What does Anne Frank tell us about copyright reform?

Anne Frank campaign cover photo
#readannediary
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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).

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Don’t bury Chopin’s legacy under a mountain of IPRs

The only known photograph of the famous pianist and composer, taken by Louis Antoine Bisson, public domain.
limitation on public domain is improper?
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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

Advocate General Wathelet: Extended Collective Licensing is NOT the answer for mass digitisation!

Keizerlijke bibliotheek en rariteitenkabinet
Enable access to digitized cultural heritage now!
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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

Cultural heritage institutions: Extend exceptions to reflect new technological realities!

Keizerlijke bibliotheek en rariteitenkabinet
Update copyright exceptions now!
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One of the more remarkable aspects of the Commission’s communication “Towards a modern, more European copyright framework” from last december was how much attention it paid to issues faced by Cultural Heritage Institutions. In the communication the Commission announced no less than four different interventions aimed at modernizing those aspects of the copyright framework that govern how Libraries, Archives and Museums can operate in the digital environment. These include the introduction of a new exception for Text and Data mining, updates to the exception for the preservation and research and private copy exceptions and the ambition to make ‘it easier to digitise out-of-commerce works and make them available‘.

As we have argued here before, Europe’s cultural heritage institutions deserve copyright rules that allow them to fully embrace the opportunities offered by the digital environment. And as we have noted before we are not alone with this opinion. Both the European Parliament (in the form of the Reda report) and prominent cultural heritage institutions from across Europe (in this open letter) have made the point the Libraries, Museums and Archives should benefit from exceptions and limitations that also apply online.

While it is unclear at this point how the commission intends to make good on its announcements from December there is some legitimate concern that heeding to pressure from publishers and other rightsholders the Commission will propose only minimal updates to the existing system and instead suggest ‘solutions’ based on (extended collective) licensing.

In this situation LIBER, IFLA, EBLIDA, Europeana and Libraries2020 have joined forces and have issued a joint statement with a list of recommendations to adapt Exceptions to Digital and Cross-border Environments. In addition to arguing for updated exceptions the five organisations also point out that currently the rights granted by exceptions and limitations are routinely overridden by contracts and/or technical measures:

The library and broader cultural heritage community supports a balanced copyright framework that not only recognises citizens’ right to information, but also respects authors’ rights to fair remuneration for their work. However, libraries and audio-visual collections in particular are witnessing first-hand how fragmented implementation of exceptions under EU copyright legislation is an increasing barrier to cross-border access to content, preventing progress in particular for students and pan-European research projects. To compound this, in all but four European Member States (Belgium, Ireland, Portugal and the United Kingdom), contract terms can override existing copyright exceptions, which further undermines the goal of a coherent European copyright framework. […]

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Advisor to the Court of Justice of the EU: copyright law must evolve with technology

Johan van Oldenbarnevelt verschijnt voor zijn rechters
An important step forward for libraries
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While the European Commission is still busy determining what changes to propose to the EU copyright framework this fall, some stakeholders have decided that instead of waiting for an update of the EU copyright rules (that is at least four years away), they are better of attempting to expand the existing rules. Last year the Dutch Association of Public Libraries (VOB) started a legal procedure against the Dutch organization tasked with distributing to authors the remuneration that libraries pay for lending out books (Stichting Leenrecht).

In addition to paper books, the VOB wants to lend out e-books, but is concerned that the EU directive on the rental and lending rights of books does not cover digital lending. Instead of waiting for an update to the directive, the VOB decided to go to court to clarify the issue. The Dutch Court subsequently referred the case to the the Court of Justice of the European Union (CJEU) and asked it to answer the question if digital lending is covered by the Rental and Lending Rights Directive.

While the court’s decisions in the VOB vs Leenrecht case is not expected until late this year, Advocate General (AG) Maciej Szpunar delivered his opinion last Thursday. In its opinion AG Szpunar advises the CJEU to rule that art 1(1) of the Rental and Lending Rights Directive must be interpreted to include the right to lend electronic books included in a library’s own collection. While AG opinions generally offer a good indication of how the Court will decide, they have no direct effect and it is important to remember that the court can also come to a different conclusion than the AG. This of course is exactly the outcome that the VOB had hoped for and as such this AG opinion represents an important step in the fight of libraries to be allowed to adopt their activities to the digital environment. Continue reading

Guestpost: Looking beyond Google for online access to EU culture and knowledge

Last month the US Supreme Court refused to hear an appeal from US authors who attempted to overturn a prior decision that Google’s scanning of millions in copyright books amounted to “fair use”. This refusal marks the end of a decade long legal fight about the Google books project. This means that in the US Google is free to scan and index in copyright protected books, in order to allow internet users to search the contents of the books.

The fact that Google is allowed to do this has received much criticism, not only from authors in the US but also from rights holders and media in Europe. Much of this criticism has been directed to the fact that the ruling allows a commercial entity to provide access to the full corpus of literature published in the US, but misses a much more important point.

As Ellen Euler, the Deputy Managing Director for Finance, Law, Communication of the Deutsche Digitale Bibliothek points out in her guest contribution below, this means that internet users in the US have access to a much broader body of knowledge and culture than the internet users in the EU. According to Euler we should not see Google Books as a threat to culture but rather as a reminder that Europe urgently needs to create a legal framework that enables access to the collections of our libraries, archives and museums, preferably by allowing them to make their collections available via their own online platforms.

Looking beyond Google for online access to EU culture and knowledge

by Ellen Euler

In the the digital and networked 21st century, cultural heritage institutions have an extended mandate: they must not only provide local access to culture and knowledge, but are also expected to make their collections available via the internet. As we spend an increasing amount of our time online, expect to be able to view and enjoy the the rich collections of our libraries, museums, and archives. And it’s important to provide online access to enable the discovery and innovative reuse of our shared cultural commons. As Tim Berners-Lee, one of the inventors of the web, sums up: “What’s not on the Net, is not in the world”.

When we digitize content from cultural heritage institutions, we begin the process of opening those materials to the world. As Armand Marie Leroi, a humanist and professor of evolutionary biology once said, “digitisation transforms them from caterpillars into butterflies”. Digitized texts allow us to pose entirely new questions and acquire new knowledge based on full-text searches and via other analytical tools and methods. This type of information mining is no longer restricted only to texts. Image recognition tools, combined with standardised metadata and geographical data, make it possible to interrogate other types of content too. We can use new quantitative research methods to test hypotheses and create linkages between bodies of knowledge. We can create virtual research environments to enable the contextualisation of collections within a broader framework.Continue reading

How additional rights for publishers will hurt education and access to culture

Spotprent op de uitgever Jobard te Brussel
No additional copyrights for publishers!
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The Commission’s public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ is addressed at a broad range of stakeholders, which includes both ‘Libraries/Cultural heritage institutions’ and ‘Educational or research institutions’. In this second post of our series on the consultation, we highlight what the introduction of an additional right for publishers would mean for the education and cultural heritage sectors. We encourage organisations and professionals from these sectors to make their views known to the Commission. [If you have not read our introductory post that deals with the more general problems of granting additional rights to publishers you may want to read that first.]

What additional rights for publishers mean for cultural heritage institutions…

Cultural Heritage Institutions struggle with making their collections available online. While large parts of their collections are not commercially available anymore, or were never in commercial circulation to  begin with, most materials from the 20th and 21st century are still covered by copyright and neighbouring rights. In order to make their collections available online institutions have to obtain permission from rightsholders to do so (they need to ‘clear the rights’). For out of commerce works this is an extremely time consuming and expensive process. Most institutions cannot afford large scale rights clearance and as a result there are very few works from the 20th century available via the websites of cultural heritage institutions (‘the 20th century black hole‘). Continue reading

Contrary to what publishers think, Libraries serve the Public

Adreskaart voor boekhandel Scheltema en Holkema
Have the publishers lost it?
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It is relatively well documented that neither the French nor publishers are big fans of copyright reform. Given this, the comments from the CEO of the French publisher Hachette Livre on at last week’s London Book Fair are not entirely surprising.  

Less than three weeks after the European Commission launched a consultation that appears to be designed to create additional copyrights for publishers, Hachette CEO Arnoud Nourry warned his international publishing colleagues that Google is a bigger threat to publishers than Amazon and greatly benefit from what he called “the European Commission’s senseless attack on copyright”. According to a summary of his talk provided by the Bookseller, he then went on to declare that:

… vast exceptions to copyright law for libraries, for education, for fair use” could provide an opening for Google to rebrand itself as a library, opening up its repositories of scanned content for free and profiting from advertising income [and] questioned why the EC was targeting publishers: “It is as if the Commission had made it a priority to weaken the only European cultural industry that has achieved worldwide leadership. Need I remind you that nine of the 12 largest publishing companies in the world are European?”’

To anyone following the relatively tame course the Commission has charted out for reviewing the EU copyright rules, this looks like a relatively ill-informed overreaction by a publisher who seems to be offended that European legislators dare to even think about modernizing EU copyright without asking the publishing industry for permission first. The obsessive focus on Google as an evil outsider intent to destroy culture-as-we-know-it highlights the unease the traditional publishing sector still feels when it comes to all things digital.Continue reading

Research: Orphan Works Directive does not work for mass digitisation

trainwreck
Orphan Works directive: as useless as expected
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In 2012 the European Parliament adopted the Directive on ‘certain permitted uses of orphan works by cultural heritage institutions’. The directive intends to fill the gap between the mission of cultural heritage institutions to share cultural works to citizens, and the complex, costly, and sometimes impossible task of locating rightsholders to get permission for online publication of these orphaned yet still-in-copyright works.

COMMUNIA’s 2012 analysis of the directive showed that it was bound to be a train wreck. A preliminary comparative study of the situation in the UK, the Netherlands, and Italy undertaken by the EnDOW project reveals that the national implementations of the directive across Europe do not provide the much needed solution for the problem of orphan works.

Under the directive, cultural heritage institutions are allowed to publish works online for viewing (not re-use) after a ‘due diligence search’ has been performed, recorded, and submitted to the orphan works database at OHIM. Works that have been registered in this database can then be digitized and made available online under an exception to copyright. So far the project only published its initial results, but we can already see that this piece of legislation will most likely not contribute to large-scale use of orphan works by Europe’s Libraries, Museums & Archives.

The main reason for this is that the diligent search requirements established by the directive have been implemented by member states in such a way that the cost of undertaking a diligent search is prohibitive. The study collected over 210 sources, databases, and registers that need be checked in diligent searches in the UK alone. Researchers from Italy found 357 possible databases and registers. Of the 87 identified sources in the Netherlands, 40 were not freely accessible, and 36 of these required personal contact or a physical visit to an institute. Since the legislation requires cultural heritage institutions to be diligent, they need to check each and every source to be covered by the limited exception provided by the directive.

These results illustrate that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix. This is further shown in the actual number of orphan works available through the OHIM Orphan Works Database, which currently only shows 1,435 registered works. More than half of them are in the collection of the Dutch EYE Film Institute (which has worked on rights clearance for these works since at least 2008).

The preliminary results of EnDOW provide evidence that the European Union has failed in this attempt to provide much needed digital access to Europe’s cultural heritage. Given that the Orphan Works Directive does not help with mass digitisation projects, this means that there is a continued need to provide legal mechanisms that allow cultural heritage institutions to make works in their collection available online.

Note: This contribution has been written by Maarten Zeinstra. Maarten is technical advisor to EnDOW. The ideas expressed in this post should not be attributed to EnDOW.

Public Domain on Trial in Reiss-Engelhorn Museum vs. Wikimedia et al.

Portrait of Richard Wagner
Digitisation of public domain works should not create new rights.
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Is it dangerous to take a public domain picture from Wikipedia and use it on your blog or print it on a T-shirt? Last week we wrote about a copyright case in Germany where several users of public domain pictures received letters from the lawyers of Mannheim’s Reiss-Engelhorn museum. The letters demanded payment for the use of photos of public domain art works that had been uploaded to Wikipedia. The museum justifies this legal action by pointing to the costs of digitizing their artworks and the respective acquisition of some form of ancillary copyright protection for simple photographs (“Lichtbildschutz”, § 72 in the German copyright law). On Wikimedia Commons, the repository that hosts media for Wikipedia, there is already a separate category for “Images subject to Reiss Engelhorn lawsuit”.

Amongst the several recipients of the letters were not only Wikimedia Germany and the Wikimedia Foundation, but also the online radio station detektor.fm and the non-profit website “Musical&Co”, which features music-related articles authored by children for children. Continue reading