Copyright policymaking and the digital public domain: a bitter-sweet wishful thinking from France

The mission on culture at the digital era commissioned by the French government and supervised by Pierre Lescure, rather pompously entitled ‘Acte II de l’exception culturelle’, released its report this week in Paris: ‘Rapport sur la politique culturelle à l’ère des contenus numériques’, downloadable in two volumes on the website of the Ministry of Culture (in French).

The Lescure Report is a new step in the policymaking on creative content in the digital society in France. Following the presidential elections last year, the new government wanted to induce reflection about the future of the HADOPI system adopted by the former government, and more generally on the protection of national culture on the Internet. The ambition heralded by this mission was big, so were the expectations about the resulting report.

The Report addresses a wide range of issues (the first volume of the Report is about 480 page-long) spanning copyright exceptions, non-commercial sharing, liability of intermediaries, financing models to support culture digitization, digital libraries, online clearing of rights on photographs and copyright enforcement. Among its key proposals, the Report argues for the prolonging of the graduated response, albeit under new conditions and under the responsability of another administrative authority (the HADOPI authority would disappear), as well as a new taxing system targeting telecommunication operators meant to finance the transition of cultural industries to the digital age. Moreover, the Report concurs with conservative views on copyright enforcement and discards the proposals elaborating alternative remuneration systems for rightholders and legalizing non-commercial sharing of copyrighted content. Not surprisingly, it has been criticized for being skewed towards industrial interests and in carrying on the repressive policy against webusers (read the critical view from La Quadrature du Net on the ‘wishful thinking and real dangers’ of the Report).

Despite these flaws, the Report takes account of some core considerations on the public domain and open licenses (as reported here), which represents a positive step considering that these issues have been overlooked for a long time by copyright national (and international) policymaking. Among its 80 proposals, the Report highlights the necessity to ‘protect and valorize the digital public domain’ (pp. 38 & 447 et seq) and contains proposals in line with some of Communia’s policy recommendations:

  • A positive definition of the public domain

The Report proposes to insert a positive definition of the public domain in national copyright law, as recommended by the Public Domain Manifesto (cited by the report) and Communia at the international and European levels (see our Positive Agenda for the Public Domain).

Although the Report focuses on the national context, it aptly refers to the international framework and to the WIPO working agenda addressing the public domain issue. As WIPO Observer, Communia has had the opportunity to express its views during the last WIPO/CDIP meetings (see our reports here and here) and to call upon such positive definition of the public domain into lawmaking.

  • Towards clarification of the public domain status of works

In order to improve the visibility of public domain works, the Report argues in favor of the development of open registries of metadata and for the use of technical measures like the ‘Public Domain Mark’ developed by Creative Commons. These proposals are in line with our recommendations.

  • Preventing the privatisation of the public domain

The Report warns against the ‘re-appropriation phenomenon’ and the claims for new layers of rights on digitized content (like the rights claimed for the creation of databases), thus restricting the scope of the public domain. The Report expressly concurs with Communia’s recommendation stating that what is in the public domain should stay in the public domain after digitization (see our Recommendation #5 and pp. 452-453 of the Report).

Further, the Report points out the misuse of technical protection measures restricting the use of public domain content. It suggests strengthening the regulation on technical protection measures to look more closely at their interaction with works belonging to the public domain, but also with software and measures of rights management information. However, these good intentions are likely to go unheeded, as highlighted by the French organization on free software April).

  • Conciliating open access and valorization of public domain works

Digitization agreements between cultural heritage institutions and private enterprises should not lead to the privatization of the public domain. The Report recommends that public interest organisations reaching such private-public partnerships should promote large and open access to public domain works and restrict exclusivity provisions. Unfortunately, reality has shown that public institutions do not hesitate to enter into exclusive agreements with the private sector to the detriment of public access to the cultural public domain (see our press-release denouncing the agreement signed by the French national library BNF).

The Report invites to ‘replace the narrow vision privileging financial interests with a more complex economic and social approach’ (p. 453). More especially, it argues for the promotion of added-value services which develop on raw data and provide financial resources partly compensating digitization costs without restricted access to content. Such standpoint tends to acknowledge the economic potential of innovative services building upon open data and public domain content, which goes in the right direction.

  • Open licenses

The Report contains further recommendations on open licenses, which has been welcomed by Creative Commons France. More particularly, it encourages collective management organisations to devise solutions allowing for the coexistence of open licenses, notably by allowing the members of collecting societies to opt for such licenses (Recommendation #77). This is a significant point that we have raised in our comments on the upcoming EU regulation on the collective management of copyright.

  • Voluntary dedication of works to the public domain

The Report also argues in favor of the voluntary dedication of works to the public domain by their rightholders (Recommendation #76), a principle that we support strongly before WIPO.

  • … and ‘orphan works’?

The Report contains interesting measures on the obligation of publishers to commercially exploit works online (pp. 69 of the Report), thereby seeking to reduce the phenomenon of works whose rightholders cannot be identified or located (‘so called ‘orphan works’). It is nonetheless disappointing to see that the Report does not tackle the issue of ‘orphan works’ properly and mistakenly relies on the proposals pushed forward by national publishers with respect to ‘(commercially) unavailable works’ (according to a national law adopted last year on unavoidable literary works, which has been heavily criticized as disadvantaging authors). Whereas the EU adopted a Directive on ‘orphan works’, the report misses the opportunity of assessing concretely the impact of this EU regulation in national law.

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The Report has likely taken account of some of the arguments made during the hearing process undertaken during the past months, notably those from Mélanie Dulong de Rosnay (Co-Founder and President of Communia), and Lionel Maurel (aka @calimaq, Co-Founder of the French organization SavoirsCom1, who disclosed some legal proposals to strengthen the public domain on a national level).

The question is now whether the French government will be able to arbitrate wisely amongst all the arguments put forward in the Report. The public domain being adjacent to other kinds of measures, such as those promoting graduate response solutions, this creates a strange mixture in which policymakers and citizens might have trouble seeing clear. What is the benefit for the digital public domain to be exposed in such a policymaking instrument? The future will tell.

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