Responding to the European Commission consultation on PSI: Minimizing restrictions maximizes re-use

The Communia Association has responded to the European Commission’s consultation on recommended standard licenses, datasets and charging for the re-use of public sector information (PSI). The Commission asked for comments on these issues in light of the adoption of the new Directive on re-use of public sector information. See our response here. The Directive 1) brings libraries, museums, and archives under the scope of the Directive, 2) provides a positive re-use right to public documents, 3) limits acceptable charging to only marginal costs of reproduction, provision, and dissemination, and 4) reiterates the position that documents can be made available for re-use under open standards and using machine readable formats. Communia recognizes the high value of PSI not only for innovation and transparency, but also for scientific, educational and cultural benefit for the entire society.

We have been providing feedback to the Commission during this process. We last wrote about the Directive in June, and questioned why the Commission had not yet clarified what should be considered a “standard license” for re-use (Article 8). The dangers of license proliferation–which potentially leads to incompatible PSI–is still present. But it’s positive that the Commission is using this consultation to ask specific questions regarding legal aspects of re-use.

Part 3 of the questionnaire deals with licensing issues. One question asks what should be the default option for communicating re-use rights. We believe that there should be no conditions attached to the re-use of public sector information. The best case scenario would be for public sector information to be in the public domain. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into as close as possible to the public domain to ensure unrestricted re-use.

Communia calls on the Commission and Member States to ensure that core datasets are released for maximum re-use, either by exempting PSI from copyright and sui generis database rights altogether, or by requiring that these rights are waived under the CC0 Public Domain Dedication.

Another question first states that the Commission prefers the least restrictive re-use regime possible, and asks respondents to choose which condition(s) would be aligned with this goal. Again, we think that every condition would be deemed restrictive, since the best case scenario would be for PSI to be removed from the purview of copyright protection through law or complete dedication of the PSI to the public domain using CC0.

Some conditions would be particularly detrimental to interoperability of PSI. An obligation not to distort the original meaning or message of public sector data should be deemed unacceptable. Such an obligation destroys compatibility with standard public licenses that uniformly do not contain such a condition. The UK’s Open Government License has already removed this problematic provision when it upgraded from OGL 1.0 to OGL 2.0. Any condition that attempts to discriminate based on the type of use or user, or imposes additional requirements on the re-user, should be avoided. Examples include: 1) fees for cost recovery, 2) prohibitions on commercial use, modifications, distortion, or redistribution, and 3) unreasonable attribution requirements. Copyleft conditions can threaten interoperability with existing “attribution-only” standard licenses.

In addition to mentioning CC licensing as a common solution, the questionnaire notes, “several Member States have developed national licenses for re-use of public sector data. In parallel, public sector bodies at all levels sometimes resort to homegrown licensing conditions.” In order to achieve the goals of the Directive and “to promote interoperable conditions for crossborder re-use,” the Commission should consider options that minimize incompatibilities between pools of PSI, which in turn maximize re-use. As far as we are concerned that means that governments should be actively discouraged from developing their own licenses. They should consider removing copyright protection for PSI by amending copyright and/or PSI law or waive copyright and related rights using CC0.

Part 4 of the questionnaire addresses charging options for PSI re-use. While the Communia Association did not provide an opinion on this matter, Federico Morando, Raimondo Iemma, and Simone Basso have provided an in-depth analysis on the Internet Policy Review website.

The Little Prince and the Public Domain

so it’s the time of the year again where lists of authors who’s works will enter into the public domain on the 1st of january are compiled left and right. Generally these efforts work like this: you start a list of authors who have died in in the year ending 70 years ago (1942) and then compile them into a list and rank them by whatever criterion you wish to apply (notability, specific nationality, etc..).

While this seems rather straightforward it seems like a good opportunity to recall the underlying complexities of calculating copyright term duration: If you have a fast internet connection and a big screen, you may want to take a look at this 25 MB pdf, which depicts the decision trees for 30 european jurisdictions that power the public domain calculators on www.outofcopyright.eu.

The interesting thing about this PDF is not how complex it is in absolute terms, but rather that the subject matter depicted is supposed is something that the EU considers to be ‘harmonized’ (by the 2006 copyright term directive). As you can easily tell by glancing at the image above, copyright duration in the EU is anything but harmonised. In fact, as Christiana Angelopoulos, who compiled the information contained in the pdf, argues in a new paper, we are dealing with 27 different public domains for the 27 member states of the EU. Continue reading

Communia comments on Library of Congress Third Party Digitization Initiatives


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).

 

The Digital Public Domain: Foundations for an Open Culture

The book “The Digital Public Domain: Foundations for an Open Culture”, edited by Melanie Dulong de Rosnay and Juan Carlos De Martin as an output of the Communia Thematic Network which took place between 2007 and 2011 and is at the origin of Communia Association, is out in all formats (hardback, paperback, and digital editions) and can be purchased on the website of OpenBookPublishers.

book cover The book is under a CC Attribution license and the PDF can be downloaded here: The Digital Public Domain: Foundations for an Open Culture

Citation reference: Melanie Dulong de Rosnay, Juan Carlos De Martin, (eds.), The Digital Public Domain: Foundations for an Open Culture, Open Book Publishers, Cambridge, UK, 2012, 220 p.

This book brings together essays by academics, librarians, entrepreneurs, activists and policy makers, who were all part of the EU-funded Communia project. Together the authors argue that the Public Domain — that is, the informational works owned by all of us, be that literature, music, the output of scientific research, educational material or public sector information — is fundamental to a healthy society.

The essays range from more theoretical papers on the history of copyright and the Public Domain, to practical examples and case studies of recent projects that have engaged with the principles of Open Access and Creative Commons licensing. The book is essential reading for anyone interested in the current debate about copyright and the Internet. It opens up discussion and offers practical solutions to the difficult question of the regulation of culture at the digital age.

The hangover after Public Domain Day…

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

The New Year’s festivities are just behind us and with these the celebrations around Public Domain Day 2012 that took place in different cities in and outside Europe (Warsaw, Zurich, Turin, Rome, Haifa etc.).

2012 brings with it the joy of using James Joyce’s masterpieces without asking the estate for prior authorization (which more often than not met with a ‘no’ for an answer!). No one needs to be afraid of using the works of Virginia Woolf any longer! And the fans of Arsène Lupin, the French ‘gentleman burglar’, are now able to borrow – for good! – the ideas of its author, Maurice Leblanc. The works of several music composers are also free for reuse, including those of Frank Bridge and Johan Wagenaar.

The Public Domain Day IS important and SHOULD be celebrated annually, for it gives us the occasion to reflect on the significance of works of past authors and to measure the wealth of our common knowledge and culture. But unlike the New Year’s celebrations, however, those of the Public Domain Day do not attract much attention among the general public. Festivities of this sort are usually low-key, taking place in libraries, universities or cafés and gathering only the selected few of the well informed and culturally savvy.

Any cramped optimism concerning the public domain is further discouraged by the fact that the term of protection for copyright and related rights is 1) highly unharmonized across jurisdictions and 2) still being strechted beyond recognition through constant legislative action.

As an illustration of the first point, let me mention the case of world famous writer Ernest Hemingway (1899-1961) whose works have fallen into the public domain two days ago in Canada, but neither in his home country, the United States, or in Europe, where copyright lasts for the life of the author + 70 years.

In Europe, the calculation of the term of protection for copyright and related rights is rendered particularly complex due to the lack of proper harmonisation of the governing rules in EU jurisdictions. Although the adoption of the EC Term Directive was an attempt to alleviate disparities between the Member States, harmonisation gaps persist. As a result, the composition of the public domain will differ depending on the country in which protection is sought, as works fall out of copyright on different dates in different EU jurisdictions. This effect is illustrated in the Public Domain Calculators by the need for separate calculators, giving upon occasion very different results, for each of the 30 jurisdictions covered, including the 27, ostensibly harmonised, EU Member States.

In relation to the second point, 2012 will inevitably see the first pieces of national legislation emerge in the EU Member States towards the implementation of Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. Through this statutory amendment only sound recordings published or communicated to the public before 1941 will be free for use. In practical terms, this means that none, not even the early recordings, of Maria Callas will be available for re-use without prior authorization of the record company holding the rights.

Finally, the march towards term extension does not seem to have reached its limit if one only takes a look at the clauses contained in bilateral and mulilateral trade agreements currently negotiated by the United States. Article 4.5 of the Trans-Pacific Partnership, for example, would bring the copyright term of protection of signatory countries up to the American (and European) level, as has been the case in the past in the context of bilateral agreements (with Australia and many countries of Central and South America, to name but these).

These are very sobering thoughts indeed! If the alcohol fumes of the New Year’s party still had any effect, one could even be tempted, for simplicity’s sake, to just make copyright protection perpetual…

Coming up: Public Domain Day 2012

Every January a growing number of people throughout the world gathers to celebrate the new year. But not for the usual reasons. They meet because every January 1st the works of authors who had died decades before – typically, seventy years before – enter the public domain, that is, their copyright protection expires. Why a celebration for such an apparently technical reason? Because as the new years starts, the works of those selected authors have finally reached the state to which all culture is headed since the earliest times. I am talking of the state that automatically allows any human being to sing, play, translate, summarize, adapt what other human beings have thought before them. Wish to produce a big print edition of your favorite poetry? Now you can. Fancy to translate into Sicilian dialect a play you love? Now you can. Possessed by the desire to illustrate, manga style, the ideas of your preferred political scientist? Now you can. Longing to publish a more correct version of a score riddled with typos that the publisher never cared to correct? Now you can.

Public Domain Day 2012In principle, all the above activities are perfectly possible even before the expiration of copyright. On condition, however, that one asks for permission the copyright owner (assuming that it can be located: let’s ignore here the huge problem of the so-called “orphan works”) and pays whatever is requested. Noting that very often the copyright owner is not the author (or his/her descendants), but a for-profit publishing house.

Consequently, many activities do not take place because either the copyright owner does not like the idea (no manga, for instance), or because the wannabe new author cannot afford to pay what is requested by the copyright owner.

Such restrictions, introduced, in their modern form, about three centuries ago to provide – for the common good – incentives to authors, now last an unprecedented seventy years (in Europe and in many other countries) after the death of the authors.

A shockingly long time, that an increasing number of scholars, NGO’s (among them the COMMUNIA association) and citizens are asking to reduce. To know more about the current debate on copyright reform and the role of the public domain, see for instance the Public Domain Manifesto, or check out the OKF’s Working Group on the Public Domain.

But as we work towards copyright reform, every January people who care about the public domain get together and welcome the works of a new batch of authors. In recent years, public domain day celebrations have taken place in cities throughout the world, from Zurich to Warsaw, from Torino to Haifa, from Rome to Berlin. The volunteer-staffed website publicdomainday.org provides an information hub for such celebrations.

The celebrations typically take place in libraries, universities or cafés. People read – or sometimes perform – the work of the new authors. It is often a moving experience, as great men and women from the time of our grand (and grand-grand) fathers come back to life under our affectionate gaze.

During the month of January 2012 people will gather again. Celebrations have already been announced in, among other places, Warsaw, Zurich, Torino and Rome. We hope that others will follow the example. Welcoming the works of some of our great writers, musicians, painters, poets, journalists, scholars is a most gratifying way to start the new year and also a great way to enhance the knowledge of our common cultural roots.

Public Domain Day 2012

Every January a growing number of people throughout the world gathers to celebrate the new year. But not for the usual reasons. They meet because every January 1st the works of authors who had died decades before – typically, seventy years before – enter the public domain, that is, their copyright protection expires. Why a celebration for such apparently technical reason? Because as the new years starts, the works of those selected authors have finally reached the state to which all culture is headed since the earliest times. I am talking of the state that automatically allows any human being to sing, play, translate, summarize, adapt what other human beings have thought before them. Wish to produce a big print edition of your favorite poetry? Now you can. Fancy to translate into Sicilian dialect a play you love? Now you can. Possessed by the desire to illustrate, manga style, the ideas of your preferred political scientist? Now you can. Longing to publish a more correct version of a score riddled with typos that the publisher never cared to correct? Now you can.

In principle, all the above activities are perfectly possible even before the expiration of copyright. On condition, however, that one asks for permission the copyright owner (assuming that it can be located: let’s ignore here the huge problem of the so-called “orphan works”) and pays whatever is requested. Noting that very often the copyright owner is not the author (or his/her descendants), but a for-profit publishing house.

Consequently, many activities do not take place because either the copyright owner does not like the idea (no manga, for instance), or because the wannabe new author cannot afford to pay what is requested by the copyright owner.

Such restrictions, introduced, in their modern form, about three centuries ago to provide – for the common good – incentives to authors, now last an unprecedented seventy years (in Europe and in many other countries) after the death of the authors.

A shockingly long time, that an increasing number of scholars, NGO’s (among them the COMMUNIA association) and citizens are asking to reduce. To know more about the current debate on copyright reform and the role of the public domain, see for instance the Public Domain Manifesto.

But as we work towards copyright reform, every January people who care about the public domain get together and welcome the works of a new batch of authors. In recent years, public domain day celebrations have taken place in cities throughout the world, from Zurich to Warsaw, from Torino to Haifa, from Rome to Berlin. The volunteer-staffed website publicdomainday.org provides an information hub for such celebrations.

The celebrations typically take place in libraries, universities or cafés. People read – or sometimes perform – the work of the new authors. It is often a moving experience, as great men and women from the time of our grand (and grand-grand) fathers come back to life under our affectionate gaze.

During the month of January 2012 people will gather again. Celebrations have already been announced in, among other places, Warsaw, Zurich, Torino and Rome. We hope that others will follow the example. Welcoming the works of some of our great writers, musicians, painters, poets, journalists, scholars is a most gratifying way to start the new year and also a great way to enhance the knowledge of our common cultural roots.

Commission recommendation on the digitisation and online accessibility of cultural material and digital preservation

On the 28th of October the European Commission has adopted a recommendation on digitisation and digital preservation. This recommendation is following up on a similar recommendation from 2006. At the core of the recommendation is the request to the member states to step up their digitization efforts, pool their resources and involve private actors in digitising cultural material. All of this is related to ensure the expansion of Europeana, the Europeana Commission supported digital heritage portal for Europe.

Given that copyright remains the number one obstacle to getting cultural heritage collections online it is no surprise that this recommendation deals with copyright questions as well. In this context it is good to see that the Commission is making it clear that digital reproductions of public domain works must remain in the public domain:

…in order to allow wide access to and use of public domain content, it is necessary to ensure that public domain content remains in the public domain once digitised. The use of intrusive watermarks or other visual protection measures on copies of public domain material as a sign of ownership or provenance should be avoided. (recital 13, page 3)

Continue reading