The Copyright Directive challenged in the CJEU by Polish government

Effata Regum Poloniae usque ad Ioannem Casimirum [...]
An independent court will assess the Directive
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Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.

Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:

“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”

Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”Continue reading

CopyCamp 2018 open for proposals

1200px-Bellotto_View_of_Warsaw_from_Praga
Join us in Warsaw for discussion on copyright
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The 2018 version of CopyCamp will take place on October 5th and 6th in Warsaw. For the past 6 years, CopyCamp has been a place for interesting, insightful and engaging discussions about copyright in the EU. Every year an international, interdisciplinary group of artists, experts, scientists, and activists meets to exchange experience, and show that this law affects everyone.

If you would like to join COMMUNIA at CopyCamp please know that the call for speakers is open until until July 31st. You can find more information about that here.

5 Tracks at CopyCamp 2018

Every year CopyCamp has a different focus, for this edition five different thematic tracks have been developed.

Author social security
How to acknowledge and remunerate authors? How to help them to negotiate contracts and secure their career and financial stability in the long run, also during retirement? What are the perspectives of alternative compensation schemes?

The history of copyright
It is the hundredth anniversary of the modern Polish copyright and industrial property law. The evolution of the law has been accompanied by the evolution of cultural activities regulated by these laws. Are there any lessons that can be drawn? What has changed in culture that the law should address better?

EU copyright reform
Is the new directive #ACTA2? We need to have a meaningful discussion on how to fix copyright that transcends such simplifications. CopyCamp has been the place for such a discussion since 2012. This year you are more than invited to share your proposal for the copyright for the future.

Blockchain perspectives
How can technology be used to benefit authors and their audiences? Is blockchain the answer? Will it live up to the expectations? Most importantly – what exactly does blockchain fix in copyright, and whom it will empower?

Reuse of heritage archives
Heritage is an important source for appropriation artists, who use it to retell old stories and build their own stories by reusing existing culture. There are not just legal, but also ethical questions in this area. We invite the GLAM sector to share their experiences from digitization and reuse, and we also invite authors and researchers to openly talk about their needs when it comes to building upon heritage.

About the conference

CopyCamp 2018 is organised in partnership with the Patent Office of the Republic of Poland, Society of Authors ZAiKS, Polish National Film Archive–Audiovisual Institute, and Google Poland. It is supported by EDRi, COMMUNIA, Open Knowledge International, and Open Forum Europe.

The event is open for everyone and entrance is free.

Summary of 2015 amendments to the Polish Copyright Act

Gdynia, the Polish winter sea
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

Polish Copyright Collection Societies and Their Financial Data

Fruits de l'Industrie et de l'Economie
Royalties: years may pass from collection to distribution
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Copyright Collection Societies (CCSs) are organisations traditionally set up by authors, performers, and other kinds of rightholders to collectively manage their rights. Nowadays, there are more than 250 CCSs in the EU. Copyright Collection Societies collect around €6 billion in royalties in the EU every year. The vast majority of this income feeds into the approximately 70 EU CCSs managing authors’ rights, representing over one million authors. Most of this income is derived from musical creations — more than 80% in the case of authors’ societies.

Since the role of CCSs in collective rights management and shaping of copyrights is crucial, the European Union adopted the Directive 2014/26/EU on collective rights management and multi-territorial licensing of rights in musical works for online uses in February 2012 (see our previous coverage here). The transposition date for Member States was April 2014. The directive sets up a common framework for financial reporting. CCSs have to draw up and publish an annual transparency report including detailed accounts, financial information, and a special report on the use of the amounts deducted for purposes of social, cultural, and educational services.

Poland is an example of member state that introduced the obligation of disclosing the CCS financial data long before the directive implementation deadline: the first reports were submitted in 2011. Centrum Cyfrowe, a member organization of COMMUNIA, conducted the analysis of the financial and narrative reports of Polish CCSs for the years of 2010-2013. The CCSs were obliged to disclose these reports for the study. Continue reading

Poland restricts access to digitized cultural heritage

Soon the most valuable digital works of art and culture may be available all around Europe, free of charge, licenses, watermarks, and in open, machine-readable formats.  Together with their metadata they can be used to not only promote rich heritage of our culture, but also to build innovative applications, web services and boost the creative economy all across the Europe. This is the promise made by the European Union, as contained in the new Directive on the re-use of public sector information.

But establishing a single framework, which enables the cross-border offer of products and services is not an easy thing. According to the last report of the PSI Group, Member States are struggling with many challenges while implementing the Directive into domestic law. As might be expected, the correct choice of licensing, charging and redress mechanisms are especially hard to solve.

In the recent Communia policy paper on the re­use of public sector information in cultural heritage institutions, we were  concerned that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. Work on the implementation of the Directive into Polish law shows that this scenario can happen in Poland.

In November 2014, Poland has published a draft proposal of the new bill, which assumes that documents held by cultural heritage institutions are within the scope of the Directive only if they are in the public domain, either because they were never protected by copyright or because copyright has expired.

The problem, therefore, lies in the fact that the remaining resources, even if the institution owns the copyright, have been excluded from the scope of the proposed law. The Ministry of Culture and Digital Heritage, which has been in favour of this very narrow reading of the Directive, believes that it should not apply either to works created by employees of institutions or to works, for which third parties have transferred rights to cultural institutions. What does this mean in practice?

Most importantly, re-use rules will not apply to such important information as descriptive metadata, bibliographic and catalog data. Without metadata and descriptions heritage resources will become useless for those wanting to re-use digital cultural resources. Similarly, public cultural institutions – for example modern art galleries – will still be able to restrict access to the information that they hold, even though it has been produced with public funds.

And such an implementation is in our opinion [see our policy paper p. 4-6]  contrary to the very principle that inspired both the 2003 and 2013 Directives and could lead to the creation of unnecessary hurdles to the re­use of public sector information.

What is maybe even worse, Polish cultural institutions will also be able to impose additional conditions – restricting commercial use (promotion or advertising) or allowing only certain forms and scope of reuse. Even for works that are in the public domain.

This implementation has the combined support of collective management organizations, museums (which in general are much more conservative than libraries in their approach towards digitization and sharing of cultural objects) and the Polish Ministry of Culture and Digital Heritage. One of the concerns raised is that the private sector will be able to build competitive services, museum catalogues or images banks, to those provided by the museums. But wasn’t it the idea of new PSI Directive? In general, it is surprising to see these organizations favour an approach that limits as much as possible reuse of cultural works – since such sharing is explicitly defined as part of their public mission.

All around the world, public domain is treated as the information that is free from intellectual property barriers. Anyone can use and reuse it, remix, combine and translate without obtaining permission. For commercial and non-commercial purposes. But no one can ever own it. In theory. Observing the legislative process in Poland, it becomes clear that in some countries the implementation of the new PSI Directive can indeed not only do more harm than good with regard to access to cultural heritage, but even threaten the idea of the public domain.

We hope that ultimately the Ministry of Administration and Digital Affairs – which is responsible for drafting the bill – will propose a law that supports a modern approach to digital cultural heritage and protects the Public Domain.  And that with time the Ministry of Culture and Digital Heritage will adapt Poland’s cultural policy as well so that allowing access and reuse is seen as part of the public mission, and not as threat to culture.