This is a slightly edited version of an analysis that was first published by Europeana on the Europeana Pro website
More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s consolidated compromise proposal was made public.
The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.
So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.
A legal basis for Extended Collective Licensing
By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:
A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)
One of the issues that has been glaringly absent from the Commission’s proposal for Copyright in the Digital Single Market Directive is better protection of the Public Domain from Cultural Heritage Institutions who are trying to appropriate Public Domain works that they have digitized.
Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.
The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them. Continue reading
Today, MEP Therese Comodini Cachia, the European Parliament’s main rapporteur for the proposed copyright in the Digital Single Market directive published her draft of the JURI report (pdf) on the Commission’s proposal. In line with the initial reactions from the rapporteurs from the Culture and Education (CULT), Internal Market and Consumer Protection (IMCO), and Industry Research and Energy (ITRE) committees Ms. Comoidini’s report points out substantial flaws in the Commission’s unbalanced and backward-looking proposal.
Unlike her colleagues from CULT and IMCO Comodini has limited her report to fixing flaws in the provisions proposed by the Commission. While such fixes are important, this means that her draft report constitutes a missed opportunity to introduce more forward-looking provisions that would strengthen the position of users such as much-needed exceptions providing legal certainty for user generated content and ensuring freedom of panorama in all of the EU.
Below we provide a brief overview of the changes to the Commission’s proposal that Ms. Comodini proposes in her draft report. We will follow-up over the next few days with more in- depth analysis of individual issues.
R.I.P ancillary right for press publishers
Her most straightforward intervention is to delete the Commission’s proposal for a new neighboring rights for press publishers. In line with what we and many others had proposed she instead proposes to solve the enforcement problems of press publishers by improving their ability to act against infringing uses of works published by them:
Member States shall provide publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications. (AM 52)
Yesterday, Catherine Stihler, the Rapporteur for the Internal market Committee of the European Parliament (IMCO) published her draft opinion on the proposed Copyright in the Digital Single Market Directive. As with the draft opinion of the CULT committee which we have extensively discussed here, here and here the IMCO draft makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes.
Catherine Stihler’s opinion contains proposals for amendments that address many of the issues that we have identified with the proposal, and on all of them she makes suggestions that move into the right direction (which includes proposal for a total of five new mandatory exceptions).
R.I.P. press publishers right
The ill-considered proposal to introduce a new neighbouring right for press publishers right is met with the only sensible answer: deletion of the relevant article and recitals. She points out, in line with what we have argued for, that the protection sought by publishers can be achieved with much less invasive means than the reaction of a new right:
Simple changes made to Article 5 of the Enforcement Directive 2004/48/EC, making it also applicable to press publishers, will provide the necessary and appropriate means to solve this matter.
Together with indications that the rapporteur for the JURI committee is also not convinced that press publishers need such a right, this starts looking like the end for the short sighted idea of curing the problems of the press sector with additional rights.
No upload filtering requirement for online platforms
While Stihler’s opinion is less rigorous on the upload filtering provisions contained in Article 13 (which we would also like to see deleted), her approach to the mess created by article 13 covers all the right bases. Her amendments remove all references to filtering measures and “effective content recognition technologies” and make it clear that any new obligations do not contradict the E-Commerce Directive: Continue reading
Last week a number of Europeana organisations representing libraries and other cultural heritage organizations released a joint response to the Commission’s copyright proposals. The paper, issued by LIBER, EBLIDA, IFLA, Public Libraries 2020 and Europeana, deals with those elements of the EU copyright framework that are directly relevant to cultural heritage institutions.
This includes four issues addressed in the Commission’s Proposal for a Directive on Copyright in the Digital Single Market (the exceptions for Text and Data Mining, Education, and Preservation copies, and the measures aimed at improving access to out-of-commerce works), and a number of issues that the Commission’s proposal fails to address, such as on-site access to collections and online document supply.
Exceptions are too narrow
The paper underlines that from the perspective of cultural heritage institutions, EU copyright reform needs to focus on updating and harmonizing copyright exceptions:
We believe that overall welfare is best served by a robust and mandatory set of copyright exceptions which facilitate access to knowledge.
Given this general approach it is not surprising the cultural heritage institutions share many of the same concerns we raised in our analysis of the Commission’s proposal. Continue reading
Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.
The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.
At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.
Can ECL still provide a solution for out-of-commerce works?
Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights. Continue reading
If this week’s leak of a draft version of the European Commission’s Impact Assessment on the modernisation of EU copyright rules shows one thing, it is that the various rightsholder groups have managed to completely hijack the EU copyright reform process.
A first analysis of the ten measures included in the Impact Assessment reveals that, under pressure from organized rightsholders, the EU copyright reform process, which started in 2014 with ambitious goals to modernize the EU copyright rules in order to create a digital single market in the European Union, has turned into a fragmented effort to protect the self-proclaimed interests of rightsholders.
Instead of harmonizing copyright rules across the EU and ensuring that they will not limit the potential of digital technologies, the Commission has chosen to focus on supporting legacy business models of rightsholders in an attempt to defend the status quo. This is a remarkably short-sighted approach to modernizing one of the core policy frameworks governing the information economy, especially if one takes into account that these rules will likely remain in effect for the decades to come.
While we are working on a more detailed analysis of the policy options proposed in the Impact Assessment, here are our initial thoughts on the ten measures covered. It is important to keep in mind that we base ourselves on a leaked version and that the final version can still change, although substantial changes are very unlikely. The document at hand is largely in line with other internal Commission documents, such as last December’s communication on the same topic (see our analysis here), and it is consistent with public statements of key policy makers.
The Impact Assessment is divided into three sections. The first one contains four measures aimed at ‘ensuring wider access to content’. The second one contains three measures aimed at ‘adapting exceptions to digital and cross-border environment’, and the final section contains three measures aimed at ‘achieving a well functioning market place for copyright’.
Exceptions as restrictions
One of the most interesting parts of the Impact Assessment is the section on ‘adapting exceptions to digital and cross-border environment’. The Impact Assessment proposes the creation of three new mandatory exceptions: one covering text and data mining for “public interest research organisations”, one covering preservation copies made by cultural heritage institutions, and one covering digital and online uses in the context of illustration and teaching. Creating mandatory exceptions to enshrine user rights is clearly a step in the right direction (although a tiny one in the case of the preservation exception, which already exists in most member states). At closer inspection, however, two of the three proposed exceptions come with significant flaws. Continue reading
On April 26—World Intellectual Property Day—the original, Dutch-language version of The Diary of Anne Frank was published online at annefrank.centrumcyfrowe.pl. With the publication of the original version of the diary, we wanted to highlight the absurdly long copyright terms in the EU. In addition, we wanted to point out that, contrary to the general assumption, the duration of copyright is still not unified across the EU. This leads to the troubling practice of geo-blocking which creates artificial boundaries online. Our posting of the diary online attempts to show the complicated copyright framework for this and similar works, and champions freedom to access to cultural heritage works in the public domain for creators as well as users. But our campaign appeared to convey an even stronger message.
The campaign raised various concerns with regard to copyright terms and access to culture. We’ve already examined the differences between the three versions of the diary, so we won’t go into that in depth here. Without a doubt, versions A and B did not enter into public domain in the Netherlands due to specific copyright regulations (This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright — in this case large parts of the original writings will only expire in 2037).
The article was written by Marcin Serafin, the head of public policy team in Centrum Cyfrowe.
The Poles and French will probably fight for the next few centuries over whether Frederic (or Fryderyk) Chopin was of Polish or French nationality. Both nations view Chopin as a national treasure, and preserve his memory and heritage. And there is no doubt that in both countries copyrights to his work have expired. Contrary to the case of Little Prince, there is absolutely no doubt about this, as Chopin died almost 170 years ago. This is why we were shocked to learn that the National Institute of Fryderyk Chopin (NIFC) not only issued an ordinance protecting his name and public image, but also filed an application to register two trademarks with the European Union Intellectual Property Office (EUIPO) for all possible classes of products and services using the word “Chopin”. With that, no more “Chopin Hotels”, “Chopin chocolates”, composition of flowers named “Chopin bouquet” or any other product without a license, is possible.
First, let’s understand the facts. The EUIPO database holds 26 trademarks and 4 designs (some registered, some refused or rejected) with the “Chopin” element. Two of the trademarks have been filed on behalf of the NIFC for a wide variety of products and services. Also, NIFC has drafted a long list of terms and conditions users will need to agree to in order be able to use their Chopin trademark. Applications are reviewed by a board and if approve – the licensing fees are imposed. The board sets the rules to which a license may be obtained for use of the trademark. There are 8 applicable licensed uses, including “music with patriotic messaging”, “European high culture”, “high esthetical value”, and “mastership or highest quality.”Continue reading
Last week we saw another Advocate General (AG) opinion published that deals with the position of cultural heritage institutions within the EU copyright framework. Hot on the heels of AG Szpunar’s opinion on e-lending, AG Wathelet weighed in on the question of whether the French system for making out-of-print books available online is aligned with the EU copyright directive. His opinion in the case C‑301/15 Soulier en Doke is that the French scheme, which assigns the digital reproduction and performance rights for out-of-print books to a collecting society that then licenses them, is incompatible with the InfoSoc directive. Such an opinion effectively undermines the idea that Extended Collective Licensing (ECL) can serve as a solution for the copyright problems created by mass digitisation of cultural heritage collections.
This opinion comes at a crucial time when the EU Commission is finalising its copyright reform proposal, which is scheduled to be published in September. As part of this proposal the Commission has promised to propose measures that will “make it easier to digitise out-of-commerce works and make them available”. While the Commission has so far been silent on the mechanism that it would propose to achieve this goal, it is generally understood that there are two different approaches on the table:
The Death of Extended Collective Licensing?
While AG Wathelet’s opinion only concerns the specific question referred to the CJEU by the French court, it has much wider-ranging consequences. Should the CJEU rule in agreement with the opinion (note that a decision is not expected until after the September publication of the Commission’s proposal), then Extended Collective Licensing is effectively dead as a solution for the copyright problems created by mass digitisation. In this sense, this opinion supports the position expressed by cultural heritage institutions that the only real solution for their issues is an update of the relevant exceptions in the InfoSoc directive. Continue reading