This page contains all policy papers published by COMMUNIA Association. COMMUNIA policy papers analyse legislative proposals and other policy issues in the light of their effects on the Public Domain and are published at irregular intervals.
- COMMUNIA policy paper on the proposed orphan works directive
- COMMUNIA policy paper on the proposal to amend the EU Directive on re-use of Public Sector Information
- COMMUNIA EU Positive Agenda for the Digital Public Domain
- COMMUNIA WIPO Positive Agenda for the Public Domain
- COMMUNIA Position on EC Horizon 2020 Open Access policy
- COMMUNIA policy paper on proposed Directive on collective management of copyright
- COMMUNIA policy paper on digitization agreements for Public Domain works
- COMMUNIA Policy Paper on the re-use of public sector information in cultural heritage institutions
- COMMUNIA Policy Paper on the review of the EU copyright laws
- COMMUNIA Policy Paper on the importance of exceptions and limitations for a balanced copyright policy
- COMMUNIA Policy Paper on leveraging copyright in support of education
- COMMUNIA Policy Paper in reaction to the public consultation on the Database Directive
- COMMUNIA Policy Paper on the review of the PSI Directive
- COMMUNIA Policy Paper on fundamental rights as a limit to copyright during emergencies
Policy Paper #14 on fundamental rights as a limit to copyright during emergencies (May 2020)
This policy paper has been prepared in the context of the COVID-19 pandemic, which has caused a massive disruption of the normal organization of society in many EU countries. In our paper we defend that, in order to safeguard the rights to freedom of information, freedom of science and education, when the physical premises of educational institutions, research organizations and cultural heritage institutions are closed due to an emergency, we need to be able to rely on the understanding that fundamental rights can, in exceptional situations, function as an external limit to our national copyright systems.
We argue that, if the exceptions and limitations existing in a EU Member State have no elasticity to cover educational and research activities that take place remotely during situations like the COVID-19 pandemic lockdowns, the national copyright law cannot be deemed to have properly internalized the fundamental rights enshrined in the EU Charter of Fundamental Rights. In such cases, the rights to freedom of information, freedom of science and education should be relied upon to allow derogations from the exclusive rights.
COMMUNIA policy paper #13 on the review of the PSI Directive (January 2018)
This policy paper has been prepared in the context of the 2017 review of the Directive on Public Sector Information (PSI Directive). The Directive first came into effect in 2003, and was amended in 2013 to clarify that 1) PSI should be presumed to be “reusable by default,” 2) museums, archives, and libraries were subject to the Directive provision, 3) acquisition fees were limited to marginal costs of reproduction, and 4) documents were to be made available for reuse using open standards and machine readable formats. The Commission’s 2017 review could lead to further changes to improve reuse of public sector information. We made several recommendations to strengthen access and reuse of PSI.
COMMUNIA policy paper #12 in reaction to the public consultation on the Database Directive (August 2017)
This policy paper has been prepared in the context of the European Commission’s public consultation on the application and impact of the Directive 96/9/EU on the legal protection of databases (Database Directive). The Directive aimed to harmonise the treatment of databases under copyright law and introduced the sui generis right for non-original databases.
While the Database Directive may have partially harmonised the legal protection of databases with regard to copyright, the sui generis right has produced negative effects for database producers and users. We urge the European Commission to repeal the sui generis database right and harmonize the limitations and exceptions for the copyright section of the Database Directive with the Infosoc Directive.
COMMUNIA policy paper #11 on leveraging copyright in support of education (January 2016)
This policy paper has been prepared in the context of the ongoing debate on the scope of copyright limitations and exceptions in support of education. Copyright policy needs to empower—and not thwart—the activities of teaching and learning. Exceptions and limitations to copyright for education should support necessary access and re-use of copyrighted content of all types in a variety of education settings and across borders. In this context, exceptions and limitations should promote positive learning outcomes, and the rights of copyright owners should be balanced with the public interest. Copyright needs to be reshaped to be fit for modern education—which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as off.
COMMUNIA policy paper #10 on the importance of exceptions and limitations for a balanced copyright policy (May 2015)
This policy paper has been prepared in the context of the ongoing debate on the scope of copyright reform within the EU Digital Single Market strategy. Our focus is on the importance of exceptions and limitations as necessary building blocks for a balanced copyright reform. In our paper we argue against views that believe that licensing is sufficient to make copyright fit for the digital times.
COMMUNIA policy paper #9 on the review of the EU copyright laws (March 2015)
This policy paper has been prepared in the context of the public debate, ongoing in 2015, on the reform of the European copyright system, in particular the InfoSoc Directive. It draws on our Progressive Agenda for the Digital Public Domain and from the 14 COMMUNIA policy recommendations. Most of these policy recommendation deal directly or indirectly with aspects of the existing (EU) copyright framework.
The policy paper defines three principles related to the definition of the public domain:
- Exclusive rights should be limited.
- The public domain should not be eroded by legal or technical means.
- Limitations and exceptions to copyright should continue playing their role of adapting copyright to technological changes.
Based on these principles, we have defined a list of issues for which COMMUNIA should advocate with regard to the review of the EU copyright framework.
COMMUNIA policy paper #8 on the re-use of public sector information in cultural heritage institutions (November 2014)
This policy paper looks at the ongoing implementation of the the European Union’s Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information (PSI). One of the major new features of the PSI directive is the inclusion in its scope of libraries (including university libraries), museums and archives.
While laudable in principle, the inclusion of cultural heritage institutions in the scope of the directive raises a number of questions related to how Member States should implement the new PSI directive. If Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions. In order for the directive to meet its overall objective, i.e. to contribute to opening up the resources held by Europe’s cultural heritage institutions, three main recommendations for member states can be formulated:
- Member States should implement the Directive in line with the principles established by Article 3 and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive.
- Member States must not implement the Directive in such a way that encourages or requires institutions to charge for the reuse of works that they make available for reuse. The decision to charge for reuse must be up to the individual institutions. If this is not the case the Directive will limit access and reuse of the public domain.
- For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions, Member States should encourage the use of Open Definition-compliant licenses, such as the Creative Commons licenses or the Creative Commons Zero mechanism. This applies in particular to metadata produced by cultural heritage institutions, in the limited cases where these metadata can attract copyright (such as long form descriptions of cultural heritage objects).
COMMUNIA policy paper #7 on digitization agreements for Public Domain works (June 2014)
In the context of the 2013 Public Sector Information (PSI) Directive which adds Museums, Libraries and Archives in the list of Public Sector Bodies (PSBs) that have to make their information reusable, the COMMUNIA International association elaborated a policy paper with a view to make policy recommendations for cultural institutions to preserve the Public Domain when using digitization services provided by private entities.
Recommendations from the policy include:
- No copyright protection over the digitized version of public domain works or over newly published works
- No contractual restrictions over the use of digitized copies
- Respect of openness & transparency principles
COMMUNIA policy paper #6: on proposed Directive on collective management of copyright (January 2013)
The COMMUNIA International Association sixth policy paper is a reaction to 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.
The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.
Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This proposed directive intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and public access to knowledge should be a priority of policy-making.
The policy paper draws attention to two issues where the proposal should be improved. The first one concerns the transparency of repertoire information. We consider the proposed measures not sufficient and suggest an amendment to require that CMOs must provide this information more widely. The second issue concerns the relation between collective management and open content licenses. In our opinion, the proposed directive fails to address the existing incompatibilities between the collective management of rights and open content licensing.
COMMUNIA policy paper #5: Position on EC Horizon 2020 Open Access policy (November 2012)
COMMUNIA International Association on the Public Domain is publishing a policy paper entitled Position on EC Horizon 2020 Open Access policy before the vote taking place at the European Parliament in November 2012. The policy paper is available as a PDF and welcomes the development of a strong Open Access (OA) policy at the European level. All publicly funded research outputs and educational resources must be made available as open access materials (aligned with the Budapest Open Access Initiative). Notwithstanding the need to support OA policies, access to copyright protected material for education and research purposes must be improved by strengthening existing exceptions and limitations to copyright, and broadening these exceptions to cover uses outside of formal educational and research institutions. Communia Association calls the Members of the European Parliament to establish a clear OA policy:
- OA mandate for all publicly-funded research output
- Eliminate sui generis rights on databases
- Prevent unfair publishing agreements
COMMUNIA policy paper #4: A Positive Agenda for the Public Domain (November 2012)
This policy paper proposes to contribute to defining a positive agenda for the Public Domain. It is grounded on a WIPO study by Professor Séverine Dusollier, Communia policy recommendations and Communia previous WIPO statements.
This work-in-progress document presents policy recommendations and strategies aimed at the transnational level, namely WIPO CDIP and SCCR. Legal language will be drafted at a later stage.
Policy recommendations are:
- Definition of a positive status for the Public Domain
- Recognition of the validity of voluntary dedication to the Public Domain
- Facilitating the identification of the Public Domain status
COMMUNIA policy paper #3: Progressive Agenda for the Digital Public Domain: A reply to the Call of the Greens/EFA group at the European Parliament (September 2012)
The paper is a reply to the call for a progressive agenda on creation and innovation launched by the Greens/EFA group in order to raise awareness on the various components of a positive agenda for “Intellectual Property” at the European Parliament. COMMUNIA states that the Public Domain should be recognized positively. Through the current prism, the Public Domain is only considered as a vague “non-IP protected” zone. The policy paper aims at proposing to the European policy-makers clear definitions which can fit into existing European law (the paper focuses on the Copyright Directive), towards a clear understanding and recognition of the Public Domain by the Member States. COMMUNIA Association calls the European policy-makers to:
- Define a legal status for the Public Domain. The positive definition of the Public Domain shall be part of the legal instrument: new articles are proposed for the Copyright Directive (2001/29/EC).
- Protect the Public Domain from private appropriation and underuse: the use of works in the Public Domain should not be limited by any means, either legal or technical.
- Recognize the legal validity of voluntary dedication of works to the Public Domain by their authors.
- Facilitate the identification of Public Domain works through registration mechanisms and Rights Management Information, thus avoiding the increasing phenomenon of “orphan works”.
- Promote the development of adapted rights management models like extended collective licenses.
- Raise awareness about the Public Domain among all stakeholders and citizens through the promotion of the Public Domain Day, a Communia initiative launched in 2010 and celebrated each year’s January 1st).
COMMUNIA policy paper #2 on the proposal to amend the European Directive on re-use of Public Sector Information (January 2012)
The paper is a reaction to the European Commission’s proposal to amend the Directive on re-use of public sector information (2003/98/EC).
COMMUNIA is supportive of the Commission’s suggested changes to the PSI Directive — most notably the decision to include cultural heritage institutions into the scope of the amended Directive. Access to and re-use of public sector information (PSI) has been one of the issues that has featured prominently in the work of COMMUNIA. The EC proposal to amend the PSI Directive is aligned with one of COMMUNIA’s January 2011 policy recommendations (#13), which states, “The PSI Directive needs to be broadened, by increasing its scope to include publicly funded memory organisations – such as museums or galleries – and strengthened by mandating that Public Sector Information will be made freely available for all to use and re-use without restriction.”
The policy paper draws attention to two issues where the proposal to amend the Directive should be improved. The first one concerns the conditions for re-use of public sector information that falls within the scope of the Directive and the second one deals with public domain content that is held by libraries, museums and archives.
Conditions for re-use of public sector information
From the perspective of COMMUNIA the way the amended Directive addresses licensing of public sector content remains underdeveloped and as such has the potential to create diverging and potentially incompatible implementations among the Member states. The article of the amended Directive dealing with licensing mentions “standard licenses,” but does not sufficiently clarify what should be considered to be a standard license, and encourages the development of open government licenses. Instead of recommending the use and creation of more licenses, COMMUNIA suggests that the Commission should consider advocating the use of a single open license that can be applied across the entire European Union. Such licenses (stewarded by the Open Knowledge Foundation and Creative Commons) already exist and are widely used by a broad spectrum of data and content providers.
Public Domain Content held by libraries, museums and archives
COMMUNIA supports the decision to include cultural heritage institutions under the purview of the PSI Directive, as such a move will improve citizens’ access to our shared knowledge and culture and should increase the amount of digitized cultural heritage that is available online. While the amended Directive makes it clear that documents held by cultural heritage institutions in which there are no third party intellectual property rights shall be re-usable for commercial or noncommercial purposes, it does not address the largest category of works held by cultural heritage institutions — those that are not covered by intellectual property rights because they are in the public domain. COMMUNIA thinks that explicitly including public domain content held by libraries, museums and archives in the re-use obligation of the amended PSI Directive will strengthen the Commission’s position with regard to access and re-use of public domain content.
COMMUNIA policy paper #1: on the proposed orphan works directive (October 2011)
This policy paper (released on 27 October 2011) analyzes the European Commission’s proposed directive on certain permitted uses of orphan works (COM/2011/0289) in the light of its effects on the Public Domain. The paper contains suggestions for improving the directive to make it more suitable to the stated objective of increasing access to cultural heritage material that is currently locked away by a dysfunctional copyright system.
COMMUNIA is especially concerned with the narrow focus of the directive and its one-sided view on diligent search. In its current form the directive does not meet COMMUNIA’s March 2011 policy recommendation on orphan works:
Recommendation #9: Europe needs an efficient pan-European system that guarantees users full access to orphan works. Both mandatory exceptions and extended collective licensing in combination with a guarantee fund should be explored. Any due diligent search requirements should be proportionate to the ability of the users to trace the rights holders.
According to the policy paper, a main weakness of the proposed directive is its narrow focus on public cultural heritage institutions as the only beneficiaries of the proposed exceptions allowing the use of orphaned works:
It is COMMUNIA’s position that the group of users who may benefit from the orphan works directive should be widened to include everyone. The targeted group of end users should include individuals as well as non-profit initiatives like Wikipedia, which would currently not benefit from the proposed directive. Wikipedia is one of the most important platforms for access to cultural heritage information drawing more than 136.9 million European users alone.
A further concern is the vague standard for search.
There need to be mechanisms to determine the location where a search has to be carried out in cases where the works have not been published or where it is unclear where the works in question have been first published.