UK Intellectual Property Office: what is in the Public Domain must stay in the Public Domain

Figuren bij een drukpers
Digitization does not create new rights over Public Domain works
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It is not often that we find ourselves in agreement with the copyright policy positions of government entities entrusted with maintaining the copyright rules. Given this it is somewhat of a rare find to discover the UK Intelllectual Property Office (IPO) has recently thrown its full weight behind our policy recommendation #5 (‘Digital reproductions of works that are in the Public Domain must also belong to the Public Domain.’). In a recently updated copyright notice on ‘digital images, photographs and the internet’ the IPO provides the following answer to the question ‘Are digitised copies of older images protected by copyright?’

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

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Why is a museum suing Wikipedia for sharing?

Portrait of Richard Wagner
digitisation of public domain works doesn't create new rights
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Above is the Portrait of Richard Wagner by Cäsar Willich, one of the contested images.

Yesterday the Wikimedia Foundation and Wikimedia Deutschland announced that they’re fighting a copyright infringement lawsuit brought by the Reiss Engelhorn Museum. The German museum is suing Wikimedia for publishing digital reproductions of public domain artworks from its collection on Wikipedia. The physical works of art housed in the museum are clearly in the public domain, but German copyright law might apply to photographic reproductions of those works. According to Wikimedia,

The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. The Reiss Engelhorn Museum further asserts that because of their copyrights, the images of the artwork cannot be shared with the world through Wikimedia Commons.

Wikimedia aligned its goals with those of many cultural heritage institutions, and restated their community’s ongoing commitment to increasing the accessibility and reuse of creative content in the commons. The foundation and Wikimedia Deutschland disagreed with the views of the museum, saying that “Copyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain…[t]he intent of copyright is to reward creativity and originality, not to create new rights limiting the online sharing of images of public domain works.” Continue reading

European Parliament adopts Reda report, fails to demand real copyright reform

Yesterday the European Parliament approved MEP Julia Reda’s evaluation report of the copyright directive. With the report the European Parliament gives a clear signal that the European Copyright rules need to be modernised. This puts the ball in the court of the Commission, which needs to come up with concrete legislative proposals for a copyright reform – which it promised to deliver before the end of the year. Both Commissioners Oettinger and Ansip have reacted positively to the Report, while its author, Pirate Party MEP has expressed the hope that the Commission’s proposal will be more ambitious than the EPs report, which has been watered down considerably through a large number of amendments.

So while the report is a clear signal that MEPs want to see a modernisation of the EU copyright rules that date back to 2001, it is much less clear what shape these modernised rules should take. Most of the report is based on compromises that MEP Reda has brokered between all major political groups represented in the EP. As a result, the report does not outline a clear plan for reforming copyright. Still, it is possible to distill from it a number of things that MEPs clearly both want and don’t want to see in the reform proposal. It is also clear that pressure from civil society – related to such issues as Freedom of of Panorama, hyperlinking or ancillary copyright, helped avert worst amendments to the report.

MEPs do not want to see further limitations of user rights.

Attempts have  been made to include language that would limit the rights of end users. Fortunately all of these attempts failed. The majority of MEPs is clearly unwilling to further limit the ability of citizens and other users to interact with copyright protected material. Continue reading

Expand Public Domain and User Rights: COMMUNIA position paper on copyright reform

We are publishing today our position paper on copyright reform in Europe (PDF), as a statement in the ongoing debate that focuses on the reform of the Information Society Directive.

Our position is based on the 14 policy recommendations that are at the heart of our organisation, as well as on our previous policy documents. We start by defining three basic principles:

  1. Exclusive rights should be limited.
  2. The public domain should not be eroded by legal or technical means.
  3. Limitations and exceptions to copyright should continue playing their role of adapting copyright to technological changes.

Based on them, we formulate 12 positions on  the EU copyright framework reform. We will be using them as guidance for our own advocacy work – but we present them also as recommendations for policy makers.

These positions are result of a discussion on ways of translating a general principle of defending and expanding the public domain into recommendations that fit onto current policy debates in Europe.  In this light we are pleased to see that the majority of our positions have been covered by MEP Reda in her draft report on the implementation of of the InfoSoc directive.

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.

The Little Prince: almost in the Public Domain

This week is Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s subject is the Public Domain.

Despite nearly 25 years of efforts to fully harmonise digital law in Europe, the road to a harmonised copyright system is certainly not a speedy highway. In fact, each Member State still has its own copyright system that applies within its own territory. One of the areas where this is most visible are the rules for determining when a particular work enters the public domain because the copyright term has expired.

The Little Prince 6th Antoine de Saint-Exupéry was killed in 1944, during a flight over the Mediterranean Sea. “The Little Prince”, his best-known book, is the third most popular novel in the world, translated into over 250 languages over more than 600 translations. More than 80 million copies have been printed. If you know a bit about the rules for determining when a work goes out of copyright, we can assume that on 1st January 2015 “The Little Prince” became part of the public domain. This is because in France copyright lasts for 70 years after the death of the author. And since Saint-Exupéry died in 1944, this would put “The Little Prince” into the public domain in France.

However, the harmonization of the duration of copyright is not uniform. In France, works of authors who died for France during the First and Second World Wars benefit from additional copyright protection. Copyright for works created by these authors is extended for an additional 30 years to compensate for the losses and difficulties in the commercial exploitation of their works during the war.

Beginning this year, “The Little Prince” is in the public domain almost everywhere in Europe. But in France, the novel will pass into the public domain sometime between 1 May 2033 and 1 January 2045, depending on your interpretations of the rules! Interestingly, Canadians have been freely using “The Little Prince” for the last 20 years, as copyright expires there 50 years after the death of the creator.

The French exception may seem surprising to you, but it’s not an outlier. There are multiple other such exceptions present in various European countries. When such irregularities are combined with inconsistent terminology within the European Directives (not to mention differences in the ways the Directives are implemented at the national level) along with unreliable information on the dates of death of the authors, we see we’re a long way from sensible harmonization of copyright law across Europe.

Fortunately, there is good news: establishing a single European framework that enables cross-border flow of products and services is one of the priorities of Jean-Claude Juncker, the newly elected President of the European Commission. The recent report by MEP Julia Reda on the evaluation of the Copyright Directive (2001/29/EC), and tweets made by Commisioner Oettinger and Vice-President Ansip about the need of new copyright rules, are all hopefully signs of coming change. We hope that we’ll be able to report about it during Copyright Week 2016.

(Paul Keller wrote about “The Little Prince” and the public domain on this blog in 2012).

Representing the Public Domain at the EU Observatory on Infringements of IPR

Last week Communia joined the “European Observatory on Infringements of IPR” which is hosted by the European Union’s Office of Harmonization in the Internal Market (OHIM). The Observatory’s task is to provide the EU Commission with insights on every aspect of IPR infringement. It does so primarily by conducting surveys and studies on how, where and why IP rights are violated by whom and to what extent. In addition is helps coordinate across borders the efforts of various institutions involved in law enforcement. It also runs general as well as focussed awareness campaigns in the field of IP. This is done in conjunction with a permanent stakeholder dialogue, which is organized in working groups and a yearly plenary.

The EU observatory on infringments of IPR
The European Observatory on Infringments of IPR is a unit of the EU’s Office of Harmonization in the Internal Market (OHIM), which is located on top of a cliff overlooking the Mediterranean sea in Alicante, Spain

As part of this year’s plenary, held last week in Alicante, Spain, Communia joined the observatory as only the seventh civil society group. By far the largest stakeholder group are 58 industry representatives, followed by 28 public sector institutions and 10 representatives with an observer status, which include international orgnizations such as OECD but also US interest groups. This heavy industry bias of the observatory members has to do with the Observatory’s origin being an initiative from the world of industrial property (such as trademarks, registered designs) and insititutions fighting product counterfeits entering the EU internal market.

The decision to join the observatory was prompted by the fact that the Observatory increasingly moves its focus also to the field of copyright and related rights. A major part of its agenda for 2015 deals with finding out about what children and young adults know and think about counterfeit goods and copyright violation, and with running campaigns to raise the yonger generation’s awareness of the damage done by rights violations.

The observatory is also working on a “Study on Open Licensing and the Public Domain”, both of which are core fields of expertise of COMMUNIA Association as a network and of its members. We can draw on this knowledge and also on the material produced by the Communia Project between 2007 and 2011 to support the Observatory with such studies. This offer was met with great interest by the research staff involved.

Over and above support for the study, Communia will strive to make a case for the Public Domain as a concept and as a pool of re-usable cultural heritage whenever that seems appropriate in the work of the Observatory, especially in the relevant working groups. The necessity to do this is obvious, as the Public Domain does not have too many other supporters and its value for society is often overlooked.

COMMUNIA policy paper on digitization agreements

The aim of this policy paper is to make policy recommendations for cultural institutions to preserve the Public Domain when using digitization services provided by private entities. This becomes particularly relevant 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 Public Domain ensures the free dissemination of knowledge and provides everyone with the potential to access and create new works based on previous works. Thus, all Public Domain works should be free for everyone to use and reuse. Yet, as many cultural heritage institutions are entering into contractual agreements with third parties for the digitization of Public Domain works, there are serious concerns regarding the conditions of access, use and reuse of the resulting digitized copies.

Ideally, digital copies of Public Domain materials would be made immediately and freely available to the public. However, in practice, many of these public-private partnerships impose contractual restrictions that limit access and re-use of Public Domain materials. These restrictions have the same effect as introducing a new proprietary right over the digitized copies of Public Domain material, thereby substantially limiting the use and reuse of content that belongs to the common cultural heritage by subjecting it to a requirement of prior authorisation.

This risk is further increased with the introduction of the PSI 2013 regime, which allows the conclusion of exclusive agreements between private entities and PSBs under restrictive terms and with a potential perpetual validity.

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Calculating the Public Domain

Many people recognise the value of works which are in the public domain and may even be familiar with many initiatives that provide access to public domain works (such as the Internet Archive, Wikimedia Commons, Project Gutenberg, etc). Yet, many people do not have a very clear conception of what the public domain is or why it is important.

New digital technologies make it possible for the public to access a vast quantity of cultural and historical material. Much of this material is in the public domain, and ongoing digitisation efforts mean that much more public domain material (in which copyright has expired) will be made available for the public to enjoy, share, and reuse.

However, it is often difficult to determine whether a work has entered the public domain in any given jurisdiction, because the terms of copyright protection differ from country to country. And  people are sometimes unclear about what can or cannot be done with works in the public domain. Copyright laws are complicated, and for the layperson it may not be clear how they apply in relation to a specific work. Though there are many international and multinational copyright agreements and copyright organisations, the exact details of copyright law vary from one country to another. Different countries have different legal systems and traditions – and copyright laws reflect these differences. Hence, given that works enter the public domain under different circumstances depending on the country, oftentimes the status of an individual work cannot be universally established. Rather, it needs to be evaluated on a case-by-case basis for every jurisdiction.

In order to make public domain determinations a less daunting task, the Open Knowledge Foundation has been working on the development of the Public Domain Calculators (http://publicdomain.okfn.org/calculators/) – a tool that enables people to determine the copyright status of a work (in the public domain, or not), thus helping users realize the value of artworks from the past.

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Preserving the Public Domain

Copyright Week provides a timely opportunity to reflect on Communia’s mission to preserve the public domain and our common heritage against copyright extension, misleading attempts to privatize public domain works, the shrinking of users’ rights, and the general trend in extending the scope of copyright in ways detrimental to the production of culture and knowledge.

Communia began as a European Union-funded research network, consisting of an initial group of 50 researchers, practitioners and activists, and led by Juan Carlos De Martin. Communia was joined by non-European institutions in order to study the public domain at large, and also related topics such as open licensing, copyright exceptions and limitations, orphan works, and open data. Unusually, the Communia project produced a piece of work not foreseen in the original grant agreement, the Public Domain Manifesto. The Manifesto is an emblematic text stating that the public domain, the obverse of copyright, is a wealth of works which are difficult to identify and to define. The Manifesto proclaims, Public Domain is the rule and that copyright is the exception.Continue reading