 January 2045, depending on your interpretations of the rules! Interestingly, Canadians have been freely using “The Little Prince” for the last 20 years, as copyright expires there 50 years after the death of the creator.

The French exception may seem surprising to you, but it’s not an outlier. There are multiple other such exceptions present in various European countries. When such irregularities are combined with inconsistent terminology within the European Directives (not to mention differences in the ways the Directives are implemented at the national level) along with unreliable information on the dates of death of the authors, we see we’re a long way from sensible harmonization of copyright law across Europe.

Fortunately, there is good news: establishing a single European framework that enables cross-border flow of products and services is one of the priorities of Jean-Claude Juncker, the newly elected President of the European Commission. The recent report by MEP Julia Reda on the evaluation of the Copyright Directive (2001/29/EC), and tweets made by Commisioner Oettinger and Vice-President Ansip about the need of new copyright rules, are all hopefully signs of coming change. We hope that we’ll be able to report about it during Copyright Week 2016.

(Paul Keller wrote about “The Little Prince” and the public domain on this blog in 2012).

U.S. Register of Copyright Maria Pallante pushes for copyright reform in the U.S

This post by Creative Commons’ Timothy Vollmer was originally posted on the 20th of march on the Creative Commons blog (‘Pallante’s Push for U.S. Copyright Reform‘) and is reposted here with permission from the author.

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.

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.

‘Orphan works’ compromise fails to deliver

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

Séverine Dusollier’s Scoping Study on Copyright and Related Rights and the Public Domain at WIPO CDIP/8

The Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2) has been discussed at WIPO CDIP/8 (Committee on Development and Intellectual Property). WIPO secretariat will prepare a document to provide more information on three of the recommendations contained in the study (namely recommendations 1.c., 1.f. and 2.a.) proposing to lead further research on the legitimacy of tools such as CC0 dedicating works to the public domain, the development of tools identifying public domain works, being databases of calculators and cooperation with cultural heritage institutions and UNESCO to enhance the availability of public domain works.

1.c. The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point.

1.f. International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance.

2.a. The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).

Before reaching that consensus, delegations discussed whether they wanted to further discuss or implement the recommendations and which ones they would like to explore. As part of this discussion, Melanie Dulong de Rosnay made the following statement on behalf of the Civil Society Coalition and COMMUNIA:

“I would like to present a statement on behalf of the Civil Society Coalition and COMMUNIA international association on the digital public domain and take the opportunity to thank the secretariat for all the efforts led since years to lead a study on the public domain. As this is the first time I take the floor, I would like to also thank the chair for this opportunity and briefly introduce our work. COMMUNIA has been funded by the European Commission between 2007 and 2011 and recently incorporated as an international organization under Belgian law.

The most emblematic output of COMMUNIA is the Public Domain Manifesto, which was translated in over twenty languages and signed by several thousands individuals and a few hundreds associations worldwide. The author of the study under discussion was a member of the thematic network and we welcome very warmly all of its recommendations. A vibrant, positively defined public domain is of vital importance for the international copyright framework and for the Development Agenda as set up by the Recommendations in particular from Cluster B recommendations 16 and 20.

[Cluster B Norm-setting, flexibilities, public policy and public domain Recommendations 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 & Recommendation 20. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions]

Specifying the boundaries of the Public Domain is of paramount importance for business and cultural sector organisations alike, as:

  • (a) an increasing number of businesses is making use of Public Domain material to offer value added services (e.g. applications based on public domain content) and
  • (b) cultural sector organisations and memory institutions are holding vast amounts of Public Domain material which they cannot use without a clear understanding of the Public Domain boundaries.

For these reasons, we believe CDIP is the right forum to discuss this study and all of its recommendations.

It is time to make full use role of the informational works owned by all of us, be that literature, music, the output of scientific research, educational material or public sector information. Identifying and preserving works which can legally be reused freely is beneficial for the society as a whole, for cultural expression, for innovation by economic actors based on public data, for access to knowledge and especially education through Open Educational Resources, a movement which is strongly supported by UNESCO, and for development by all countries.”

Surprisingly sensible proposal for an overhaul of the copyright system from Russia (Is Dmitry Medvedev a copyfighter?)

It is well known that sometimes you need to be an outsider to be able to analyze complex problems in a meaningful way. In the ongoing discussions about copyright in the digital environment Russian president Dmitry Medvedev might turn out to be the much-needed outsider. In the past Russia has not had a very strong voice in the discussion about copyright; it has neither been involved in the WIPO development agenda nor has it been part of the ACTA negotiations. Out of this relatively neutral position comes a somewhat unexpected intervention of Russian president Dmitry Medvedev who used last week’s G20 summit to propose an overhaul of the copyright system to the leaders of the G20 member states assembled in Cannes.

It appears that his initiative was largely ignored by his audience as well as the press (both of them having been too busy ‘saving Greece/the euro/the world’ or covering the ongoing attempts to do so) which is rather unfortunate since Medvedev’s proposal contains a number of really interesting points.

First of all, it is really refreshing to hear a world leader state the obvious with regards to the modernization of the copyright system:

Digital technologies and global information networks have made a real breakthrough in information accumulation and exchange. The old principles of intellectual property protection established in a completely different technological context do not work any longer in an emerging environment, and, therefore, new conceptual arrangements are required for international regulation of intellectual activities on the Internet.

Continue reading