One of the key priorities for COMMUNIA was the issue of transparency of training data. In April, we issued a policy paper calling the EU to enact a reasonable and proportional transparency requirement for developers of generative AI models. We have followed the work up with several blogposts and a podcast, outlining ways to make the requirement work in practice, without placing a disproportionate burden on ML developers.

From our perspective, the introduction of some form of transparency requirement was essential to uphold the legal framework that the EU has for ML training, while ensuring that creators can make an informed choice about whether to reserve their rights or not. Going by leaked versions of the final agreement, it appears that the co-legislators have come to similar conclusions. The deal introduces two specific obligations on providers of general-purpose AI models, which serve that objective: an obligation to implement a copyright compliance policy and an obligation to release a summary of the AI training content.

The copyright compliance obligation

In a leaked version, the obligation to adopt and enforce a copyright compliance policy reads as follows:

[Providers of general-purpose AI models shall] put in place a policy to respect Union copyright law in particular to identify and respect, including through state of the art technologies where applicable, the reservations of rights expressed pursuant to Article 4(3) of Directive (EU) 2019/790

Back in November, we suggested that instead of focussing on getting a summary of the copyrighted content used to train the AI model, the EU lawmaker should focus on the copyright compliance policies followed during the scraping and training stages, mandating developers of generative AI systems to release a list of the rights reservation protocols complied with during the data gathering process. We were therefore pleased to see the introduction of such an obligation, with a specific focus on the opt-outs from the general purpose text and data mining exception.

Interestingly, the leaked version contains a recital on which the co-legislators declare their intent to apply this obligation to “any provider placing a general-purpose AI model on the EU market (…) regardless of the jurisdiction in which the copyright-relevant acts underpinning the training of these foundation models take place”. While one can understand why the EU lawmakers would want to ensure that all AI models released in the EU market respect these EU product requirements, the fact that these are also copyright compliance obligations, which apply previously to the release of the model in the EU market, would raise some legal concerns. It is not clear how the EU lawmakers intend to apply EU copyright law when the scrapping and training takes place outside the EU borders without an appropriate international legal instrument.

The general transparency obligation

The text goes on to require that developers of general-purpose AI models make publicly available a sufficiently detailed summary about the AI training content:

[Providers of general-purpose AI models shall] draw up and make publicly available a sufficiently detailed summary about the content used for training of the general-purpose AI model, according to a template provided by the AI Office

While we have previously criticized the formulation “sufficiently detailed summary” due to the legal uncertainty it could cause, having an independent and accountable entity draw-up a template for the summary (as we defended in here) could alleviate some of the vagueness and potential confusion.

We were also pleased to see that the co-legislators listened to our calls to extend this obligation to all training data. As we have said before, on the one hand introducing a specific requirement only for copyrighted data would add unnecessary legal complexity, since ML developers would first need to know which of their training materials are copyrightable, and on the other hand knowing more about the data that is feeding models that can generate content is essential for a variety of purposes, not all related to copyright.

We should also highlight that the co-legislators appear to have a similar understanding to ours in terms of how compliance with the transparency requirement could be achieved when the AI developers use publicly available datasets. In the leaked version there is a clarifying recital stating that “(t)his summary should be comprehensive in its scope instead of technically detailed, for example by listing the main data collections or sets that went into training the model, such as large private or public databases or data archives, and by providing a narrative explanation about other data sources used.”. When the training dataset is not publicly accessible, we maintain that there should be a way to ensure conditional access to the dataset, namely through a data trust, to confirm legal compliance.

Taking these amendments into account, the compromise found by the co-legislators manages to strike a good balance between what is technically feasible and what is legally necessary.

Merry Christmas!

The post An AI Christmas Miracle appeared first on COMMUNIA Association.

How can transparency work in practice?

As discussed in our Policy Paper #15, transparency is key to ensuring a fair balance between the interests of creators on the one hand and those of commercial AI developers on the other. A transparency obligation would empower creators, allowing them to assess whether the copyrighted materials used as AI training data have been scraped from lawful sources, as well as whether their decision to opt-out from AI training has been respected. At the same time, such an obligation needs to be fit-for-purpose, proportionate and workable for different kinds of AI developers, including smaller players.

While the European Parliament’s text has taken an important step towards improving transparency, it has been criticised for falling short in two key aspects. First, the proposed text focuses exclusively on training data protected under copyright law which arbitrarily limits the scope of the obligation in a way that may not be technically feasible. Second, the Parliament’s text remains very vague, calling only for a “sufficiently detailed summary” of the training data, which could lead to legal uncertainty for all actors involved, given how opaque the copyright ecosystem itself is.

As such, we are encouraged to see the recent work of the Spanish presidency on the topic of transparency, improving upon the Parliament’s proposed text. The presidency recognises that there is a need for targeted provisions that facilitate the enforcement of copyright rules in the context of foundation models and proposes that providers of foundation models should demonstrate that they have taken adequate measures to ensure compliance with the opt-out mechanism under the Copyright Directive. The Spanish presidency has also proposed that providers of foundation models should make information about their policies to manage copyright-related aspects public.

This proposal marks an important step in the right direction by expanding the scope of transparency beyond copyrighted material. Furthermore, requiring providers to share information about their policies to manage copyright-related aspects could provide important clarity as to the methods of opt-out that are being respected, empowering creators to be certain that their choices to protect works from TDM are being respected.

In search of a middle ground

Unfortunately, while the Spanish presidency has addressed one of our key concerns by removing the limitation to copyrighted material, ambiguity remains. Calling for a sufficiently detailed summary about the content of training data leaves a lot of room for interpretation and may lead to significant legal uncertainty going forward. Having said that, strict and rigid transparency requirements which force developers to list every individual entry inside of a training dataset would not be a workable solution either, due to the unfathomable quantity of data used for training. Furthermore, such a level of detail would provide no additional benefits when it comes to assessing compliance with the opt-out mechanism and the lawful access requirement. So what options do we have left?

First and foremost, the reference to “sufficiently detailed summary” must be replaced with a more concrete requirement. Instead of focussing on the content of training data sets, this obligation should focus on the copyright compliance policies followed during the scraping and training stages. Developers of generative AI systems should be required to provide a detailed explanation of their compliance policy including a list of websites and other sources from which the training data has been reproduced and extracted, and a list of the machine-readable rights reservation protocols/techniques that they have complied with during the data gathering process. In addition, the AI Act should allocate the responsibility to further develop transparency requirements to the to-be-established Artificial Intelligence Board (Council) or Artificial Intelligence Office (Parliament). This new agency, which will be set up as part of the AI Act, must serve as an independent and accountable actor, ensuring consistent implementation of the legislation and providing guidance for its application. On the subject of transparency requirements, an independent AI Board/Office would be able to lay down best-practices for AI developers and define the granularity of information that needs to be provided to meet the transparency requirements set out in the Act.

We understand that the deadline to find an agreement on the AI Act ahead of the next parliamentary term is very tight. However, this should not be an excuse for the co-legislators to rush the process by taking shortcuts through ambiguous language purely to find swift compromises, creating significant legal uncertainty in the long run. In order to achieve its goal to protect Europeans from harmful and dangerous applications of AI while still allowing for development and encouraging innovation in the sector, and to potentially serve as model legislation for the rest of the world, the AI Act must be robust and legally sound. Everything else would be a wasted opportunity.

The post The transparency provision in the AI Act: What needs to happen after the 4th trilogue? appeared first on COMMUNIA Association.

Last week’s referral is the newest development in the legal saga that started in 1999, when Kraftwerk sued Setlur‘s producer Moses Pelham for the unauthorized use of the sample, and that has seen Germany’s highest court deal with the matter for the fifth time already. In response to the previous referral, the CJEU had established that the use of the sample was legal under Germany’s pre-2002 copyright rules but that it was infringing under the post-2002 copyright rules (that implemented the 2001 Copyright in the Information Society Directive). This conclusion was largely based on the finding that following the adoption of the 2001 Copyright in the Information Society (InfoSoc) directive, the concept of free use (“Freie Benutzung”) in German copyright law was against EU law.

The new referral arises from the fact that, as part of its 2021 Copyright revision and in order to bring German copyright law into compliance with the EU directives, Germany had removed the free use provision and at the same time introduced a new exception for the purpose of Caricature, Parody and Pastiche (§ 51a UrhG). The Hamburg Court of Appeals, to which the BGH had returned the case for a final determination, has subsequently ruled that after the introduction of the new exception in 2021 the use of the sample was in fact legal again as it constituted a use for the purpose of pastiche.

This decision has since been appealed by Kraftwerk, which is how the case came back to the BGH for another round and in the context of this appeal the BGH has now again asked the CJEU for guidance, this time on the meaning of the the term Pastiche in Article 5(3)(k) of the 2001 InfoSoc Directive from which the German exception is derived. This means that this time around the CJEU’s ruling in the case will have much wider implications than for German copyright law alone. It is very likely to determine the EU legal regime for sampling.

The referral to the BGH contains two separate questions which are described in the court’s press release (the text of the actual decision which contains the questions has still to be released by the BGH). According to the press release (translation ours)…

… the question first arises as to whether the restriction on use for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC is a catch-all provision at least for an artistic treatment of a pre-existing work or other subject matter, including sampling, and whether restrictive criteria such as the requirement of humour, imitation of style or homage apply to the concept of pastiche.

The idea that uses for the purpose of pastiche serve as a sort of exception of last resort to safeguard artistic freedom is a welcome one, as it would protect freedom to create at the EU level, as we recommend in our Policy Recommendation #7. Considering that the pastiche exception is already mandatory in the EU, a positive answer to the first part of that question by the CJEU would ensure an harmonized protection of freedom of artistic expression at the EU level.

The CJEU has been suggesting for a while now that the principles enshrined in the EU Charter of Fundamental Rights are already fully internalized by EU copyright law, namely through the existing list of EU exceptions. As we have noted in our Policy Paper #14 on fundamental rights as a limit to copyright during emergencies, that is not necessarily the case, as the existing exceptions do not appear to have exhausted all the fundamental rights considerations that are imposed by the Charter, and on the other hand not all of those balancing mechanisms have yet found full expression in the national laws of the EU Member States.

With this referral, however, the court will have the opportunity to analyze whether the EU copyright law is sufficiently taking into account artistic freedom considerations. In our view, an interpretation of the pastiche exception in light of that fundamental freedom should lead the Court to provide a broad scope that covers all forms of artistic treatment protected by the Charter.

In the press release the BGH expresses a very similar concern noting the inherent conflict between the rigid EU copyright system and the freedom of (artistic) expression:

The pastiche exception could be understood as a general exception for artistic freedom, which is necessary because the necessary scope of artistic freedom cannot be safeguarded in all cases by the immanent limitation of the scope of protection of exploitation rights to uses of works and performances in a recognisable form and the other exceptions such as, in particular, parody, caricature and quotation.

This understanding of the Pastiche exception would also align with the intent of the German legislator when introducing it in 2021. In his 2022 study on the Pastice Exception conducted for the Gesellschaft für Freiheitsrechte, Till Kreutzer notes that

The German legislator has deliberately phrased the pastiche term in an open manner. It is clearly stated in the legislative materials that sec. 51a UrhG is intended to have a broad and dynamic scope of application. The pastiche exception serves to legitimize common cultural and communication practices on the internet, especially user-generated content and communication in social networks. It is supposed to be applied to remixes, memes, GIFs, mashups, fan art, fan fiction and sampling, among others.

In the context of this study Kreutzer proposes the following “copyright-specific definition” of pastiche and concludes that the concept covers the practice of sampling:

A pastiche is a distinct cultural and/or communicative artifact that borrows from and recognizably adopts the individual creative elements of published third-party works.

It will be interesting to see how the CJEU will approach the same task. In this context the second question formulated by the BGH is slightly more troubling. Here the BGH wants to know …

… whether the use “for the purpose” of a pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC requires a finding of an intention on the part of the user to use an object of copyright protection for the purpose of a pastiche or whether the recognisability of its character as a pastiche is sufficient for someone who is aware of the copyright object referred to and who has the intellectual understanding required to perceive the pastiche.

Taking into account the facts of the Metall auf Metall case this question does not make much sense. In 1997, when Nur Mir was recorded, the concept of pastiche did not exist in German copyright law (and neither did the InfoSoc directive which introduced the concept at the EU level). This makes it pretty much impossible for the record producers to have had the intention to use the snippet from Metall of Metall for the purpose of pastiche — a purpose that according the the BGH itself still need to be defined by the CJEU.

For the reasons of legal certainty alone the CJEU should reject the intention requirement and base any definition on the characteristics of the use alone, as suggested in the above quoted definition developed by Kreutzer.

In any case the new BGH referral is a very welcome development in the Metall auf Metall saga. It provides the CJEU with the much needed opportunity to clarify this important concept that played a major role in the recent discussions about Article 17 CDSM Directive. In order to secure a majority for the directive, the EU legislator made the pastiche exception mandatory in an effort to safeguard transformative uses of copyrighted works on user generated content platforms.

It would only be fitting that the final legacy of Kraftwerk‘s narrow-minded attempt to weaponize copyright to limit the creative expression of a subsequent generation of artists would almost three decades later result in a broad conceptualisation of pastiche as safeguarding artistic expression across the EU.

The post Do 90s rappers dream of electric pastiche? appeared first on COMMUNIA Association.

One of the key issues for the discussions will most likely be how to deal with the rather recent phenomenon of generative AI systems (also referred to as foundational models) which are capable of producing various content ranging from complex text to images, sound computer code and much more with very limited human input.

The rise of generative AI

Within less than a year, generative AI technology went from having a select few, rather niche applications to becoming a global phenomenon. Perhaps no application represents this development like ChatGPT. Originally released in November 2022, ChatGPT broke all records by reaching one million users within just five days of its release with the closest competitors for this title, namely Instagram, Spotify, Dropbox and Facebook, taking several months to reach the same stage. Fast forward to today, approximately half a year later, and ChatGPT reportedly counts more than 100 million users.

One of the reasons for this “boom” of generative AI systems is that they are more than just a novelty. Some systems have established themselves as considerable competitors for human creators for certain types of creative expressions, being able to write background music or produce stock images that would take humans many more hours to create. In fact, the quality of the output of some systems is already so high while the cost of production is so low that they pose an existential risk to specific categories of creators, as well as the industries behind them.

But how do generative AI systems achieve this and what is the secret behind their ability to produce works that can comfortably compete with works of human creativity? Providing an answer to this question, even at surface level, is extremely difficult since AI systems are notoriously opaque, making it nearly impossible to fully understand their inner workings. Furthermore, developers of these systems have an obvious interest in keeping the code of their algorithm as well as the training data used secret. This being said, one thing is for certain: generative AI systems need data, and lots of it.

The pursuit of data

Creating an AI system is incredibly data intensive. Data is needed to train and test the algorithm throughout its entire lifecycle. Going back to the example of ChatGPT, the system was trained on numerous datasets throughout its iterations containing hundreds of gigabytes of data equating to hundreds of billions of words.

With so much data needed for training alone, this opens up the question how developers get their hands on this amount of information. As is fairly obvious by the sheer numbers, training data for AI systems is usually not collected manually. Instead, developers often rely on two sources for their data: curated databases which contain vast amounts of data and so-called web crawlers which “harvest” the near boundless information and data resources available on the open internet.

The copyright conundrum

Some of the data available in online databases or collected by web scraping tools will inevitably be copyrighted material which raises some questions with regards to the application of copyright in the context of training AI systems. Communia has extensively discussed the interaction between copyright and text and data mining (TDM) in our policy paper #15 but just as a short refresher about the clear framework established in the 2019 Copyright Directive:

Under Article 3, research organizations and cultural heritage institutions may scrape anything that they have legal access to, including content that is freely available online for the purposes of scientific research. Under Article 4, this right is extended to anyone for any purposes but rights holders may reserve their rights and opt out of text and data mining, most often through machine-readable means.

While this framework, in principle, provides appropriate and sufficient legal clarity on the use of copyrighted materials in AI training, the execution still suffers from the previously mentioned opacity of AI systems and the secrecy around training data as there is no real way for a rightsholder to check whether their attempt to opt out of commercial TDM has actually worked. In addition, there’s still a lot of uncertainty about the best technical way to effectively opt out.

Bringing light into the dark

Going back to the EU’s AI Act reveals that the European Parliament recognises this issue as well. The Parliament’s position foresees that providers of generative AI models should document and share a “sufficiently detailed” summary of the use of training data protected under copyright law (Article 28b). This is an encouraging sign and a step in the right direction. The proof is in the pudding, however. More clarity is needed with regards to what “sufficiently detailed” means and how this provision would look in practice.

Policy makers should not forget that the copyright ecosystem itself suffers from a lack of transparency. This means that AI developers will not be able – and therefore should not be required – to detail the author, the owner or even the title of the copyrighted materials that they have used as training data in their AI systems. This information simply does not exist out there for the vast majority of protected works and, unless right holders and those who represent them start releasing adequate information and attaching it to their works, it is impossible for AI developers to provide such detailed information.

AI developers also should not be expected to know which of their training materials are copyrightable. Introducing a specific requirement for this category of data adds legal complexity that is not needed nor advisable. For that and other reasons, we recommend in our policy paper that AI developers be required to be transparent about all of their training data, and not only about the data that is subject to copyright.

The fact that AI developers know so little about each of the materials that is being used to train their models should not, however, be a reason to abandon the transparency requirement.

In our view, those that are using publicly available datasets will probably comply with the transparency requirement simply by referring to the dataset, even if the dataset is lacking detailed information on each work. Those that are willing to submit training data with a data thrust that would ensure the accessibility of the repository for purposes of assessing compliance with the law would probably also ensure a reasonable level of transparency.

The main problem is with those that are not disclosing any information about their training data, such as OpenAI. These need to be forced to make some sort of public documentation and disclosure and at least need to be able to show that they have not used copyrighted works that have an opt-out attached to it. And that begs for the question: how can creators and other right holders effectively reserve their training rights and opt-out of the commercial TDM exception?

Operationalizing the opt-out mechanism

In our recommendations for the national implementation of the TDM exceptions we suggested that the proper technical way to facilitate web mining was by the use of a protocol like robot.txt which creates a binary “mine”/“don’t mine” rule. However, this technical protocol has some significant limitations when it comes to its application in the context of data mining for AI training data.

Therefore, one of the recommendations in our policy paper is for the Commission to lead these technical discussions and provide guidance on how the opt-out is supposed to work in practice to end some of the uncertainty that exists among creators and other rights holders.

In order to encourage a fair and balanced approach to both the opt-out and the transparency issues, the Commission could convene a stakeholder dialogue and include all affected parties, namely AI developers, creators and rights holders as well as representatives of civil society and academia. The outcome of this dialogue should be a way to operationalise the opt-out system itself and the transparency requirements that will uphold such a system without placing a disproportionate burden on AI developers.

Getting this right would provide a middle ground that allows creators and other rights holders to protect their commercial AI training rights over their works while encouraging innovation and the development of generative AI models in the EU.

The post The AI Act and the quest for transparency appeared first on COMMUNIA Association.

At the 43rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which took place in March, we witnessed a major shift in the EU’s position on international lawmaking in the area of exceptions and limitations to copyright (L&Es). The discussions also brought to light the rationale of the demandeurs of a Broadcast Treaty, deepening the civil society’s concerns about the impact of a new copyright-like right on the public domain and public interest activities.

Exceptions and limitations: a departure from the EU’s stance on text-based negotiations

The last time the most important forum at the global level for copyright rulemaking engaged in text-based negotiations on L&Es was a decade ago, in the lead-up to the adoption in 2013 of the Marrakesh Treaty. After the treaty was adopted, many developed countries claimed that the international instrument for persons with print disabilities was meant to be an exception, and opposed the drafting of any other instrument on copyright exceptions, be it binding or non-binding (such as a joint recommendation or a model law).

This stance was repeated ad nauseam over the years, particularly by the EU. So much so that not even the COVID-19 pandemic, which demonstrated clearly how important it is for schools and cultural heritage institutions to be able to operate remotely and across borders, seemed to remove them from those crystallised positions. 

This status quo remained until the last SCCR, when developed countries finally showed a change of heart. While still opposing the drafting of a legally binding instrument, the EU stated that it was willing to discuss non-binding instruments:

In this context, as consistently expressed in the past, we would like to remind, however, that the EU and its member states cannot support work towards legally binding instruments at the international level or any preparations in this regard. However, we stand ready to continue to engage constructively under this Agenda Item to reflect further on the other possible non-binding instruments and ways how WIPO can best help to provide guidance to WIPO member states to address the problems faced by institutions and people with disabilities including through the introduction of meaningful exceptions and limitations in their respective national laws. (…)

However, as the week proceeded, it became apparent that France wanted to soften the EU statement delivered by the Commission. The only EU country to ask for the floor, France made the following intervention, repeating what had been the EU’s position until that point:

In this regard, France has reservations regarding the fact that the conversation on L&Es could touch upon normative instruments. The continuation of discussions in L&Es should be founded on the exchange of best practices at the national level (…).

Frustrated with these continued attempts to divert the conversation away from concrete language to address the problems and solutions faced by educators, researchers, and cultural heritage institutions, in our statement we threatened not to return to the Committee:

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference. Do know that we question if we should come back.

We further shared the story of Jonas, a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, who we interviewed for our publication “Nobody puts research in a cage”. We explained his struggles with accessing the data sources he uses in his research remotely and sharing his research results with colleagues for purposes of verification and validation of his research. And we read his words out loud, hoping they could make a difference in the discussions:

Perhaps they did. At the end of the last day of SCCR/43, the Committee finally agreed to approve the revised African Group proposal for a work program on L&Es, which includes drafting work towards “objectives and principles and options for implementation at national level”. The Chair was tasked with advancing information sharing and consensus building on L&Es between SCCR meetings and given the option to create working groups of member states supported by experts to produce outcomes for consideration by the Committee.

Broadcast Treaty: increasingly difficult to grasp!

The discussions on the protection of broadcasting organisations against unauthorised retransmission and related uses were centred around the Chair’s Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, which continues to raise substantial issues of concern. 

While there seems to be a common understanding that any potential treaty should be narrowly focused on signal piracy and not extend to post-fixation activities, there are still many important issues to be agreed upon, including fixation rights, a perpetual term of protection, and limitations and exceptions.

The revised draft text contains important changes to the L&Es provision. Yet, none of the exceptions are mandatory, not even those that are already mandatory for copyrighted works (such as quotation, news of the day, and providing access for the visually impaired). Furthermore, unlike the Regional Comprehensive Economic Partnership Agreement and the Trans-Pacific Partnership Agreement, the text does not even mandate the contracting parties to achieve a fair balance between the rights and interests of authors and rightsholders, and those of  users. 

Equally concerning is the idea to give contracting parties the option to protect signals by means of a fixation right. This would grant broadcasters a new lawyer of exclusive rights over the programme-carrying signal on top of the rights they already have on the signal content, effectively extending the scope of protection beyond the mere signal. This is particularly concerning when the signal content is already in the public domain, as it would allow broadcasters to re-appropriate public domain broadcasts. Broadcasters are sitting on huge collections of public domain content and are the only ones that have complete, high-quality copies of those materials. Prohibiting the fixation of signal would mean preventing access to, and re-use of, the public domain material itself. 

When questioned why public domain materials were not being excluded from this new layer of rights, the facilitators made it clear that this was intentional. They claimed that broadcasters needed to be incentivised to promote public domain works to the public. We found this reasoning nonsensical and asked why corporations would need copyright-like incentives to use materials that are free for anyone to use and for which they would not need to pay any copyright licence fees. However, none of the facilitators were able to provide a response.

The next SCCR will take place in Geneva on November 6-8. This time, the Committee will meet for three days instead of five, and attendees will be asked to forego making oral opening statements and general declarations, in order to allow the Committee to focus on substantive discussions. Certainly something to look forward to!

The post Finally, something to look forward to at WIPO appeared first on COMMUNIA Association.

We made the following statement regarding limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

Dear Delegates,

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference.

Do know that we question if we should come back. The only reason why we persist is because we cannot stand talking with those researchers and teachers about the challenges they face when researching newspapers or showing Youtube videos in Zoom classes, and turn our backs on them.

So today, I’ll use the 1 minute that I have to let you hear from one of them, in the hope that this will be it, that these will be the words that will also make you stand for them.

Jonas is a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, and we interviewed him for our publication “Nobody puts research in a cage”.

Jonas is struggling because he cannot have remote access to the data sources he uses in his research and also because he cannot share his research results and underlying resources with colleagues for purposes of verification and validation of his research. In his words:

We are studying book reviews in Swedish newspapers from 1906, 1956 and 2006. We want to train the computers to understand different expressions in their context. We also have a dream that feels more and more likely, insane at first but now maybe real? That is, to train a text corpus to identify what is a book review!
To access material from 1956, we have to go to the National Library Lab in Stockholm. It is a small glass cage with three data terminals. You sit in the lab, annotate. Access to it costs SEK 70,000 the first year, and 35,000 in the following years. You are not allowed to take data in or out, all labs must be done in the cage.
The transparency is non-existent. If someone wants to verify the results, they also have to buy the license for a lot of money. An incredible anxiety!

End of quote.

Thank you.

The post SCCR/43: COMMUNIA Statement on Limitations and Exceptions appeared first on COMMUNIA Association.

We made the following statement regarding the protection of broadcasting organisations (Agenda Item 5):

COMMUNIA works to defend the public domain and in our opinion the proposed broadcast treaty is a threat to the public domain and usage rights.

The current version of the draft treaty allows countries to protect broadcasters with exclusive rights without sufficient balance or consideration for the societal needs related with access to knowledge and information.

Broadcast signals carry content that plays an essential informational, cultural and educational role in our society. It is therefore crucial to ensure that the rights-based model currently under discussion does not create an additional obstacle to education, research and the activities of cultural heritage institutions.

Let us give you an example. We recently interviewed EU researchers to better understand the needs and challenges faced by them. A Swedish researcher told us that they use broadcasts as sources of scientific research. They research public discourse and they analyse mainly radio broadcasts and daily newspapers. With the current legal framework they already face considerable copyright-related obstacles. In their words “We really get into copyright issues and there it has been very messy.”

So why make things harder for them? This treaty needs to get rid of fixation rights. It needs to mandate that the parties achieve a fair balance by means of exceptions, and it needs to have the same mandatory exceptions that we have in Berne and in the Marrakesh Treaty. And this is just a start. We count on you to make it right.

The post SCCR/43: COMMUNIA Statement on the Protection of Broadcasting Organisations appeared first on COMMUNIA Association.

The answer lies not in copyright law but in the Italian cultural heritage code, Article 108 of Legislative Decree no. 42 of 2004 to be precise. This article of administrative law imposes a concession fee for the commercial reproduction of publicly owned works to be paid in advance to the institution delivering the work. Notably, the approach is also different from the concept of the Paying Public Domain or domaine public payant that exists in a number of African and Latin American countries and which taxes all uses of Public Domain works. Under the Italian cultural heritage code, fees need only to be paid for works that are held by Italian cultural heritage institutions and directly to that institution, not to the Italian state.

Cultural heritage laws should promote the public interest

We are aware of similar laws existing in Greece (Article 46 of Law no. 3028/2002 on the Protection of Antiques and Cultural Heritage in General), France (Article L621-42 of Code du Patrimoine) and Portugal (Administrative Order no. 10946/2014 on the Use of Images of Museums, Monuments and other Properties allocated to the Directorate-General for Cultural Heritage). Importantly, administrative law in general and this type of cultural heritage code in particular operate on a different logic than intellectual property law, as Simone Ariprandi explains in greater detail. Administrative law as an area of public law governs relations between legal persons and the state and not relations between private individuals. The intention is thus to promote the public interest and not to protect the private interests of authors.

The problem is that this law does quite the opposite of promoting the public interest by de facto curtailing the Public Domain. The Public Domain is an essential component not just of our copyright system, but essential to our social and economic welfare, as expressed in our Public Domain Manifesto:

[The Public Domain] is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The Public Domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction — close to zero — and that all members of society can build upon it.

Imposing a fee for the use of certain Public Domain works restricts access to these public goods and thus stifles creativity. COMMUNIA is built on the conviction that the Public Domain must be upheld and guarded against attempts to enclose it from both public and private actors if we want to ensure the widest possible access to culture and knowledge and creativity to thrive.

Users should be trusted

So why do some EU countries exploit the physical ownership of works for which copyright has long expired? There are two main reasons, which from the perspective of national lawmakers might justify this measure. The first one is financial. The second one could be a paternalistic argument to retain some control over the artifacts held by national cultural heritage institutions and shield them against alleged misuse.

The financial argument does not stand up to a simple cost-benefit analysis. Fees collected through this mechanism do more harm than good, and any revenue generated is far outweighed by the heavy cost for members of society who are deprived of their fundamental right to access and enjoy culture, knowledge and information.

The notion that artists like Botticelli et al. and their work require protection from the general public is also easily dispelled. While we understand that masterpieces like the Birth of Venus are closely associated with the Uffizi and representative of Italian culture in general, this does not justify a financial barrier to the reuse of Public Domain works. There is also little evidence for the inappropriate use of Public Domain works, as stated in CC’s “What Are the Barriers to Open Culture?” report. Thus, we do not see a basis for retaining control by pricing out unwanted uses to ensure that no harm is caused to the reputation of the work, the author or the institution itself. We believe to the contrary that in an open society, the public must be trusted and enabled to make uses that are in line with fundamental freedoms, including freedom of expression.

It is unlikely that the Uffizi are worried that the commercial exploitation of the Birth of Venus per se would create a reputational risk, since this contradicts the institution’s own practice of exploiting its works of art for commercial gain. It is of course a question of personal taste whether one likes Gaultier’s printed multicolor tulle lounge pants or not. Yet a quick look at the Uffizi webshop reveals that the institution is by no means shy to market Botticelli’s masterpiece in similar ways. The visitor will find a shopping bag, a spectacle case (including a spectacle cloth), an oven glove and similar artifacts all incorporating Boticelli’s painting in some way or another. To be clear, the Uffizi should use works from their collection as they see fit to generate income. But to claim that museum professionals know better how to place the Birth on an oven glove is dubious at best.

Botticelli created the Birth of Venus during the 1480s — more than 500 years ago — and yet it remains so iconic not in spite of Jean Paul Gaultier, the Simpsons and other commercial creators referencing or incorporating the work but because of them. The transformative use of the Birth — even in a commercial context — doesn’t diminish the work, but keeps it relevant and ensures that it lives on as part of our cultural memory.

In sum, Italy’s cultural heritage code, although promoting important principles such as preservation and protection of heritage, poses a threat to the public domain, to the detriment of creators, reusers and society as a whole. While the best way forward is to remove this provision from the Italian cultural heritage code, there is in the meantime room for agency for cultural heritage institutions. Cultural heritage institutions can better fulfill their mission and still operate within the scope of the law by choosing not to request the payment of a fee by reusers of public domain heritage. The Uffizi should lead by example and withdraw its claim, and celebrate how cultural heritage is continuously being reinvented in new and unexpected ways through free creative expression.

The post The Uffizi vs. Jean Paul Gaultier: A Public Domain Perspective appeared first on COMMUNIA Association.

We are attending the 42nd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in Geneva. Today, the Committee is discussing the issue of limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 8) and the following statement was delivered on behalf of COMMUNIA:

Dear Delegates,

It will not be easy to convince your families, friends, neighbours that policymakers from across the world should spend time discussing how to improve copyright exceptions.

There is absolutely no doubt that the restrictions copyright laws pose on access to knowledge and information condition the right to education and the right to research, and that educational and research exceptions would benefit society as a whole. That is what will determine whether teachers can show a short news report during live-streamed online classes, whether researchers can conduct medical research or track desinformation online.

Yet, the fact that copyright laws are hard to understand will be an obstacle to reforming copyright laws at national level. Therefore, when Global North delegations claim that each one of you can go back to your countries and introduce exceptions that work for education and research in the 21st Century, we say: that is easier said than done.

Indeed, if you look at the national exceptions for education and research in the European Union, before the recent EU-wide copyright reform, you will see that not even the EU Member States were investing time in solving these issues if they had not been forced to do so through a binding regional instrument.

It should also be said that the fact that copyright exceptions are now outdated only in the Global South does not make this issue less problematic for the Global North. Institutions in Europe and North America engage in cross-border education and research activities outside of their regions on a regular basis. Think about EU distance education programmes attended by students located in Latin America or international research programmes involving North American and Asian researchers. It is clear that the lack of the same minimum set of rights across the world prevents these cross-border activities from taking place, affecting both the North and the South.

We understand that this Committee is not ready to make a decision on how to positively affect copyright frameworks to actually protect the right to education and research. At the same time, this Committee has been discussing this agenda item for nearly 15 years.

We believe that it is fair to say that the work undertaken by the Committee so far has not had much impact on the copyright provisions that frame how educators and researchers can have access to knowledge and information. The African Group proposal could change the course of action to make the work of the Committee more useful. We, thus, urge this Committee to use its best efforts to reach an agreement on how to move forward towards more positive and impactful outcomes.

Thank you.

The post SCCR/42: COMMUNIA statement on limitations and exceptions for education and research appeared first on COMMUNIA Association.

Today, the Committee is discussing the protection of broadcasting organizations and the following statement was delivered on behalf of COMMUNIA on this agenda item (Agenda Item 6):

Much of the content that broadcasters transmit plays an essential informational, cultural and educational role in our society. Radio and television programs and archives are fundamental to have access to knowledge and information. They are sources of scientific research and are also used as educational materials. We recall that radio and TV-based remote learning have re-emerged in the past years, in response to the pandemic.

Therefore it is essential that educators and researchers have broad and immediate access to broadcast content.

Although the scope of the draft treaty has been reduced, the need for robust limitations and exceptions remains, when legal protection of broadcasters is shaped in the form of exclusive rights.

The problem is that the draft text only says that countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.

This is more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses. This may lead to the surprising result that broadcasts are subjected to fewer exceptions than the underlying copyrighted works.

A treaty that creates an additional layer of rights needs to also mandate the corresponding exceptions. Otherwise it ignores the societal and cultural needs related with access and reuse of broadcasts, failing the society as a whole.

The post SCCR/42: COMMUNIA statement on the protection of broadcasting organizations appeared first on COMMUNIA Association.