Your voice counts – only 12 days left

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Make your voice heard!
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The current European Commission public consultation is about ancillary copyright as well as the ‘panorama exception’. We encourage you all to show support for a strong, mandatory freedom of panorama exception in Europe and to say “no” to ancillary copyright. COMMUNIA has already submitted their feedback, and you can let your voice be heard as well. Responses to the Commission’s survey must be received by June 15, and you can check out how to answer the questions with the guide at http://youcan.fixcopyright.eu/.

Why are these issues important for you?

As we’ve written before, ancillary copyright is good for no one. Everyday Internet users and consumers of news and articles would then have a harder time finding the news and information they were looking for, and would potentially face more constraints in quoting, linking to, aggregating, or otherwise using works protected by a new ancillary right for press publishers.

Even more worrying is adopting additional rights on top of a copyright system that is fundamentally broken. This is neither contributing to the Commission’s objective of modernizing the EU copyright framework nor adapting it to the challenges of a fast-evolving digital environment. Creating new rights (which are next to impossible to retract) is not a suitable method for managing the relationship between different market segments and the public. The ancillary copyright will cause substantial collateral damage to education and access to knowledge. Continue reading

Freedom of Panorama – can we be satisfied with only non-commercial use?

Spotprent op de uitgever Jobard te Brussel
Public spaces are part of the commons
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The current European Commission public consultation is about ancillary copyright as well as the ‘panorama exception’ (nobody seems to understand why these two were combined in a single consultation process). Freedom of panorama refers to the legal right to take and share photos, video, and images of architecture, sculptures and other works which are located in a public place. We think that the freedom of panorama should be mandatory across the EU for both noncommercial and commercial purposes. Since the issue is now on the table, it’s important that any outcome supports the commonsense right to take and share images of objects in public places.

Everyday activities should not be limited

The sharing of photos taken in public places is a commonplace activity that should not be regulated by copyright. The issue of freedom of panorama was also discussed in the Reda report. An amendment was introduced by Jean-Marie Cavada to restrict freedom of panorama to only non-commercial uses, but a huge protest from citizens, photographers, and civil society organisations—including a Change.org petition that received over 500,000 signatures—helped remove the amendment from consideration.

But this didn’t stop the Commission from reopening the issue in its most recent consultation when it  asks, “What would be the impact on your activity of introducing an exception at the EU level covering non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?”. Implementing a distinction between commercial and non-commercial use of images covered under the panorama exception will muddy any legal certainty for citizens engaged in taking and sharing images. What does “commercial use” mean? Is it related only to payments for direct use of a photograph? Would images that appear on a website that also contains online advertising automatically considered to be a commercial use? Would Wikipedia be considered a commercial project because it also asks for individual donations on its site? Could a user publish a photo on a for-profit social media platform? Continue reading

Short videos explaining ancillary copyright and freedom of panorama

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Complex legal concepts explained
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The European Commission recently decided to consult stakeholders on their views about two hot topics in the copyright reform discussions in Brussels: ancillary copyright and freedom of panorama. Copyright for Creativity (C4C), has released two short videos to explain what Ancillary Copyright (AC) and Freedom of Panorama (FoP) are about, and why they are important. We found these videos useful in explaining these complex legal concepts to general public. We encourage you to watch and share them.

Ancillary Copyright:

Freedom of Panorama:

The discussion around copyright reform is summarised in the third movie “#FixCopyright: Copy (aka copyright) – Draw My Life”.

Answers to the Commission’s consultation on FoP and AC must be received by 15 June. You can find a answering guide to help you navigate these issues here: http://youcan.fixcopyright.eu/.

Anne Frank and the Term of Copyright Protection: Why it’s Time to Move from Harmonisation to Unification

Anne Frank campaign cover photo
#readannediary
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The text was written by Katarzyna Strycharz. 

Since the beginning of the year there’s been a lot of discussion (and confusion too) about whether the Diary of Anne Frank is now in public domain. Under the normal rules regarding the duration of copyright protection, the work should have entered into the public domain on 1 January 2016. However, there were several unusual circumstances that brought this into question. First, the Anne Frank Foundation announced their plans to list Otto (Anne Frank’s father) as a co-author, which would extend the protection period of the published diary until 2050. Next, due to a transitional rule in Dutch law it became clear that Anne Frank’s original writings would not enter the public domain in 2016 in the Netherlands (and many other EU countries with similar rules). Finally, in early February the Wikimedia Foundation (the organization that hosts Wikipedia and related projects) decided to remove the Dutch-language text of the diary from Wikisource.

On Tuesday 26 April, World Intellectual Property Day, the original, Dutch-language version of ‘The Diary of Anne Frank” will be published online at annefrank.centrumcyfrowe.pl. With this publication of the original version of the diary we seek to highlight the absurdly long duration of copyright in the EU, as well as the fact that, contrary to general assumptions, the duration of copyright is still not unified across the EU and the troubling fact of geo-blocking which creates boundaries online.

On the Anne Frank Foundation website we can read that “Anne Frank’s original writings, as well as the original in-print versions will remain protected for many decades”. So, when does the copyright of the diary expire? It seems that the answer varies from country to country, and we’ll try to investigate whether there is somewhere in the EU where the writings of Anne Frank are now in the public domain.

Transitional provisions in the Dutch law

To fully understand the issue at hand, we observe that there are actually three versions of Anne Frank’s diary writings. Two versions of her manuscripts (version A and B) were combined into the book (version C). This book is commonly known as the the Diary of Anne Frank, and was published in 1947.

As we have previously discussed, version C was compiled by Otto Frank and thus is still protected by copyright 70 years from the time of his death in 1980. But in the case of manuscripts (version A and B) there is no doubt that Anne Frank was the sole author. As we can read  in the statement of the Anne Frank Stichting (who runs the Achterhuis in Amsterdam)“Otto Frank is not the co-author of the original diary writings of Anne Frank”. The same is confirmed by the Anne Frank Foundation (who own the copyrights in Anne’s work), which claims that “copyrights to Anne Frank’s original texts originally belonged to the author, Anne Frank herself”.

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Page from ‘De Dagboeken van Anne Frank”, published by the Dutch Institute for War, Holocaust and Genocide Studies (2001 edition), showing the three versions (from top to bottom A, B and C) of the 9 november 1942 entry in Anne Frank’s diary.

In the Netherlands copyright lasts for 70 years after the death of the author. And even though Anne Frank was killed in 1945, this doesn’t mean that the A and B versions of her diary are in the public domain under Dutch law. This is because the full manuscripts were first published in 1986, and the rule at that time said that works which were first published posthumously are protected for 50 years after the initial publication.

The 2013 Dutch copyright act implementing the 1991 term directive contained transitional provisions stipulating that rights which existed under the previous law continue to exist. This means that versions A and B of the Frank diary will remain under copyright in the Netherlands until 1 January 2037 (50 years after the 1986 publication).

Continue reading

COMMUNIA response to IPRED consultation

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enforcement of copyright must not curb creativity
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Last week COMMUNIA submitted its response to the European Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights (IPR).

We believe that the existing Directive fails to adequately address the varying types (and by extension, impact) of activities that would technically constitute copyright infringement. This is particularly worrying in the case of online infringement, where many violations occur due to unconscious actions by internet users who are not familiar with complex copyright rules. To be justly enforced, the rules should take into account the fact that there are many forms of incidental or relatively harmless forms of infringements today. The law should weigh the seriousness and impact of these minor infringements when deciding on enforcement measures and damages.

Excessive enforcement of copyright against everyday activities must not curb creativity, freedom of expression, and innovation.

From the perspective of internet users, there is no need to revise the Directive in order to strengthen its enforcement provisions. If anything is to be changed, it should be those provisions that support a better balance between the interests of consumers and the protection of the rights of content creators. The following changes should be considered:

 

  1. Ending both civil and criminal prosecutions of citizens for non-commercial file sharing, and withdrawing from prosecuting the creators of derivative works who produce non-commercial remixes. In addition, criminal penalties for violations of intellectual property rights by individuals should be minimized.
  2. Introducing mechanisms for safeguarding fair use and the public domain, including a ban on direct contractual restrictions on access and use of these materials, or of using digital rights management or other technical mechanisms to prevent citizens from exercising their rights under the law.
  3. Avoiding the situation where ISPs or hosting services are forced to filter content based on the orders imposed by civil courts attempting to enforce intellectual property rights, contrary to the provisions of Directive EC / 21/2000 (“the E-Commerce Directive”). There should not be any involvement of intermediaries other than the notice and takedown rules already in place under the E-Commerce Directive. As highlighted in our answers above, these rules already negatively impact internet users because they do not adequately provide users the ability to file counter notices. The ability of users to oppose and counter unjustified takedowns needs to be strengthened, and rights holders need to be required to take into account exceptions and limitations to copyright before filing notice and takedown requests.

We will continue to monitor the outcomes of this consultation. We’re curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu.

Open letter to the Commission: Focus on reforming copyright instead of curtailing internet freedoms

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Reform copyright, don't break the internet!
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In the ongoing reform of copyright, the European Commission has presented a conservative approach . There are some alarming ideas being raised, such as ancillary copyright and broadening the scope of internet intermediaries’ liability. If these concepts are translated into policy, it would make copyright even more complicated to understand and the internet a less free place. The reform discussions so far look neither progressive nor adjusted to users’ needs. This worries Communia and other organisations that serve the public interest.

COMMUNIA is one of the signatories of an open letter on copyright reform sent today to the European Commision. Various civil society organizations and representatives of consumers, businesses, creators, distributors, broadcasters, and public institutions voice their support for a more ambitious reform that is fit for the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication, and access to knowledge.

The letter underlines the notion that online platforms such as search engines and aggregators should not be required to monitor content submitted to their platforms. Even more importantly, they should not be held responsible for blocking links to websites that are accused of hosting illegal content or providing access to content made available illegally. From the letter:

We ask you now to deliver an ambitious reform that is fit for purpose in the digital environment and that upholds and strengthens fundamental principles such as the limitation of intermediaries’ liability, rights of citizens to freedom of communication and access to knowledge.

What does “ambitious copyright reform” mean to COMMUNIA? We advocate for policies that strengthen and expand the public domain and increase access to and re-use of culture and knowledge. We advocate for using Creative Commons licences, enhancing and harmonizing copyright legislation, securing users’ rights in education and culture, and introducing new exceptions to copyright, such as for text and data mining. The Commission needs to hear the voices of organisations and individuals supporting the public interest. The Commission should give copyright the modernisation it deserves by enabling innovation and the sharing of culture—not by adding new layers of protection and complexity to already complex system.

7 reasons why the European Parliament’s vision of copyright reform is more progressive than the Commission’s

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The Commission has opted for a safe approach
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While at this stage almost everyone agrees that the EU’s 2001 Copyright Framework is outdated and needs to be reformed, there is a very broad spectrum of ideas of what such a reform should look like. Recently, two of the three EU legislative bodies (who will need to agree on the final outcome) have laid their cards on the table: on the 9th of December 2015 the European Commission presented its long-awaited communication on copyright ‘Towards a modern, more European copyright framework‘ (our comments can be read here), and on the 19th of January the European Parliament followed up with a report on how to achieve a Digital Single Market Act (our opinion on the document is presented here). Next, the Commission will come up with specific legislative proposals before the summer, which will then need to be approved by the Parliament.

In this situation it is interesting to compare the overall positions of these two actors. From our perspective the Parliament’s approach to copyright reform is more progressive.  This is because the Commission has opted for a safe approach that proposes only minimal changes to the existing rules, whereas the Parliament put forward a number of more interesting and substantial ideas on the direction of the reform:  

  1. The European Parliament calls for abolishing the failed Directive on Databases, since the directive is considered to be an impediment to the development of a European data-driven economy. On the other hand, the Commission’s communication doesn’t even mention any changes related to the  Directive. The Parliament’s recommendation would set a positive precedent in abolishing IP rights if they do more harm than good.
  2. Creative Commons licences are perceived by the Parliament as digital forms of collaborative work and communication that should be be taught and applied across national and linguistic borders in education and training, in public research establishments, and to be promoted in public procurement procedures. Such an approach to open licences will strengthen open culture and open knowledge, and is in our opinion worthy of consideration by the Commission, which omitted the issue of open licensing in its communication.
  3. The Parliament encouraged the Commission to examine whether potential issues related to online platforms could be resolved by proper and full implementation of existing legislation and effective enforcement of EU competition law. The Parliament stressed that the limited liability of intermediaries is essential to the protection of the open internet; this is which is coherent with Communia’s approach. But the Commission’s recommendations seem to be more willing to put additional obligations on intermediaries and to change legislative framework, which was demonstrated in the way the Commission’s consultations on this issue was developed.  
  4. The Parliament wants to introduce the rule of free accessibility (a.k.a. open access) of research results which are at least 50% publicly funded. Such approach is very progressive since none of EU member states have thusfar introduced such a rule on a general scale. Currently, provisions promoting open access to scholarly research can be found as requirements in public procurement procedures and some grants programs, but not in national policies.
  5. The Commission and the Parliament have different approaches to text and data mining (even while both agree that TDM should fall under an  exception to copyright to avoid uncertainties in the research community). The Commission wants to allow public interest research organisations to carry out text and data mining of content they have lawful access to, with full legal certainty, for scientific research purposes. However, the Parliament’s suggestion does not include the  limitation to engage in text and data mining only for  “scientific research purposes”. The Commission’s approach would cover an extremely limited set of beneficiaries, and endorse a licensing-based approach instead of creating a harmonized exception for the benefit of researchers across the EU.
  6. The Parliament warns that everyone shall be cautious against indiscriminately promoting the issuing of mandatory pan-European licences as a tool to deal with geo-blocking, since this could lead to a decrease in the types of content made available to users. The Commission seems not to see such a threat, and is willing to give rights holders and distributors the freedom to reach an agreement on licences that would allow for cross-border access to content. Once again, the Commission seems to believe that licencing is the answer to almost all of the challenges surrounding this issue.
  7. According to the Parliament, fundamental rights such as freedom of expression and privacy are among the factors that should be taken into consideration while shaping a comprehensive copyright framework. In addition, the Parliament wishes to explore fair and appropriate remuneration for creators and other rights holders, economic growth, competitiveness and enhanced consumer experience. For the Commission, protection of fundamental rights only matters while discussing enforcement mechanisms.

Without a doubt, the Parliament’s report could have been more progressive by tackling issues such as the threat of ancillary copyright for press publishers, or the need to safeguarding the public domain. And of course the Parliament’s report only provides suggestions for the ongoing reform discussions— the Commission is not required to take the opinions expressed by the Parliament into account when drawing up their proposals. Nevertheless, we hope the Commission will seriously evaluate and integrate some of the Parliament’s proposals. If they do so, it will go a long way in  helping create ‘a more modern, more European copyright framework’, and not simply a temporary remedy for current problems.

The European Parliament and its path toward a Digital Single Market Act

Children of the Sea
The call to abolish the failed database directive is the highlight of the report
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Creating a fully integrated Digital Single Market (DSM) is one of the main priorities of the current European Commission. The commission has outlined its general approach in last years Digital Single Market communication (which we have discussed here). In reaction to this communication the European Parliament has been working on a report. The report on achieving a Digital Single Market Act, as adopted jointly by ITRE and IMCO Committees on 14 December 2015, was discussed and voted on by the European Parliament on 19 January 2016.

Since the report deals with issues related to the copyright framework of the European Union (among many others, such as boosting access for consumers and businesses to digital goods and services, developing the conditions for digital networks and services to prosper, and making the best of the growth potential of digital economy) Communia perceives the discussion on the document as another step in the ongoing processes related to to tearing down digital boundaries that still exist in Europe. The document is also a “demand” for the what should be contained in the Commission’s 2016 legislative proposals.Continue reading

Challenges and problems of EU consultation on copyright

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The Commission should not impose its own objectives and agenda during the consultation period.
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This post was written by Agnieszka Vetulani-Cegiel. 

The European Commission is willing to cooperate with interested parties (i.e. civil society, interest groups, stakeholders, other entities). The open attitude of the Commission is demonstrated by the inclusion of these parties in the policy-making process, and in work on legal mechanisms. This situation is beneficial to both sides. For the interest groups, it is an opportunity to participate in the policy-making process and to influence EU policies through advocacy and lobbying. For the Commission, it is a way to learn about stakeholders’ views, to earn their support for its actions, and to obtain input to possible legislative proposals.

A big debate on the transparency of the EU policy-making process was triggered by the issuing of the White Paper on European Governance. As a result, since 2001, a range of standards and principles covering the transparency of the policy-making process—as well as relations with ‘interested parties’—has been adopted. Also, the Transparency Register, the Register of Expert Groups, and the Comitology Register were established.

The Commission recently issued a new document called the Better Regulation Guidelines. The Better Regulation initiative aims at making EU action more effective by ensuring that “policy is prepared, implemented and reviewed in an open, transparent manner, informed by the best available evidence and backed up by involving stakeholders”. The Guidelines cover the whole policy cycle: from policy design and preparation, to adoption, implementation (transposition, complementary non-regulatory actions), application (including enforcement), evaluation and revision, and include inter alia Guidelines on Stakeholder Consultation (Chapter VII).

The objective of the Stakeholder Guidelines is to complement and further define the scope of the General principles and minimum standards for consultation set in 2002. It is worth mentioning that a lot of attention has been paid to the mapping of different categories of stakeholders taking part in the EU consultation. It is stated, also, that “open, internet-based public consultation” is mandatory for initiatives with impact assessments, evaluations, fitness checks and Green Papers. The consultation needs to run for at least 12 weeks. Moreover, the Guidelines provide that stakeholders must be enabled to give feedback on the following aspects: roadmaps for evaluations and fitness checks (4 weeks), roadmaps, inception impact assessments (indication of time to be provided after publication), draft delegated acts (4 weeks), draft implementing acts (4 weeks), legislative or policy proposals adopted by the College and, where applicable, the accompanying impact assessments (8 weeks).Continue reading

Summary of 2015 amendments to the Polish Copyright Act

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The amendment to the Polish Copyright Act is a step in the right direction, but...
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The summary has been written by Adam Karpiński and the public policy team of Centrum Cyfrowe.

In October 2015, Poland completed the process of amending the national Act on Copyright and Neighbouring Rights. Its aim was to adapt Polish law to the EU requirements:

  1. the Directive 2011/77/EU (the Directive amending the Directive on the term of protection of copyright and certain related rights);
  2. the Directive 2006/115/EC (the Directive on rental right and lending right); and
  3. the Directive 2012/28/EU (the Directive on certain permitted uses of orphan works).

Additionally, the amendment aimed at clarifying or modernising some other rules, including copyright exceptions and the regulation of ‘domaine public payant’ (i.e. royalties for the use of works in the public domain).

The amendment was the result of a consultation and legislative process that lasted over two years. During this time, the Ministry of Culture and National Heritage initiated a series of meetings on key reform issues within the framework of the Copyright Forum (Forum Prawa Autorskiego) and gathered feedback from various entities, including Centrum Cyfrowe. This process was characterised by a strong presence of non-governmental organisations, and generated some heated debates between NGOs and representatives of rights holders. Continue reading