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.

At the end of the EU-funded Communia Thematic Network, some members decided to continue the work of the group by creating an international association. Its mission is to raise awareness in, educate about, advocate for, offer expertise on, and research the Public Domain in the digital age– within society and with policymakers, at the EU level and worldwide. The first task was to summarize the policy recommendations contained in the Manifesto to constitute the basis of all the association’s future actions. You can download these recommendation as a set of 14 postcards, each displaying a policy recommendation on a work of art which is in the public domain.

Communia comments on draft legislation, especially European Union Directive drafts, in order to advocate for a more balanced public policy that incorporates the public domain as a vibrant collective resource. The organization has provided feedback and recommendations on a variety of issues, including collective societies allowing authors to use Creative Commons licensing, easier management of orphan works, better access to and reuse of public sector information, and open access to scientific data. Will Communia’s next challenge be the widespread recognition of the benefits to the public domain by European and international law? In 2014, Communia will reply to the EC consultation on copyright and continue follow up work on the public domain as an observer at WIPO. Besides writing policy papers, commenting on legislative proposals, and advocating for the inclusion of public domain in policy conversations. Perhaps the most useful work Communia will be involved with is developing a positive agenda to recognize a full statute for the public domain, with defined rights of its own, so that the public domain will survive and thrive.

The post Preserving the Public Domain appeared first on COMMUNIA Association.

This work-in-progress document presents policy recommendations and strategies aimed at the transnational level, namely WIPO CDIP and SCCR. Legal language will be drafted at a later stage.

Policy recommendations are:

1. 1. Definition of a positive status for the Public Domain
2. 2. Recognition of the validity of voluntary dedication to the Public Domain
3. 3. Facilitating the identification of the Public Domain status

The full policy paper can be downloaded as a pdf: Communia Positive Agenda for the Public Domain and the full text is also available below/after the jump.

Preamble: what is the Public Domain?

The Public Domain consists of all material that can be freely accessed and reused:

• creations which are no longer covered by copyright or related rights,
• information, facts, data, and ideas which are outside of the scope of copyright protection.

These materials are the basis of the exercise of many fundamental human rights and values, such as the right to cultural expression and to education, freedom of expression, citizen democratic participation and economic and social innovation.

Rationale: why strengthen the Public Domain?

The role of the Public Domain, already crucial in the past, is even more important today, as the Internet and digital technologies enable us to access, use and re-distribute information with a marginal cost of zero. It has thus become necessary to reform the copyright system to recognise the existence of the Public Domain, so as to counteract the continuous extension of copyright protection threatening the right to access and reuse culture, education, science and public information for the shared benefit of all creators and members of the society.

Policy recommendations

1. Definition of a positive status for the Public Domain

The Public Domain deserves a positive recognition to better identify works and usages which are available for creators and users to build upon. It should not be defined as a mere non “Intellectual Property” protection zone. This would be consistent with the history of “Intellectual Property”, which used to consider the Public Domain as the rule and copyright as the exception, as a temporary and limited monopoly of exploitation. This crucial balance should be clearly reintroduced within the copyright regulatory framework.

Implementation:

1.1. Positive definition

Copyright law should include a definition for the Public Domain.

Proposed legal language:

The Public Domain consists of all material that can be freely accessed and reused. This shall include:

1.1.1. Material being no longer covered by copyright protection: these include copyrighted works but also data, databases, compilations, performances, phonograms and broadcasts subject to copyright-related protection.

For example, Chilean Law No. 17,336, article 11 recognises the existence of the Public Domain as a common pool of works that “may be used by anyone, provided they respect the ownership and integrity of the work.” This includes, inter alia, “(a) Works whose term of protection has been extinguished.”

1.1.2. Information, facts, data, and ideas which are outside of the scope of copyright protection: these include all materials that are not eligible for protection under copyright or related rights.

Copyright legislations usually provide a list of material subject to protection but not of items which should remain out of protection. This contrasts with patent laws in many jurisdictions, which often include specific provisions stipulating what is specifically excluded from protection.

1.2. Legal safeguarding

The Public Domain should be safeguarded from private appropriation and closures through legal, contractual or technical barriers. Works that are in the Public Domain in analogue form should stay in the Public Domain once they have been digitised.

Implementation:

1.2.1. Safeguarding the Public Domain from private appropriation

A positive definition of the Public Domain should be accompanied by guarantees of freedom of access and re-use for all, without the possibility for adding legal, contractual or technical restrictions.

The WIPO 1996 Treaties should prohibit the use of technical protection measures on Public Domain material.

There should be a system for legal recourse allowing Public Domain users to prevent attempts of Public Domain misappropriation. Legal sanctions should be devised to prevent false or misleading attempts to claim exclusivity over Public Domain material.

For instance, Chilean Law No. 17,336, article 80 provides that “(a) anyone who knowingly reproduces, distributes, makes available or communicates to the public a work belonging to the public domain […] under a name which is not that of the true author” or “(b) anyone who claims or demands economic rights in works in the public domain” shall be “deemed to have committed an intellectual property violation.”

1.2.2. Preserving the digital Public Domain

Digital reproductions of works that are in the Public Domain shall also belong to the Public Domain. The use of works in the Public Domain should not be limited by any means, either legal or technical.

The internet enables the widespread re-use of digital reproductions of works whose copyright protection has expired. The Public Domain status of these works means that there is no owner who can impose restrictions on their reuse. Nonetheless, the owners of the physical works (such as heritage institutions) can consider themselves entitled to control digital reproductions and impose restrictions on their reuse conditions. However, the digitisation of Public Domain works does not create new rights: works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitised.

Therefore, the law shall consider such restrictions to access and reuse of digitised Public Domain material as void (with possible legal sanctions).

2. Recognition of the validity of voluntary dedication to the Public Domain

Dedicating a work or any copyright protected item to the Public Domain should be considered as a legitimate way to exercise one’s exclusive right in order to contribute to a common pool of reusable works. (We recommend the use of “dedication” to the Public Domain as a more positive expression than “voluntary relinquishment of rights”).

The legal enforceability of voluntary dedications (or “rights relinquishments”) should be recognised in all jurisdictions and interpreted as compatible with rightholders’ moral rights.

A positive status for the Public Domain should recognise in all jurisdictions the legitimacy and enforceability of voluntary dedications to the Public Domain by the use of tools such as CC0. Moral rights should not be seen as impediments, as dedicating a work to the Public Domain is in fact a way to exercise one’s moral rights. Since moral rights are compatible with the Public Domain, they are also compatible with the voluntary Public Domain.

For example, Chilean Law No. 17,336, article 11 stipulates that the Public Domain shall include, inter alia, “(c) works whose owners have waived the protection granted by [copyright] Law” which “may be used by anyone, provided they respect the ownership and integrity of the work.”

Besides, the mandates between collective rights management organisations and their members should guarantee the ability of rightholders to fully exercise their rights to dedicate their works to the Public Domain.

3. Facilitating the identification of the Public Domain status

It is difficult to assess whether a work is in the Public Domain due to the complexity and the lack of harmonisation of national copyright rules. The need for legal certainty for users in this respect calls for clarification. Beyond registration and Rights Management Information systems, copyright law shall allow for a clear identification of the Public Domain status of a work or any subject-matter eligible for copyright or copyright-related protection.

Implementation:

3.1 Simplified and harmonised copyright duration and territoriality rules

The rules to determine the term of copyright protection have become so complex that it is almost impossible to establish with certainty whether a work or other subject matter is protected by copyright or whether it is in the Public Domain. Harmonising the legal framework with regard to copyright duration and territorial scope would allow for an easier identification of Public Domain contents across the world.

The way to reduce the divergence between national legislations as regards copyright scope and duration should be clarified at WIPO and EU levels.

3.2 Rights Information Measures

The role of Rights Management Information (RMI) in the identification of the contents of the Public Domain should be recognised. The use of a “Public Domain Mark” such as the tool developed by Creative Commons or a stronger equivalent with metadata carrying the stamp of the declarant – be it a national library, the ministry of culture or public and private registries – would be extremely useful to identify Public Domain material and prevent their misappropriation by adding a layer of rights.

Such technical informational tools identifying Public Domain contents shall be coordinated on a trans-national level by existing rights management structures such as collecting societies.

The definition of “Rights Management Information” in the 1996 WIPO Treaties should include any electronic information pertaining to Public Domain material as recommended by Prof. Severine Dusollier.

3.3 Registration tools

The relevance of registration tools to help identify and locate rights holders and Public Domain contents has to be acknowledged and further analysed. Easier identification and location of rights holders and Public Domain material would help avoid situations like the “orphan works” phenomenon and foster innovative digitisation initiatives. In this respect, the re-introduction of copyright protection formalities would deserve further analysis.

In order to prevent a default protection system being not in line with both digital needs and rightholders’ will for less protection, full copyright protection should only be granted upon registration. Non-registered items eligible for copyright protection should only get moral rights protection. This would help users identify resources being in the Public Domain, either at the end of rights duration or following a Public Domain dedication.

The post COMMUNIA Positive Agenda for the Public Domain appeared first on COMMUNIA Association.

The work of Communia is based on a set of 14 policy recommendations which aim to support policies that enable a rich and accessible Public Domain. In light of these recommendations, Communia welcomes the development of a strong Open Access (OA) policy at the European level around the following main ideas:

• All publicly funded research outputs and educational resources must be made available as open access materials (aligned with the Budapest Open Access Initiative).

• Notwithstanding the need to support OA policies, access to copyright protected material for education and research purposes must be improved by strengthening existing exceptions and limitations to copyright, and broadening these exceptions to cover uses outside of formal educational and research institutions.

Social and Economic Meanings of Open Access

Open Access is defined by the Budapest Open Access Initiative (BOAI) as the free availability and unrestricted access of research results, without financial, legal or technical barriers. According to the revised BOAI recommendations, research results should be made available:

• Without payment by the reader,

• Without contractual, legal, or licensing restrictions on use or reuse other than integrity and attribution of the author,

• Without technical restrictions which might prevent indexing, mining, searching, filtering and any other automatic processing making research more useful and likely to be connected with related results for the advancement of research,

• When possible, as “libre OA” (which combines free access as well as liberal open licensing) – preferably under a Creative Commons Attribution (CC BY) license or equivalent.

OA is beneficial for the research community, for the economy and for society as a whole. Researchers need to be able to access research results without having to pay expensive subscription fees. They should be able to read and use what they need to be able to perform their work effectively and efficiently. Universities and funding agencies are not able to sustain the rising prices of an oligopolistic journal publishing industry. Even the most well-funded libraries (such as Harvard University and the University of Munich) have had to cancel journal subscriptions because they cannot afford to continue paying the subscription fees.

Academic research is mostly financed through public funding. The current system oftentimes results in the government essentially paying for the research several times: first, when the governmental entity awards research grants; second, when the government subsidizes the salaries of the academics who serve as peer-reviewers; third, when the government pays for libraries in research universities that subscribe to the journals. The public should receive a better return on the investments being made for the research, development, and publication of publicly funded scholarship. OA provides an economic and social return on investment through higher dissemination to citizens, taxpayers, and researchers from other countries and other disciplines, OA fosters interdisciplinary cross-fertilization and international impact.

Open Access quick facts

1. OA is always free (“gratis”) for the reader

At the very minimum, every Open Access model assumes that content is available for free of charge (gratis) to the reader.

2. Two publications models

The two OA publication models, just like the traditional conventional (non-OA) model (with financial, legal or technical barriers), are sustainable ways of not only making knowledge available, but also of conducting business activity. OA requirements can be fulfilled through various publishing models combined with various business models:

• Green OA designates the self-archival by researchers of their publications in institutional or disciplinary repositories, free of charge to the reader. Most non-OA publishers already authorize an author to deposit in a repository, sometimes after an embargo period. For more than 20 years the discipline of physics has seen high levels of green OA deposit and has not lead to subscription cancellation of non-OA journals.

• Gold OA designates publishers or journals which distribute their publications free of charge for the reader under a liberal open license (such as the Creative Commons Attribution license).

Various business models can be employed to cover the costs of Open Access publications:

• Public funding, institutional subsidies, advertising, donations: 100% of scientific publications, both OA and non-OA, already rely on external funding and volunteers authors, referees and editors.

• Paid additional services, such as user statistics or other formats.

• Publication or a submission fee by the author, like in many non-OA journals. However those fees can be waived, depending on the origin of the authors, and cannot be understood as the only model for OA.

Gold OA is compatible with market and cost recovery. Some OA publishers are commercial and profitable. Online OA may increase the sales for printed journals.

3. OA respects research policy and Intellectual Property

A well-written OA policy:

• Is consistent with the rules of copyright, and allows the rightsholder to leverage open licensing to communicate a set of rights to downstream users.

• Does not interfere with the academic freedom of the author to publish in the venue chosen by them.

• Does not preclude rightsholders from pursuing the exploitation (such as through a patent) of the findings within the research paper before publishing the results.

• Is aligned with the current peer-review process. Peer review takes place before any publication, while OA focuses on distribution. Scholarship destined to be released as OA undergo the same peer review as Non-OA articles.

• Is impartial with respect to quality. Both OA and Non-OA publications can be of varied quality, and there is nothing about OA that suggests it is of lower quality; all articles should be judged on their merits.

• Operates in tandem with accepted academic integrity and ethics: OA articles are not more likely to contain plagiarism than Non-OA scholarship.

• Can increase the impact of a researcher’s work. The researcher may be able to receive more citations because articles in OA are more likely to be cited than non-OA papers. OA is beneficial for the career of all researchers as readers and as authors.

4. OA to data is indispensable

• In addition to OA to articles, OA to the data associated with the articles is important so that other researchers can confirm and reproduce the results.

• OA to data is compatible with both green and gold OA models: repositories and journals can host data in content management systems linked with publications. OA and non-OA journals are requiring the deposit of underlying data and code in order to assess submissions’ validity and quality.

COMMUNIA Recommendations

Communia Association calls the Members of the European Parliament to establish a clear OA policy:

1. OA mandate for all publicly-funded research output

All publicly-funded research outputs (including published articles, preprints or drafts prior to peer-review, books, scientific data, databases, archival records, software source code, conference presentations, audiovisual and teaching material, etc.) must be made available without financial, legal, contractual or technical restriction to access, use and reuse, as aligned with the Budapest Open Access Initiative, as soon as possible.

An OA mandate should require:

• Publications to be released under conditions compatible with a Creative Commons Attribution license.

• Data to be released in the public domain or using a tool such as the CC0 Public Domain Dedication.

• When publications and related data could not be released under those conditions, they should be made available at the latest at the moment of publication or immediately afterwards. An embargo of 6 months counting from the date of publication is acceptable.

A mechanism of incentives, control and sanctions should be devised and enforced for entities who do not comply with the policy.

2. Eliminate sui generis rights on databases

The 1996 Database directive, which imposes additional restriction to the use of data contained in databases, has not demonstrated any benefit and should be annulled.

3. Prevent unfair publishing agreements

Publishing agreements precluding authors to archive their research output in OA repositories or banning authors who are bound by an institutional OA mandate should be prohibited.

The post Position on EC Horizon 2020 Open Access policy appeared first on COMMUNIA Association.

– CDIP/10 commenting on Terms of Reference for a Comparative Study on Copyright Relinquishment (document CDIP/10/14),

– CDIP/9 on the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain by the Secretariat (document CDIP/9/INF/2) and

– CDIP/8 supporting the Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2).

Comments on the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain

COMMUNIA International International Association on the Public Domain welcomes the document prepared by the WIPO Secretariat for the tenth session of the Committee on Development and Intellectual Property (CDIP) entitled Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain (CDIP/9/INF/2 Rev.).

COMMUNIA would like to submit proposals to allow CDIP to build upon the reflection suggested by the Scoping Study on the Public Domain drafted by Professor Dusollier (CDIP/7/INF/2. Hereafter: the Study).

First, COMMUNIA suggests that the Committee expand its consideration to other recommendations from the Study, as all of them are extremely valuable and need to be further examined, especially:

– Recommendation 1.e on “orphan works”;

– Recommendation 2.b encouraging legal deposit;

– Recommendation 2.c on the role of libraries.

These recommendations are complementary to recommendation 1f of the Study aiming at identifying what should belong to the Public Domain.

Second, COMMUNIA urges WIPO delegations to select concrete actions that could be developed by CDIP to provide assistance to Member States. On the basis of the recommendations proposed by the Scoping Study, we have the following comments:

– On recommendation 1f on the development of technical or informational tools to identify the contents of the Public Domain:

Registration tools that enable the identification and location of  rights holders are of crucial importance in the context of mass digitization and use of cultural resources, as shown shown by the “orphan works” phenomenon. The development and promotion of these tools need to be encouraged. WIPO has already started to investigate the need for these mechanisms, as demonstrated by the Survey of Private Copyright Documentation Systems and Practices, coordinated by the NEXA Research Centre (available at  http://www.wipo.int/meetings/en/2011/wipo_cr_doc_ge_11/pdf/survey_private_crdocystems.pdf)). The development of such works and rights registries under the auspices of WIPO (similar to the ongoing Global Repertoire Database initiative for musical works) should be further considered. How these registries shall be governed under a comprehensive policy providing for a balance between private and public interests – and how they could be put in place within the Berne Convention framework – require ongoing dedicated discussions. These discussions should also address the role of collecting societies in the administration of common information technology infrastructures allowing such databases to be effective on a trans-national level.

Useful Public Domain legal tools can leverage metadata to help promote the discovery and identification of materials in the Public Domain. For instance, the Creative Commons’ CC0 Public Domain Dedication license and the Public Domain Mark allow identifying works with machine-readable metadata of copyright licensing terms and related information, so that content can be exposed to Internet search engines. By leveraging this metadata, search engines can discern and communicate to end users what is available for reuse, and under which conditions.

– On recommendation 2a and the role of cultural heritage institutions:

Following the input from the UNESCO International Conference on Memory of the World in the Digital Age: Digitization and Preservation, which took place in September 2012 in Vancouver, COMMUNIA suggests that CDIP develop guidelines for memory institutions that curate works already in the Public Domain in order to help them to release digital reproductions of Public Domain works (as well as related notices and metadata they are producing to accompany these works). Oftentimes, museums and libraries add contractual restrictions (terms of use) to access and use of Public Domain works they host on their websites. These practices should end. According to  COMMUNIA policy recommendation #5, “Digital reproductions of works that are in the Public Domain must also belong to the Public Domain. The use of works in the public domain should not be limited by any means, either legal or technical.”

Third, COMMUNIA proposes to bring substantive legal proposals from the Scoping Study to SCCR negotiations for the definition of a Public Domain positive agenda. Having a clear definition of the Public Domain in an international legal instrument and outlining the legal means to prevent the re-enclosure of works in the Public Domain should be considered as agenda items in future SCCR discussions.

In this purpose, COMMUNIA has several recommendations:

1. Defining a positive status for the Public Domain

The Public Domain deserves a positive recognition to better identify works and uses which are available for creators and users to build upon. It is time for copyright policymakers to consider the Public Domain as something more than a mere “non IP protected” zone. Such an evolution in describing the Public Domain would be consistent with the history of “Intellectual Property”, which used to consider the Public Domain as the rule and copyright as the exception, as a temporary and limited monopoly of exploitation.

This positive status shall be reached by:

1.1. Integrating a definition of the Public Domain within copyright law instruments.

1.2. Preserving the Public Domain from private appropriation.

Beyond a positive definition, the Public Domain should be preserved from private appropriation and closures through legal, contractual or technical barriers. Works that are in the Public Domain in analogue form should stay in the Public Domain once they have been digitized.

2. Recognizing the validity of voluntary dedication to the Public Domain

Dedicating a work to the Public Domain should be considered as a legitimate way to exercise one’s exclusive right and as compatible with moral rights. The legal enforceability of voluntary dedications should be evenly recognized in all jurisdictions.

3. Facilitating the identification of the contents of the Public Domain

It is difficult to assess whether a work is in the Public Domain, notably because of the complexity and the lack of harmonized copyright rules pertaining to the duration of protection. There is a need for certainty for users to clearly identify what is in the Public Domain. Beyond registration and Rights Management Information tools, legal security is required in order to assess the status of a work or any subject-matter eligible for copyright or copyright-related protection.

This shall be implemented through:

3.1. Simplified and harmonized copyright duration and territoriality rules

Establishing a harmonized framework with regard to copyright scope and duration would permit an easier identification of Public Domain works across the world.

3.2. Rights Information Measures

The role of Rights Management Information (RMI) should be recognized in the identification of the contents of the Public Domain.

3.3. Registration tools

The relevance of registration tools to help identify and locate rights holders and Public Domain contents has to be acknowledged and further analyzed.

The post WIPO CDIP/10 Comments on the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain appeared first on COMMUNIA Association.

This statement on the Terms of Reference for a Comparative Study on Copyright Relinquishment by the WIPO Secretariat (CDIP/10/14) is following Communia’s previous statements delivered at CDIP/8 and CDIP/9 supporting the Scoping Study on Copyright and Related Rights and the Public Domain by Séverine Dusollier (document CDIP/7/INF/2) and the Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain by the Secretariat (document CDIP/9/INF/2).

Comments on the Terms of Reference for a Comparative Study on Copyright Relinquishment

COMMUNIA International Association on the Public Domain welcomes the document produced by the WIPO Secretariat in preparation for the tenth session of the Committee on Development and Intellectual Property (CDIP) titled Terms of Reference for a Comparative Study on Copyright Relinquishment (CDIP/10/14).

We believe that this document is an encouraging sign for copyright international law-making to commit itself to considering crucial aspects of access to culture and knowledge in recognising the increasing importance of the Public Domain, on the basis of the WIPO Development Agenda Recommendation #16: “Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain”.

A comparative study on the issue of copyright relinquishment will be very useful in order to assess the possibilities offered by voluntary contributions to the Public Domain. Beyond a legal academic study, concrete solutions are needed. We believe however that the language of the Terms of Reference (ToR) could be improved: using a precise vocabulary will ensure a positive mindset for the success of such a study.

Instead of characterizing the Public Domain as  “relinquishment” of rights, it would be preferable to use the term “dedication” to the Public Domain. Indeed, “dedication” to the Public Domain is a more positive expression than voluntary “relinquishment” of rights, similar to how a half-full rather than a half-empty glass reflects the positive value of contributing to a common pool of works that are accessible and reusable for all. Moreover, the reference made in the study by Professor Dusollier (Scoping Study on the Public Domain, CDIP/7/INF/2) about the “voluntary Public Domain” is cited by the ToR themselves.

The use of the term “cultural heritage” has been mentioned as problematic for some delegations and observers as it would create confusion. This concern should be addressed. The target of the study–copyright relinquishment (or dedication to the Public Domain) should be focused primarily on works and subject matters that are or were covered by copyright, neighbouring rights or sui generis related rights. The scope of the study does not and should not pertain to traditional knowledge, traditional cultural expressions and folklore.

On the text of the ToR itself:

– On section II 1. and the objectives of the study

It would be useful to study not only the possible problems and complexities, but also discuss possible solutions. These ideas for solutions should be envisaged from the start, instead of waiting for conclusions in a third stage. Also, we need to identify what would be required to ensure the enforceability of Public Domain dedication tools. We hope that the study will not only raise relevant issues, but will also be action-oriented and propose concrete means to overcome identified problems and explain how dedication/relinquishment can be enabled by applicable law. The objectives of the study should be clear and work toward nimble, implementable solutions instead of waiting for long, drawn out conclusions.

The study should target the relinquishment of copyright / dedication to the Public Domain, as a purpose for a rich and accessible Public Domain to be integrated into the copyright legal framework.

– On section II 2. and the inalienability of moral rights

The Public Domain status of a work does not conflict with moral rights.

Moral rights still apply to works that are already in the Public Domain because copyright has expired at the regular end of the copyright protection term. Voluntary waivers of rights by their owners need not be addressed differently. If moral rights are respected upon the expiration of the copyright term, they are similarly respected when the rights holder voluntarily decides to dedicate his/her rights before the end of copyright protection.

The Public Domain should not be considered as a contradiction to moral rights. On the contrary, the act of dedicating a work to the Public Domain should be fully considered as a way to exercise one’s moral rights. This is why allowing rights holders to express their will in a free and informed manner is important.

– On last paragraphs, point 2

The definition of the term “material”, “including creative industries, the online environment, with reference to collaborative creativity and user generated content, and in regard to materials prepared by not-for-profit and public institutions”, is too generic. In our sense, it would be more appropriate for the concerned “material” to encompass “copyrighted works but also data, databases and compilations subject to copyright-related protection, performances, phonograms and protected broadcasts.”

This clarification should also be extended to the first part of the legal study which should not only focus on copyright but also on other applicable related rights.

The post WIPO CDIP/10 – Comments on the Terms of Reference for a Comparative Study on Copyright Relinquishment appeared first on COMMUNIA Association.

The book is under a CC Attribution license and the PDF can be downloaded here.

”The Digital Public Domain: Foundations for an Open Culture”
18 June 2012
18:30 – 20:00
European Parliament, Brussels, ASP Main Hall
(Ground Floor, in front of the Newspapers Quiosque)

18:30 Welcome: MEP Amelia Andersdotter
18:35 Introduction: MEP Prof. Ioannis Tsoukalas
18:45 The Digital Public Domain – presentation by editors: Melanie Dulong & Juan Carlos De Martin
19:00 Q&A and Discussion / Cocktails
19:45 Closing remarks: MEP Amelia Andersdotter

If would like to attend the event and require access to the Parliament, please register with amelia.andersdotter-office@europarl.europa.eu before June 14, indicating your full name, date of birth and ID number.

More information on the book can be found on the Communia Association’s website.

Link to the invitation on Amelia Andersdotter’s blog.

Edit on 14 July 2012: a video interview of Anne-Catherine Lorrain, Juan Carlos De Martin and Melanie Dulong de Rosnay during the book launch event is available on YouTube. Thanks to Amelia Andersdotter’s team members Felix Reda, Edvinas Pauza and Tess Lindholm.

The post Book launch of ”The Digital Public Domain: Foundations for an Open Culture”, Brussels, June 18th, 18:30-20:00 appeared first on COMMUNIA Association.

1.c. The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point.

1.f. International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance.

2.a. The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).

Document CDIP/9/INF/2 entitled Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain has thus been drafted by the secretariat and presented at this CDIP/9. Melanie Dulong de Rosnay on behalf of Communia made the following statement to support this Information Document Clarifying the Scope of Séverine Dusollier’s study:

“Dear Mister Chairman,

Congratulations on your election.
We thank the secretariat for preparing the document CDIP/9/INF/2 Scenarios and Possible Options Concerning Recommendations 1c, 1f and 2a of the Scoping Study on Copyright and Related Rights and the Public Domain, and support all of these recommendations.

Communia is the international association on the Public Domain. Our mission is to offer expertise and research about the public domain in the digital age.  Communia started as a network funded by the European Commission between 2007 and 2011 anddeveloped a set of policy recommendations to enrich and sustain the Public Domain. Several are in line with the recommendations proposed by Professor Séverine Dusollier and one is explicitly mentioned in the document prepared by the secretariat, proposing to re-establish some formalities: “in order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection”. Registration would serve several means, in particular, help to identify and locate Public Domain works, identify Right Holders and avoid orphan works.

On recommendation 1.f to develop informational and technical tools to identify content which is in the Public Domain, we think a good way of enhancing the interoperability of private registries, Public Domain calculators and public databases would be to recommend or even mandate the use of open standards. WIPO could certainly play a vanguard role by continuing coordinating initiatives and maybe at least partially host or list several of these systems.

Such technical or informational tools identifying content of the public domain shall be coordinated with  existing rights management structures such as collective rights management organizations. The creation of public registries at national levels listing works on which right-holders have willfully waived their rights and/or whose right-holders cannot be found or identified shall help improving legal certainty for users. The ability of right-holders to not fully exercise all of their rights shall be taken into account in the legal framework of the mandates between collecting societies and their members. This shall be part of the common information technology infrastructure that is likely to be proposed by the European Commission in its upcoming framework Directive on collective rights management.

We also recommend to consider other recommendations from the study, recommendations 1.e on orphan works, 2.b to encourage legal deposit and 2.c on the role of libraries because they are complementary to recommendation 1.f to identify content which is in the Public Domain.

Regarding recommendation 1.c to legitimate voluntary relinquishment as a legitimate exercise of copyright, we follow the recommendation of the secretariat to commission a study on relinquishment which will clarify the enforceability of tools such as CC0 dedication to the Public Domain in different jurisdictions. We would like to recall that actually, Public Domain is the rule and copyright is the exception. Moral rights regime shouldn’t be seen as a difficulty to circumvent, on the contrary, dedicating a work to the Public Domain, should be fully considered as a way to exercise one’s moral rights. Dedication to the Public Domain is a more positive expression than voluntary relinquishment of rights, reflecting the value of contributing to a common pool of reusable works.

Finally, we also welcome recommendation 2.a to enhance the availability of Public Domain works notably by cooperating with UNESCO and cultural heritage institutions. A good way to promote this cooperation is indeed to propose guidelines to museums. But a better way to protect the Public Domain would be to reinforce it statutorily.
Such a positive recognition could be achieved by implementing recommendations 3.a, b and c proposing to define legal means to prevent the recapture of exclusivity in works that are in the PD because the PD is at threat and deserves a positive legal definition to be protected from privatization.

We state that that “Digital reproductions of works that are in the Public Domain must also belong to the Public Domain. Use of works in the public domain should not be limited by any means, either legal or technical. Any false or misleading attempt to misappropriate Public Domain material must be declared unlawful. False or misleading attempts to claim exclusivity over Public Domain material must be sanctioned.”

The use of a Public Domain Mark such as the tool developed by CC or a stronger equivalent with metadata carrying the stamp of the affirmer, being a national library, the ministry of culture or these public and private registries we are talking about, would be extremely useful to both identify Public Domain works and prevent their misappropriation by adding another layer of rights.

We would like to clarify that we consider that Public Domain is related to copyright, and not to Traditional Knowledge, which is another part of IP, and we don’t understand why the promotion of the Public Domain and the protection of the Traditional Knowledge should be opposed, they are different matters and as such, our definition of the Public Domain does not target Traditional Knowledge,  collective rights of the community could be respected in the same way moral rights act for authors of copyrightable works. Traditional Knowledge should not be in the Public Domain just because it’s not copyrighted.

Finally, we think that “Digitization projects that receive public funding must at the minimum ensure that all digitized content is publicly available online.” Digitization project financed by private funding could also have a legal framework preventing to re-establish exclusivity. We would finally like to recall that not all private efforts are led by a certain wealthy search engine, but can also reflect the public interest. Another type of public-private partnership with experts from Wikipedia has shown extremely good results, for instance at the Chateau de Versailles, the British Museum, the Library of the Chilean National Congress, the Museo de Arte Popular in Mexico City or the Smithsonian Archives. For example, the publication on Wikimedia Commons of images of works from the former Dutch colonies curated by the Tropenmuseum in Amsterdam gave access to their own cultural heritage to Indonesians, because it was not available there. These experiences can be replicated and adapted to local context at extremely low cost, through the opening of collection to voluntary photographers, collaboration with curators to draft notices and metadatas, upload of Public Domain material in databases so they can be reused, or even translation of notices by students through instant messaging tools. Public participation to preservation is a powerful way to provide more visibility to collections in the respect of local communities. But these experiences can be led only if works are available under open access licenses or under Public Domain conditions.

It is our great pleasure to be accredited and to participate to this CDIP session where the Public Domain is at the heart of the agenda. Thank you.”

No consensus could be reached among member states on the necessity to lead further work on the Public Domain. US, EU, Switzerland and Norway are opposed to further examination of Dusollier’s recommendations on public domain, while Algeria, South Africa, Brazil, Chile, Venezuela, Pakistan, Creative Commons, Communia and KEI call for WIPO to continue its work on the recommendations.

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The book is under a CC Attribution license and the PDF can be downloaded here: The Digital Public Domain: Foundations for an Open Culture

Citation reference: Melanie Dulong de Rosnay, Juan Carlos De Martin, (eds.), The Digital Public Domain: Foundations for an Open Culture, Open Book Publishers, Cambridge, UK, 2012, 220 p.

This book brings together essays by academics, librarians, entrepreneurs, activists and policy makers, who were all part of the EU-funded Communia project. Together the authors argue that the Public Domain — that is, the informational works owned by all of us, be that literature, music, the output of scientific research, educational material or public sector information — is fundamental to a healthy society.

The essays range from more theoretical papers on the history of copyright and the Public Domain, to practical examples and case studies of recent projects that have engaged with the principles of Open Access and Creative Commons licensing. The book is essential reading for anyone interested in the current debate about copyright and the Internet. It opens up discussion and offers practical solutions to the difficult question of the regulation of culture at the digital age.

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Journée du domaine public
Jeudi 26 janvier de 18h à 21h
Institut des Sciences de la Communication du CNRS (ISCC)
Maison des Sciences de la Communication et de l’interdisciplinarité (MSCI)
20, rue Berbier du Mets 75013 Paris
Metro Gobelins

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1.c. The voluntary relinquishment of copyright in works and dedication to the public domain should be recognised as a legitimate exercise of authorship and copyright exclusivity, to the extent permitted by national laws (possibly excluding any abandonment of moral rights) and upon the condition of a formally expressed, informed and free consent of the author. Further research could certainly be carried out on that point.

1.f. International endeavours should be devoted to developing technical or informational tools to identify the contents of the public domain, particularly as far as the duration of copyright is concerned. Such tools can be data collections on works, databases of public domain works, or public domain calculators. International cross-operation and cross-referencing of such tools is of particular importance.

2.a. The availability of the public domain should be enhanced, notably through cooperation with cultural heritage institutions and UNESCO (through its work on the preservation of intangible cultural heritage).

Before reaching that consensus, delegations discussed whether they wanted to further discuss or implement the recommendations and which ones they would like to explore. As part of this discussion, Melanie Dulong de Rosnay made the following statement on behalf of the Civil Society Coalition and COMMUNIA:

“I would like to present a statement on behalf of the Civil Society Coalition and COMMUNIA international association on the digital public domain and take the opportunity to thank the secretariat for all the efforts led since years to lead a study on the public domain. As this is the first time I take the floor, I would like to also thank the chair for this opportunity and briefly introduce our work. COMMUNIA has been funded by the European Commission between 2007 and 2011 and recently incorporated as an international organization under Belgian law.

The most emblematic output of COMMUNIA is the Public Domain Manifesto, which was translated in over twenty languages and signed by several thousands individuals and a few hundreds associations worldwide. The author of the study under discussion was a member of the thematic network and we welcome very warmly all of its recommendations. A vibrant, positively defined public domain is of vital importance for the international copyright framework and for the Development Agenda as set up by the Recommendations in particular from Cluster B recommendations 16 and 20.

[Cluster B Norm-setting, flexibilities, public policy and public domain Recommendations 16. Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain & Recommendation 20. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions]

Specifying the boundaries of the Public Domain is of paramount importance for business and cultural sector organisations alike, as:

• (a) an increasing number of businesses is making use of Public Domain material to offer value added services (e.g. applications based on public domain content) and
• (b) cultural sector organisations and memory institutions are holding vast amounts of Public Domain material which they cannot use without a clear understanding of the Public Domain boundaries.

For these reasons, we believe CDIP is the right forum to discuss this study and all of its recommendations.

It is time to make full use role of the informational works owned by all of us, be that literature, music, the output of scientific research, educational material or public sector information. Identifying and preserving works which can legally be reused freely is beneficial for the society as a whole, for cultural expression, for innovation by economic actors based on public data, for access to knowledge and especially education through Open Educational Resources, a movement which is strongly supported by UNESCO, and for development by all countries.”

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