10 years of COMMUNIA, a decade of copyright reform: how far did we get?

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Last week, on June 15, COMMUNIA celebrated its first 10 years. To mark the event, we decided to revisit the 14 policy recommendations that were issued at the moment of our foundation, and that have been the guiding principles for our advocacy work in the last decade.

We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

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The public domain belongs to all and is often defended by no-one: we want to change that

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Litigating for the right to our shared culture
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As we approach our 10th anniversary, new ideas as to what role we want COMMUNIA to play in the coming decade are starting to take form. After spending a decade trying to improve policy and legislative processes, we can very much see COMMUNIA embracing other tools of intervention to expand the public domain and strengthen access to knowledge and culture. One of such tools, alongside our advocacy work, is strategic litigation.

Judicial developments are much needed to provide further clarity as to the scope of users rights in Europe. There’s still legal uncertainty as to whether certain public interest activities are permitted under existing exceptions and limitations to copyright,  how users can assert their rights on online platforms, whether (and how) users can enforce their rights against contracts and technological measures, and what’s the status of the public domain. The implementation of the new Copyright Directive, particularly Article 17, will bring further interpretation challenges. 

Whether and how much Communia will be able to engage in strategic litigation in the next decade is still to be determined, but we decided to take the first steps in this realm, by supporting a court proceeding that is aimed at challenging an abusive practice that is eroding the public domain: that of claiming exclusive rights overs tridimensional digitizations of public domain artworks.

The case against Musée Rodin

In 2018, artist and open access activist Cosmo Wenman filed a freedom of information request with the Musée Rodin in Paris to access the 3D scans of Auguste Rodin’s sculptures (all of which are in the public domain). When the museum refused to comply, Mr. Wenman appealed to the French Commission on Access to Administrative Documents (CADA).

In response the CADA confirmed that these 3D scans in question are administrative documents and are subject to public disclosure, under freedom of information laws, and therefore the Musée Rodin is required to give public access to them. 

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Our response to the EC consultations on digital technologies and the cultural heritage sector

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This week, we have submitted our response to the European Commission’s consultation on the opportunities offered by digital technologies for the cultural heritage sector​. We agree, it is high time to revisit the approach defined by the Recommendation on the digitisation and online accessibility of cultural material and digital preservation from 2011. Ten years is a lot of time and a new approach is needed due to three factors: advances in digitisation of heritage, legal reforms that took place in the meantime – especially the new Copyright Directive, and the rapidly changing digital environment.

We believe that cultural policies, to be fit for their purpose both today and in the years ahead, need to be based on an updated vision of the role of digital heritage for Europe’s societies. We need strategies that support the creation of social, cultural, and economic value based on Europe’s heritage. This is especially true in 2020, when during the Covid-19 pandemic the value of digitised cultural heritage for our societies became clearly visible. Yet it was also a time when many of the cultural heritage institutions faced a crisis.

We need an approach to cultural heritage that recognizes its value to the society and ensures the resilience of cultural heritage institutions and the cultural sector.

Below you will find highlights of the issues that we raise in our response. You can also download the full response as a PDF file.

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Communia Salon 2020/4: Which digital policies work for cultural heritage in 2020s?

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On Thursday, the 17th of September, we will be organising the fourth Communia Salon this year. During the online event, organised in cooperation with the #NoWorries project, we want to discuss policies that concern digital cultural heritage. Our meeting will take place right after the European Commission will close its consultation on opportunities offered by digital technologies for the culture heritage sector. We also want to discuss the ongoing implementation of the Copyright in the Digital Single Market Directive, and the rules that it will set for cultural heritage institutions.

In the consultations, the European Commission is referring to the “Recommendation on the digitisation and online accessibility of cultural material and digital preservation”, from 2011.  Almost a decade has passed since then, and large amounts of heritage have been digitised. The term “digitisation” has been replaced with the idea of digital transformation. At the same time, barriers and challenges to access and reuse still remain – heritage in digitised form is a potentially underused resource.

During the salon, we want to ask representatives of key stakeholders from the heritage sector: what are the effects of digital technologies on the cultural heritage sector, and how should we shape them with appropriate policies? With regard to copyright regulations, we want to discuss wheter the reform went far enough, and whether it struck the the right balance? We also want to consider whether any other policies are needed for Europe to fully benefit from digital heritage?

Join us for a debate moderated by Alek Tarkowski (Communia / Centrum Cyfrowe), with the participation of Paul Keller (Communia / IViR), Ariadna Matas (Europeana), Hessel van Oorschot (Open Nederland / Tribe of Noise) and Brigitte Vézina (Creative Commons).

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 17th of September, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

New policy paper on fundamental rights as a limit to copyright during emergencies

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Adjusting essential uses to new modes of living
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Today, Communia released a policy paper on fundamental rights as a limit to copyright during emergencies. 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 transpose education, research and other public interest activities from public locations to private homes during government-imposed lockdowns, 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.

The main conclusions of our paper are the following:

First Conclusion

The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights.Continue reading

What we hope for WIPO under new leadership: neutrality, fairness, and transparency

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Improve the quality of policy making at WIPO
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Last week, the World Intellectual Property Organization (WIPO) nominated a new Director General, Daren Tang, who will assume the post on 1 October 2020. Tang is currently the Chief Executive of the Intellectual Property Office of Singapore and has served as the Chair of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) for the past six bi-annual meetings of the committee. 

A growing number of civil society organizations working on copyright reform, including Communia and its members Wikimedia and Creative Commons, participate as permanent observers in the SCCR, for the committee addresses several important issues in the field of copyright. This includes a potential new treaty for the protection of broadcasting organizations; exceptions and limitations to copyright for libraries, museums, archives, educational and research institutions, and persons with other disabilities; and the broader topic of copyright and the changing digital environment. 

WIPO has the potential to affect norm setting in a variety of topics in the field of copyright, not only those currently discussed in the SCCR, but also others that WIPO may introduce via its training and capacity-building activities. In fact, although WIPO is a member state-driven institution and only its 192 country members can decide on the adoption of binding legal instruments or soft laws, the Director General and his senior management team can influence the direction of national law and policy reforms in developing countries through the organization’s technical assistance program.

The impact of the WIPO Secretariat on the work of the copyright committee

The WIPO Secretariat also has a significant impact on the work of the SCCR. In the past year, we have witnessed that it is fairly easy to prejudge the outcomes of an Action Plan on Limitations and Exceptions adopted by the WIPO member states if the WIPO Secretariat carries out the activities foreseen in such a plan in a manner that puts an over-emphasis on the private interests of copyright owners to the detriment of the public interests related with access to knowledge and education. 

Regional events intended to identify “areas for action with respect to the limitations and exceptions regime” can easily be turned into lobbying platforms for copyright owners, if ill-designed. Would-be beneficiaries of the limitations and exceptions regime can easily be prevented from sharing their experiences in such events in a structured manner, if no formal speaking roles are given to them. Furthermore, an international conference intended to discuss limitations and exceptions for cultural heritage and educational and research institutions can be organized in such a manner that the panels are dominated by rights holders and collective management organizations, preventing a fair and balanced discussion on the issues at hand. Continue reading

Implementing the new EU provision that protects the public domain

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.

For a detailed analysis, please read Communia’s guide on Article 14, authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov.Continue reading

Implementing the new EU provisions that allow the use of out-of-commerce works

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that allow cultural heritage institutions to digitise and make out of commerce works in their collections available online.

For a detailed analysis, please read Europeana and Communia’s guide on Articles 8-11, authored by Ariadna Matas and Paul Keller. Continue reading

Implementing the new EU exception for preservation of cultural heritage

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for preservation of cultural heritage contained in the new Copyright Directive.

For a detailed analysis, please read IFLA and Communia’s guide on Article 6, authored by Stephen Wyber. Continue reading

Ahead of last trilogue: on balance the directive is bad for users and creators in Europe

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Today we are launching a new minisite called “Internet is for the people” that provides an overall assessment of the Directive on Copyright in the Digital Single Market. Our assessment takes into consideration all the key parts of the Directive.

Our aim, with this project, is to present how the Directive  will either empower or hurt users and creators in the digital age. The rules that regulate creativity and sharing must be fair and take into account contemporary online activities and digital practices. Essentially, the internet needs to be for the people, and key legislation needs to be based on this principle.

In order to do this, we analysed nine different issues that are included (or have not been included) in the proposal for the Directive: Upload Filters, the Press Publishers Right, Text and Data mining, access to Cultural Heritage, Education, the protection of the Public Domain, a Right to Remix, Freedom of Panorama and Fair Remuneration for Authors and Performers. Each issue was then scored, allowing us to provide an overall score of the Directive based on an understanding of all elements of the proposal.

Too often, the Directive is reduced just to a few controversial issues: content filtering or a new right for publishers. These are clearly crucial issues, but it is important to understand that the Directive includes other rules that can also have massive effects on Europe’s research and science, education, cultural, or AI industry–just to name a few.

We decided to analyse the Directive through a particular lens: of the potential to either empower or hurt users and creators in the digital age. We are critical of views that the Directive simply attempts to regulate business relationships between two sectors, and that therefore the policy debate should be left to them. The Directive will have tremendous impact on all European citizens, who depend in all aspects of their lives on communication systems and digital tools that copyright law regulates.

The internet needs to be for the people. This means that core policies, like copyright law, need to be “for the people” by design. As our analysis shows, the final proposal for the Directive will likely be a legislative mixed bag. A range of positive developments concerning exceptions and limitations – rules that grant people the freedoms to use content for personal needs or public interest goals – are offered alongside other regulatory proposals that will have extremely adverse effects across all spheres of European society.

On Monday policy makers will have one more chance to fix some of the shortcomings of the proposed directive. Based on the current state of affairs it seems extremely unlikely that this will fundamentally alter the our negative overall assessment of the directive: Seen as a whole, the proposed Directive is bad, and will not make the internet work for European citizens.