The Compromise text was adopted in early April (to our knowledge, it has not been widely circulated but has been made available online by the Austrian Parliament). The adoption of this text at a rather early stage of the legislative procedure, suggests that a possibility of a conclusion at first reading exists. However, it does not take account of the draft reports released by the Parliamentary Committees a few weeks after. As we highlighted earlier, the opinion drafted by MEP Helga Trüpel for the CULT Committee shares some core arguments with Communia’s policy. The deadline for tabling amendments on the leading Committee’s report (JURI) is June 6th.

It is thus interesting to look more closely at the content of the Compromise text to have a better idea about what the Council would be ready to vote for at the present time of the procedure (more than the Parliament insofar as the guessing about the final parliamentary vote is very uncertain at this stage of the procedure), although new matters of discussion may arise during the amendment and ‘lobbying’ period.

Let’s focus on the main issues raised in our policy paper:

Transparency

From Communia’s perspective, the general availability of information about membership and represented repertoire is essential. The Presidency proposal considers, like the Commission, that CMOs should only be held liable for a limited obligation of information, ignoring the specific needs of a wide-range of users. As highlighted in our policy paper, users are not properly considered, whereas the categories of beneficiaries of such access to information shall be much wider than those listed in Article 18. The rearranging of the corresponding provisions (namely the removal of Art. 18.2) by the Presidency does not improve the flaws of what was originally proposed by the Commission.

It is regrettable that the Directive proposal does not properly distinguish between the needs of users and the needs of the public (as broadly stated under Article 19: ‘Disclosure of information to the public‘). As we pointed out, users have specific needs but shall also be understood widely, beyond the usual contractual parties of CMOs, so that other potential licensees, including developers or any other persons or entities needing to contract with a CMO, can rely on accurate licensing information. ‘Users’ shall also be understood by CMOs as future contractors (even if still part of the ‘public’). This being said, the Compromise text aptly suggests adding standard licensing contracts and standard applicable tariffs as a category information subject to public disclosure (Art. 19).

Open content licenses and ability of rightholders to opt-out of collective management

Although only in a (legally non-binding) Recital, the freedom of rightholders to dispose of their works is expressly stated:

Recital 9: “The rights, categories of rights or types of works and other subject matter managed by the collective management organisation should be determined by the general assembly of members, without prejudicing the right of the rightholder to make such a choice under this Directive. It is important that the rights and categories of rights are determined in a manner that maintains a balance between the freedom of rightholders to dispose of their works and other subject matter and the ability of the organisation to effectively manage the rights” (emphasis ours).

However, the choice of rightholders is bound by what is allowed under this Directive, which is … not much. Indeed, the wording of Article 5 of the proposed Directive on the rights of rightholders, notably as regards their ability to terminate the mandate for the management of their rights with a collecting society or to withdraw from a collecting society is still the same as what was proposed by the Commission. As already highlighted in our policy paper (p. 5), the Commission considers that the freedom of choice of rightholders does not concern their works – which would have allowed them to opt-out of collective management and choose alternative licensing models like open content licenses – but only relates to their ‘rights, categories of rights or types of works and other subject matter‘.

As written in the Commission’s proposal, ‘the Directive should not prejudice the possibility for rightholders to manage their rights individually, including for non-commercial uses‘ (end of Recital 9). However, it is not said how this shall concretely take place for CMO members, whose ‘opting-out’ modalities are still unclear. The strategy that collecting societies have to devise regarding open content licenses, in the face of the growing trend of non-commercial uses and of rightholders’ will to grant non-exclusive licenses on their works, is still unclarified, if not inexistent.

It is worth mentioning that the ability for CMOs members to opt for open content licenses has been recently proposed in France in a national policymaking instrument (the Lescure Report, released earlier this week: see our comments), which acknowledges the importance of allowing an harmonious legal interaction between open licenses and collective management.

Moreover, the said ‘balance’ between the free choice of rightholders for the management of their works ‘and the ability of the [collective management] organization to effectively manage the rights‘ (see Recital 9 cited above) instills the idea that CMOs may claim for the necessity for them to manage all rights for the sake of the certainty of their repertoire. The respect of this ‘balance’ may give rise to litigation between CMOs and their members, thus potentially calling for arbitration (perhaps from the EU Court of Justice which is used to decide on other kinds of ‘balances’ inside the copyright law system).

Although unchanged as regards the ability of rightholders to ‘opt-out’ from collective management, the language of Article 5 now suggests imposing on CMOs an obligation to contract with rightholders. This is most likely motivated by the concerns expressed by some (including the European Parliament) with respect to cultural diversity, to prevent collecting societies from refusing to administer rights in certain works solely on grounds of their cultural origin or limited economic value. Such obligation for CMOs is a good thing for the certainty of repertoire towards users, provided that it is complemented by an obligation to keep track of all the information about the related rights and rightholders, and by an obligation to disclose it accurately to all users and potential users (which is presently not the case as underlined above).

Furthermore, the Compromise proposes to add a reference to ‘the records kept by a collective management organisation (which) should allow for the identification and location of its members and rightholders‘ (Recital 10). If this is not to resolve the ‘orphan works’ issue, it has nonetheless the advantage of setting the responsibility of collecting societies to provide information about the identification and the location of their members.

EU policymaking on collective management of copyright has mainly focused on the need of commercial (music) services for simplified and multi-territorial licenses, which has contributed to the lack of vision on non-commercial uses. Let’s hope that the draft CULT Committee report will help the Parliament adjust its amending proposals on the Directive proposal.

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The Lescure Report is a new step in the policymaking on creative content in the digital society in France. Following the presidential elections last year, the new government wanted to induce reflection about the future of the HADOPI system adopted by the former government, and more generally on the protection of national culture on the Internet. The ambition heralded by this mission was big, so were the expectations about the resulting report.

The Report addresses a wide range of issues (the first volume of the Report is about 480 page-long) spanning copyright exceptions, non-commercial sharing, liability of intermediaries, financing models to support culture digitization, digital libraries, online clearing of rights on photographs and copyright enforcement. Among its key proposals, the Report argues for the prolonging of the graduated response, albeit under new conditions and under the responsability of another administrative authority (the HADOPI authority would disappear), as well as a new taxing system targeting telecommunication operators meant to finance the transition of cultural industries to the digital age. Moreover, the Report concurs with conservative views on copyright enforcement and discards the proposals elaborating alternative remuneration systems for rightholders and legalizing non-commercial sharing of copyrighted content. Not surprisingly, it has been criticized for being skewed towards industrial interests and in carrying on the repressive policy against webusers (read the critical view from La Quadrature du Net on the ‘wishful thinking and real dangers’ of the Report).

Despite these flaws, the Report takes account of some core considerations on the public domain and open licenses (as reported here), which represents a positive step considering that these issues have been overlooked for a long time by copyright national (and international) policymaking. Among its 80 proposals, the Report highlights the necessity to ‘protect and valorize the digital public domain’ (pp. 38 & 447 et seq) and contains proposals in line with some of Communia’s policy recommendations:

• A positive definition of the public domain

The Report proposes to insert a positive definition of the public domain in national copyright law, as recommended by the Public Domain Manifesto (cited by the report) and Communia at the international and European levels (see our Positive Agenda for the Public Domain).

Although the Report focuses on the national context, it aptly refers to the international framework and to the WIPO working agenda addressing the public domain issue. As WIPO Observer, Communia has had the opportunity to express its views during the last WIPO/CDIP meetings (see our reports here and here) and to call upon such positive definition of the public domain into lawmaking.

• Towards clarification of the public domain status of works

In order to improve the visibility of public domain works, the Report argues in favor of the development of open registries of metadata and for the use of technical measures like the ‘Public Domain Mark’ developed by Creative Commons. These proposals are in line with our recommendations.

• Preventing the privatisation of the public domain

The Report warns against the ‘re-appropriation phenomenon’ and the claims for new layers of rights on digitized content (like the rights claimed for the creation of databases), thus restricting the scope of the public domain. The Report expressly concurs with Communia’s recommendation stating that what is in the public domain should stay in the public domain after digitization (see our Recommendation #5 and pp. 452-453 of the Report).

Further, the Report points out the misuse of technical protection measures restricting the use of public domain content. It suggests strengthening the regulation on technical protection measures to look more closely at their interaction with works belonging to the public domain, but also with software and measures of rights management information. However, these good intentions are likely to go unheeded, as highlighted by the French organization on free software April).

• Conciliating open access and valorization of public domain works

Digitization agreements between cultural heritage institutions and private enterprises should not lead to the privatization of the public domain. The Report recommends that public interest organisations reaching such private-public partnerships should promote large and open access to public domain works and restrict exclusivity provisions. Unfortunately, reality has shown that public institutions do not hesitate to enter into exclusive agreements with the private sector to the detriment of public access to the cultural public domain (see our press-release denouncing the agreement signed by the French national library BNF).

The Report invites to ‘replace the narrow vision privileging financial interests with a more complex economic and social approach’ (p. 453). More especially, it argues for the promotion of added-value services which develop on raw data and provide financial resources partly compensating digitization costs without restricted access to content. Such standpoint tends to acknowledge the economic potential of innovative services building upon open data and public domain content, which goes in the right direction.

• Open licenses

The Report contains further recommendations on open licenses, which has been welcomed by Creative Commons France. More particularly, it encourages collective management organisations to devise solutions allowing for the coexistence of open licenses, notably by allowing the members of collecting societies to opt for such licenses (Recommendation #77). This is a significant point that we have raised in our comments on the upcoming EU regulation on the collective management of copyright.

• Voluntary dedication of works to the public domain

The Report also argues in favor of the voluntary dedication of works to the public domain by their rightholders (Recommendation #76), a principle that we support strongly before WIPO.

• … and ‘orphan works’?

The Report contains interesting measures on the obligation of publishers to commercially exploit works online (pp. 69 of the Report), thereby seeking to reduce the phenomenon of works whose rightholders cannot be identified or located (‘so called ‘orphan works’). It is nonetheless disappointing to see that the Report does not tackle the issue of ‘orphan works’ properly and mistakenly relies on the proposals pushed forward by national publishers with respect to ‘(commercially) unavailable works’ (according to a national law adopted last year on unavoidable literary works, which has been heavily criticized as disadvantaging authors). Whereas the EU adopted a Directive on ‘orphan works’, the report misses the opportunity of assessing concretely the impact of this EU regulation in national law.

——

The Report has likely taken account of some of the arguments made during the hearing process undertaken during the past months, notably those from Mélanie Dulong de Rosnay (Co-Founder and President of Communia), and Lionel Maurel (aka @calimaq, Co-Founder of the French organization SavoirsCom1, who disclosed some legal proposals to strengthen the public domain on a national level).

The question is now whether the French government will be able to arbitrate wisely amongst all the arguments put forward in the Report. The public domain being adjacent to other kinds of measures, such as those promoting graduate response solutions, this creates a strange mixture in which policymakers and citizens might have trouble seeing clear. What is the benefit for the digital public domain to be exposed in such a policymaking instrument? The future will tell.

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Based upon the draft Directive on certain permitted uses of orphan works tabled by the Commission in 2011 (COM/2011/0289), about which COMMUNIA expressed some Policy Recommendations, the two European regulation bodies have come to an agreement. Although the deal is said to be ‘informal’ (it still has to get final approval from the Parliament’s Committee on Legal Affairs, Parliament as a whole and in the Council), it shows the ongoing efforts of the European regulator to move on with the ‘orphan works’ issue. The text of the agreement has not yet been made available. According to the press-release from the Parliament’s Committee on Legal Affairs:

“This legislation would allow everyone to access such “orphan works” and take forward the project of making Europe’s cultural heritage available online.”

It seems that the agreement would not bring major changes to the Commission’s proposal. This lets us think that our concerns about the shortage of the Directive are to remain, especially as regards its impact on the digital Public Domain. Nevertheless, a few elements unveiled by the press-release deserve some comments.

‘Orphan’ status granted after ‘diligent search’:

According to the Directive proposal, a work would be deemed to be ‘orphan’ if, after a ‘diligent’ search made in good faith, it was not possible to identify or locate the copyright holder. The Parliament and the Council concur with the Commission, without adding further precisions about the criteria to be applied to such a ‘diligent search’ process imposed to users.

COMMUNIA argued that the ‘diligent search’ process as proposed by the Commission was flawed and short-sighted. In the meanwhile, the Parliament and the Council seem not to have ceased the occasion to improve the criteria set forth by the legislation proposal, which do not enable full potential of ‘orphan works’ uses and fail to guarantee legal certainty for ‘orphan works’ users.

For ‘any audiovisual or printed material’…

The Parliament and the Council agreed on the categories of works being encompassed by the ‘orphan work’ status, while adding some elements to the Commission’s proposal. The press-release states that ‘orphan works’ status would cover:

“(…) any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.”

Whereas photographs were surprisingly absent from the Commission’s draft (as it was already highlighted in our Policy Recommendations), their express inclusion as a category of works eligible for ‘orphan’ status would be an improvement.

… even unpublished:

As the EU Council had already opened the door to include some unpublished works into the scope of ‘orphan works’ – albeit rather timidly and not fully in line with COMMUNIA’s Policy Recommendations arguing for a clear inclusion of unpublished works (as ‘the orphan works problem is especially acute in respect of unpublished works’) – the message seems to be reasserted more strongly in the latest draft legislation document worded under the Danish Presidency. According to the press-release:

“[The ‘orphan’ status] would also apply to works not published but nonetheless made available by institutions, provided that they could reasonably assume that the right holder would not object to this act.”

Even if the inclusion of unpublished works is still not clear enough and does not fully cope with the ‘orphan works’ problem, the EU regulator seems to be ready to guide Member-States in this respect (contrary to the former Polish Presidency note leaving Member-States decide whether unpublished works could also be deemed as ‘orphan works’).

Securing the interests of public institutions:

The Parliament says to have secured provisions to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works. These provisions would aim at limiting the risk from future copyright infringement claims (the press-release quotes the example of the Google Books project having been blocked in court).

When right-holders come forward to claim their rights on a work after it has been placed on line, the Parliament and the Council would like to limit the amount of money public institutions would have to pay to authors as compensation:

“Compensation would have to be calculated case by case, taking account of the actual damage done to the author’s interests and the fact that the use was non-commercial. This should ensure that compensation payments remain small.”

Such a wording would tend to place public institutions’ interest in front of those of authors in situations where the latter claim rights later in the process of ‘orphan works’ use. The Parliament and the Council say to have further agreed on a new provision allowing public institutions to generate some revenue from the use of ‘orphan works’ to pay search and digitisation costs.

However, we still don’t know the exact wording of these provisions and their genuine impact on ‘orphan works’ use for public institutions.

Lidia Geringer de Oedenberg (Polish MEP for the S&D), who is heading the negotiations on this legislation as Rapporteur in the Parliament, welcomed the deal as a: “first step towards harmonisation of copyright rules in the EU“. Although this assertion sounds rather sibylline in the context of an EU copyright regulation already containing several harmonization Directives, it reflects the high expectations the European regulator has about the legislation on ‘orphan works’ within the whole EU copyright legal system.

In the meantime, we are waiting for the consolidated version of the Directive to be formally released to further comment on it. More to come soon (probably this week).

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The Report of the eponymous Thematic Network provides a basis for action taken up by its successor, the COMMUNIA International Association. The document is depicting a wide range of issues and is proposing answers to crucial questions:

• What is the public domain?
• The Value of the Public Domain for Europe
• Public Domain Challenges and Bottlenecks
• The Public Domain and the European Commission Strategy
• COMMUNIA and the European Public Domain Project
• What Can Europe Do for the Public Domain?

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As the European Commission is presenting a proposal for a Directive amending the 2003 Directive on re-use of public sector information, the question is now about how to implement the proposed amendments in practice, with the purpose of enhancing innovation and genuine public access to open data. Since 2003, the technical and societal environment of public sector information has changed, while raising issues deserving an adapted legal framework, be it as regards IP rights, competition and the protection of private data and access to information. While the Commission representative addresses the EU “Open Data Strategy”, all the high level experts and academics gathered at the conference (Marco Ricolfi, Séverine Dusollier, Hanns Ullrich, Josef Drexl, Miram Bitton, Mireille van Eechoud…) seem to agree that the legal minefield might be difficult to avoid.

COMMUNIA’s Policy Paper on the Commission’s proposal of amendment to the PSI Directive is publicly presented at the conference on January 24^th by Daniel Dietrich from the Open Knowledge Foundation. While COMMUNIA supports the need to amend the PSI Directive, and praises the widening of its scope to cultural heritage institutions (despite the amendments do not include all of them), the Association is suggesting several improvements to the proposed text, insisting on the fact that the Public Domain would deserve a more consistent policymaking at the European level.

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The 1^st Berlin Symposium on Internet and Society was held last week (October 25-28, 2011), on the occasion of the inauguration of the Humboldt University’s new multi-disciplinary Research Institute on Internet and Society (IIC, Institut für Internet and Gesellschaft). The event gathered many of the most prominent worldwide experts on Internet issues, accross academic fields and professional horizons.

During the opening session, Prof. Jeanette Hofmann insisted on the fact that research on internet and society has to reach areas beyond “intellectual property” and the usual categories delimitating the way we experience and think the Internet. In that respect, she cited the Public Domain as something that should deserve further study and expertise. This should pave the way to future exciting research projects, which COMMUNIA is keen to follow closely.

The conference proposed many workshops inviting participants to challenge the way we think the digital world (see the sessions programme). One of them was dedicated to The Digital Public Domain: Relevance and Regulation. Based on the excellent paper drafted and presented by Leonhard Dobusch, the discussion was led by Martin Kretschmer, Juan Carlos de Martin and Felix Stadler, and then open with the workshop participants (among whom Prof. Niva Elkin-Noren, Prof. Ingrid Schneider…).

Pink sunset on the Spree behind the Public Domain session speakers from left to right Martin Kretschmer, Leonhard Dobusch, Felix Stadler, Juan Carlos De Martin

COMMUNIA was in the room. We felt at home and refreshed.

What is (in) the “Public Domain”? Trying for an empirical mapping.

In his paper, Leonhard Dobusch traces the history of the concept of “Public Domain”. Interestingly, the notion of Public Domain within the copyright law system was born in the US. In Germany, the concept is covered by a terminology that does not bear the same meaning (“Gemeinfreiheit”). Dobusch’s paper thus provides for interesting elements as to the historical and cultural scope of the very concept of Public Domain.

It is high time for policy and law makers to propose a positive definition of the Public Domain within the IP regulatory framework. The Public Domain is originally negatively defined, as what is not protected, as the amount of “derivative things”, whereas it shall include positive rights, such as the right to use, to exclude, to use, to transfer and even to waste…

In this definition task, an empirical mapping of the digital public domain, a thorough assessment of what the public domain means in reality for creators, users and all stakeholders, are necessary.

This search for a “positive” definition of the Public Domain implies a discourse going beyond the usual – and short-sighted – “no rights” area. It should also induce the effort to look at the public domain as a wide and rich area not only containing content “by default”, as for instance free licenses. The public domain is more complex, and offers much more opportunities (see the WIPO Scoping Study on Copyright and Related Rights and the Public Domain written by Prof. Séverine Dusollier).

The resources offered by the public domain are questioning the IP regulatory framework in an unprecedented way. This should be seen by law makers as a chance to rethink copyright law (and maybe also patent law) towards the widely claimed better balance between rights holders and the public interest.

For researchers and social scientists, the question about how the definition and mapping effort shall be undertaken is arising. Would categorization be relevant without risking to limit the scope of the Public Domain? The public domain is a changing object, with frontiers depending on the diverse privatization initiatives… To a certain extent, the IP rights are reflected through the public domain, acting as a kind of mirror of copyright.

The empirical mapping of the public domain is necessary, but to what extent? How far is it able to go? The issue is to compare the different shades of gray, thus leaving some space for what cannot be clearly defined. A positive public domain may not necessarily consist in (positive) “rights”, but can also encompass diverse practices. The scientific stake is here to identify sequencies of commodification and of decommodification.

Does the public domain have to be “mapped” under a unified term? As a matter of fact, the public domain is a concept that already brings together many different actors and builds advocacy coalitions. The public domain is the result of diverse political pressures, and is not necessarily the outcome of clearly defined policy objectives.

The question is: what do we want to achieve by trying to define the public domain? If innovation shall lead this effort, then specific criteria should be proposed. Or maybe we shall go back to IP rights as the main reference, and try to limit the scope of rights from within their own regime? These questions deserve some discussion amongst social scientists.

Building the Public Domain as a “mirror”? Reflecting surface on the terrace of the nhow Berlin Hotel, venue of the conference

How shall the Public Domain be regulated?

The societal and legal relevance of the public domain is obvious, notably as a pre-condition determining copyright and authorship. What is in the public domain shall not be subject to private protection.

The empirical mapping of the public domain should help identifying more precisely the economic relevance of the public domain. The regulation framework applying to the public domain can produce some direct effects on the economy, and more particularly on innovation. As a matter of fact, businesses can suffer genuine legal uncertainty when it comes to identify what is protected by IP rights and what is not. The positive economic impact of content being in the public domain is sometimes already acknowledged in practice. For instance, some patent rights holders can decide to donate patentable inventions in order to create a pre-competitive market. Like the “adjustment process” (Schumpeter), the utility of the public domain to improve competition should be demonstrated, although the question about how this aspect should be echoed within legislation remains.

The surrounding global IP policy agenda is also influencing the debate. The ongoing copyright enforcement initiatives conducted at national and international level, such as the Anti-Counterfeiting Trade Agreement (ACTA), are sending messages of intensification of IP protection to society. This can only foster further thinking about alternatives to counterbalance the one-sided “more protection” discourse. The promotion of a digital public domain is part of this reflection.

Prof. Alexander Peukert (Frankfurt University) proposed the creation of an Observatory on the Public Domain (paper available on SSRN). Perhaps the lawmaking solution would be the surveillance of the implementation of public interest principles rather than in positive provisions risking to limit the scope of the public domain?

This sends us back to the “mapping” issue. Does the public domain have to be “mapped” under a unified term? As a matter of fact, the public domain is a concept that already brings together many different actors and builds advocacy coalitions. The public domain is the result of diverse political pressures, and is not necessarily the outcome of clearly defined policy objectives.

The regulation of the public domain raises crucial issues as to the legal environment of information goods we want to shape for the future. Today’s choices will influence society over time. The spatio-temporal metaphor of the “Public Domain” is thus more than relevant… although being more than ever concrete.

During the Symposium, several main issues helping to guide future research have been identified:

• Mapping the Public Domain Empirically: What Areas of the Public Domain are Most Relevant in Different Fields?
• Public Domain and Free Speech: How have technological and regulatory changes of the public domain affected democratic dialogue?
• Public Domain and Innovation: How are public domain material and rights utilized in (inter)organizational innovation practices?
• Public Domain, Governance and Innovation: Why and how do different forms of public domain governance impact innovative processes?
• Public Domain and regulation: What are the consequences of interactions between different types of public domain regulation over time?

Mapping and sketching the Digital Public Domain (by G.Heinzel):

You can find the Symposium draft papers and minutes on http://berlinsymposium.org and learn more about the IIC on their beta-website.

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