We have witnessed a proliferation of (so-called) generative artificial intelligence (AI) models since OpenAI made DALL-E 2 available to the public in July 2022. This has gone alongside a renewed interest in questions about the relationship between machine learning (ML) and copyright law — as evidenced by a surge in publications on the topic both in scientific journals and general-audience media, as well as a number of lawsuits.

In this policy paper, we are looking at the input side of the equation within the EU copyright framework.¹ We discuss the considerations of the use of copyright-protected works and other protected subject matter as training data for generative AI models, and provide two recommendations for lawmakers. Here, we leave aside questions relating to the output of AI models (e.g. whether the output of generative AI models is copyrightable and in how far such output can be infringing exclusive rights), which we will address in another, yet to be published paper.

The surge of generative AI raises concerns for creators and their livelihood. It also prompts broader questions about the implications of potentially inauthentic and untrustworthy AI-generated output for social cohesion as well as about the extraction and concentration of resources by only a few tech companies. We are mindful of these challenges, but copyright is not designed to address all of them in a way that does justice to the underlying grievances.

Training generative machine learning systems

This paper is based on the assumption that in order to train generative ML models their developers require access to large amounts of materials, including images and text, many of which – but far from all – are protected by copyright. Currently, the most prominent examples of such models are image generators (such as Dalll-E, Midjourney and Stable Diffusion) and large language models (such as BLOOM, GPT and LLaMA) that are able to generate text and sometimes software code. But it is only a question of time until the same questions will arise for music or video generators and the use of copyrighted musical or audiovisual materials.

Access to large amounts of training data enables developers of ML models to train their models so that they can generate output. Based on our understanding of the technology, we assume that copies of the works that have been used for training are in no way stored as part of the model weights² or the model itself.

What we observe at a high level of abstraction is a situation where ML models are trained on very large numbers of works from a vast number of rightholders. Usually, the generated output will be based on the model as derived from the totality of the training data.

Traditionally, the copyright system has been badly equipped to deal with instances of large numbers of underlying rightholders. Rights clearance for mass digitization projects, for instance, is greatly encumbered by the amount of rightholders and difficulties in obtaining permission from those who either never have or are no longer actively managing their rights. Training ML models from the open internet involves even greater numbers of rightholders.

All of this combined with the novelty and rapid development of ML technologies has resulted in significant legal uncertainty. Unsurprisingly, the use of copyrighted works as part of AI training is already subject to legal dispute in the US and UK.

Most of the discussion about copyright and ML training has been conducted within the parameters provided by the US framework. The question dominating this discussion has been: Do uses of copyrighted works for the purpose of training (generative) ML constitute fair use?³

The EU copyright framework does not provide for a fair use defence; users can rely on the system of exceptions and limitations to copyright when they use a work without express permission of rightholders. Therefore the situation is different here.

We argue that questions relating to the input side of ML are sufficiently addressed by the existing EU copyright framework. Since the adoption of the 2019 Copyright in the Digital Single Market Directive (CDSM Directive), the EU copyright framework contains a set of harmonised exceptions that are applicable to ML as described above. These are the exceptions for text and data mining (TDM) introduced in Articles 3 and 4 of the Directive.

Machine learning and text and data mining

Even though not directly referenced in the Directive, the fight over TDM exceptions during the legislative battle over the CDSM Directive has always been about the ML revolution that was already on the horizon at that time.⁴

The CDSM Directive defines TDM as “any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations.” This definition clearly covers current approaches to ML that rely heavily on correlations between observed characteristics of training data. The use of copyrighted works as part of the training data is exactly the type of use that was foreseen when the TDM exception was drafted and this has recently been confirmed by the European Commission in response to a parliamentary question.

Article 3⁵ of the Directive allows text and data mining for the purposes of scientific research by research organisations and cultural heritage institutions, as long as they have lawful access to the works to be mined, including content that is freely available online.

The Article 4 exception – which is the result of extensive advocacy by researchers, research organisations, open access advocates and technology companies to broaden the scope of the TDM exception in Article 3 – allows anyone to use lawfully accessible works, as defined above, for text and data mining unless such use has been “expressly reserved by their rightholders in an appropriate manner, such as machine-readable means.”

In sum, these two articles provide a clear legal framework for the use of copyrighted works as input data for ML training in the EU. Researchers at academic research institutions and cultural heritage institutions are free to use all lawfully accessible works (e.g. the entire public Internet) to train ML applications. Everyone else – including commercial ML developers – can only use works that are lawfully accessible and for which their rightholders have not explicitly reserved use for TDM purposes.

Opt-out and the limits of the copyright framework

The EU’s approach constitutes a forward-looking framework for dealing with the issues raised by the mass scale use of copyrighted works for ML training. Importantly, it ensures a fair balance between the interests of rightholders on the one side and researchers and ML developers on the other.

The exception in Article 3 provides much needed clarity for academic researchers and ensures that they have access to all copyrighted works for TDM/ML training purposes. The more limited exception in Article 4 addresses the interests of creators and other rightholders who want to control the use of their works and those who don’t.

Creators and rightholders who want to control the use of their works can opt out from TDM/ML either to prevent their works from being used for this purpose or to establish a negotiation position for licensing such uses of their works either collectively or individually. Here, the European Commission should also play an active role in defining technical standards for reserving the right in machine-readable form in order to increase certainty for all parties involved.

What is equally important is that this differentiation also recognizes the fact that for a significant amount of works the rights are not actively managed by their rightholders. This means that under a copyright-by-default regime (i.e works can only be used on the basis of explicit opt-in) these works could not be used for ML learning since obtaining permission from large numbers of rightholders not actively managing their rights would be impossible. Future EU rulemaking should thus maintain the opt-out approach for ML training and ensure that permissionless use remains the default.

Recommendation 1: The EU must maintain the exceptions for text and data mining established in Articles 3 and 4 of the CDSM Directive. The existing opt-out model for commercial uses should be preserved as it establishes a balance between the interests of ML developers on the one hand and creators on the other.

Transparency

However, we should not stop there. For this approach to work in practice it is essential that ML development becomes more transparent. The EU legislator should enact provisions that require providers of generative ML models to publicly disclose the use of all materials used as training data, including copyright-protected works, in a reasonable and proportionate manner so as not to create an undue burden. Creators should be empowered to know which of their works have been used for training and how.

Such a requirement would improve the transparency of ML development and deployment. As such, this requirement would ensure that adherence to EU legal framework governing the use of copyrighted works for ML training can be verified by anyone, particularly those rightholders who seek to control the use of their works.

Finally, a general transparency requirement contributes to the development of trustworthy and responsible AI and is in the public interest.

Recommendation 2: The EU should enact a robust general transparency requirement for developers of generative AI models. Creators need to be able to understand whether their works are being used as training data and how, so that they can make an informed choice about whether to reserve the right for TDM or not.

The two recommendations developed in this paper are closely tied to our Policy Recommendations #2 (Full copyright protection should only be granted to works that have been registered by their authors) and #16 (Creators should have the right to know their audience).

From a copyright perspective, the opt-out mechanism increases legal certainty for all parties involved. On the one hand, it allows creators and rightholders to indicate how their works are to be used in the context of ML training. On the other hand, it provides ML developers with the ability to ensure that their use of training data does not infringe copyright where applicable. Finally, by excluding scientific research from the scope of opt-outs, the system provides an important contribution to academic freedom and to ensuring that ML-related research can flourish in the EU.

We also maintain that transparency is paramount to a copyright and AI system that works for everyone. Creators should be able to track copyright-relevant uses of their works in order to be able to make informed decisions and improve their negotiating position vis-à-vis other actors in the value chain, and the public needs transparency to ensure that as AI continues to progress its benefits flow to society as a whole.

Endnotes

1. This paper is without prejudice to the position of COMMUNIA or individual COMMUNIA members regarding this discussion in other jurisdictions.
2. Model weights are an integral part of the model itself. The model consists of a structure or architecture that defines the way it processes the input data, and the weights are the parameters that are learned during the training process to optimise the model’s performance.
3. For a recent overview, see: Henderson, P. et al. (2023) ‘Foundation Models and Fair Use’ [Unpublished]. Available at: https://arxiv.org/abs/2303.15715.
4. The European Parliament’s summary published after the adoption of the Directive makes this explicit by noting that “the co-legislators agreed to enshrine in EU law another mandatory exception for general text and data mining (Article 4) in order to contribute to the development of data analytics and artificial intelligence.”
5. This statement by 24 stakeholders stresses “the foundational role that TDM plays in Artificial Intelligence (AI).”

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COMMUNIA Policy Paper on fundamental rights as a limit to copyright during emergencies

Exceptions and limitations to copyright should support education, research and other public interest activities that need to take place remotely during emergencies that fundamentally disrupt the normal organization of society. National copyright laws that do not have flexibility to temporarily adjust to new modes of living imposed by emergencies such as the COVID-19 pandemic cannot be deemed to have properly internalized the fundamental rights enshrined in the EU Charter of Fundamental Rights. In such cases, the rights to freedom of information, freedom of science and education should be relied upon to allow derogations from the exclusive rights. The derogation should have the extent necessary to safeguard activities that either mimic or translate those conducted on the premises of educational institutions, research organizations and cultural heritage institutions, during the periods when the physical premises of those institutions are forced into closure.

Interpreting flexible exceptions in the light of fundamental rights

The EU Directives provide for a number of broad and flexible exceptions and limitations to copyright that, if interpreted in the light of their fundamental rights justifications, would permit the transposition of education, research and other public interest activities from public locations to private homes during government-imposed lockdowns.

The most relevant EU exceptions in this context are:

1. the “optional” educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, which are only limited by their purpose, leaving open the beneficiaries, the types of uses, the location, the technological context or the categories of works or other subject-matter covered by the exceptions;
2. the mandatory educational exception and limitation provided for in Article 5 of the Copyright in the Digital Single Market Directive (CDSM Directive), which was designed to deal with remote teaching; and
3. the “optional” public lending exception provided for in Article 6(1) of the Rental and Lending Rights Directive, which covers e-lending.

These exceptions are justified by the fundamental rights to freedom of information, freedom of science and education, foreseen at the EU level, respectively, in Articles 11/1, 13 and 14/1 of the EU Charter of Fundamental Rights².

According to the Court of Justice of the European Union (CJEU), when interpreting the EU exceptions, courts must strike a balance between copyright and user rights, having regard to all the circumstances of the case and fully respecting the fundamental freedoms enshrined in the Charter³. We argue that, in a lockdown context, that balance would favour the exercise of the fundamental rights to freedom of information, freedom of science and education over the fundamental rights of the author in being able to prevent the use of her work.

Certainly, not every single educational, research or public interest activity carried out without the permission of authors and rightholders would be justified during the COVID-19 pandemic lockdowns. The balancing exercise undertaken by courts, in order to reach an equitable solution for each dispute, requires that the exceptions are interpreted in a way that secures their effectiveness and permits their purpose to be observed⁴, without imposing unjustified harm to the author and rightholder.

We maintain that a balanced interpretation of those exceptions would lead to the conclusion that activities that are equivalent to those conducted on the premises of educational institutions, research organizations and cultural heritage institutions are allowed remotely at least during periods when those institutions are forced into closure. This would permit, for example:

1. teachers to display works and other subject-matter during a streamed or recorded online class accessible only to the school’s students or pupils⁵;
2. librarians and other facilitators to read aloud entire books to children, and display the respective illustrations, during a library’s live streamed story-time session⁶;
3. libraries, archives and other cultural heritage institutions to make available, for the purpose of research or private study, to individual members of the public by secure electronic environments copies of works and other subject-matter which are contained in their collections, on the condition that the access occurs on the basis of the one-copy-one-user model⁷; and
4. online lending by libraries, archives and other cultural heritage organizations of digital copies of entire works or other subject matter, on the condition that the lending occurs on the basis of the one-copy-one-user model.

The activity listed in 4 would fall under the public lending exception, as established in the case-law of the CJEU⁸, whereas the activities listed from 1 to 3 above would fall under the mentioned education and research exceptions and limitations. What we suggest is simply to take full advantage of the flexible wording of the education and research exceptions to allow those activities. We maintain that making use of that breathing space to easily adjust those activities to new and temporary circumstances is not only possible, but it is also required to fully respect the fundamental rights enshrined in the Charter.

Applying fundamental rights as an external limit to copyright, in the absence of flexible exceptions at national level

Applying and interpreting the flexible exceptions that exist in EU law in the light of fundamental rights is the only mechanism needed to safeguard most remote research, education and other public interest activities, during emergencies, in Member States that have such exceptions in place. The problem is that no Member State has yet implemented the mandatory exceptions provided for in the CDSM Directive and not every Member State has transposed the “optional” exceptions provided for in the InfoSoc Directive, in the Database Directive and in the Rental and Lending Rights Directive with the same flexibility that is given in those Directives.

In fact, in the majority of Member States of the EU, education and research exceptions and limitations to copyright have not much elasticity. While the EU provisions tend to be drafted in broad and flexible terms, the national provisions are not always technologically neutral; sometimes they are limited to certain physical spaces (the premises of the libraries or schools); other times they have quantity restrictions predefined in the law; or are only for the benefit of specific users (students enrolled in a school’s program, and no other students, or the teaching staff of the school, and no other teachers). Furthermore, the national provisions do not always cover the acts of use needed to perform remote activities (i.e. reproduction, communication to the public and/or making available to the public).

This means that, in many Member States, the proposed interpretation would not be consistent with the wording of the national provisions. In other words, if we rely exclusively on the exceptions and limitations to copyright that are expressly prescribed by national laws, the educational, research and public interest activities that need to be performed remotely due to a lockdown measure might not be legal in many Member States without permission from the relevant rightholders. We need therefore to apply, in those Member States, legal mechanisms outside of the national copyright system to reach an equitable solution that fully respects the fundamental freedoms enshrined in the EU Charter of Fundamental Rights.

We assert that if, due to the absence or insufficiency of legislative action, the exceptions and limitations existing in a certain EU Member State have no flexibility to cover educational, research and other public interest activities that take place remotely because of lockdown, the national copyright law cannot be deemed to have properly internalized the fundamental rights enshrined in the EU Charter of Fundamental Rights. Therefore, it should be possible to invoke the rights to freedom of information, freedom of science and education as a limit to the exclusive rights of authors and rightholders. We maintain that courts should apply those freedoms directly⁹ when analysing cases concerning education, research and other public interest activities that take place when educational institutions, research organizations and cultural heritage institutions are closed due to an emergency.

We believe that this position is in line with what is argued by various academics¹⁰ and also with the case law of the European Court of Human Rights (ECtHR). Superficially, this position conflicts with the case law of the CJEU, but the next section explains how it can be reconciled with it.

The case law of the ECtHR and of the CJEU

While the ECtHR has opened the door to the possibility of the fundamental rights laid out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) being used to limit the exclusive rights of authors and rightholders in copyright infringement cases¹¹, the CJEU rendered in the summer 2019 three judgments where it rejected the possibility of invoking the fundamental rights laid out in the EU Charter of Fundamental Rights as an external limit to copyright, apart from the existing EU exceptions¹².

According to the CJEU, the principles enshrined in the Charter are internalized by the EU law, namely the InfoSoc Directive, which contains in itself the mechanisms (the exclusive rights and the exceptions and limitations to those rights) that allow the interests of rightholders, on the one hand, and the interests and fundamental rights of users and of the public, on the other, to be balanced¹³. This means that whilst Member States (when implementing the rights and exceptions) and subsequently courts (when applying the national provisions that incorporate those rights and exceptions) must ensure consistency with the Charter, they cannot rely on the fundamental freedoms foreseen in the Charter to allow derogations from the exclusive rights that go beyond the exceptions and limitations provided in the Directive¹⁴.

This interpretation assumes that those balancing mechanisms (namely the exceptions) are contained in the legislation that is in place in Member States. However what is the situation when Member States have not (fully) implemented the exceptions that allow the interests and fundamental rights of users, as well as the public interest, to be balanced with the exclusive rights? What is the situation if the exceptions, as implemented, do not fully adhere to the fundamental rights enshrined in the Charter, as mandated by the CJEU?

According to the CJEU, Member States might simply have no discretion as to whether to implement or not the “optional” exceptions that are aimed to observe fundamental freedoms. In other words, those exceptions might be mandatory for Member States. The court states that these exceptions “may, or even must, be transposed by the Member States”, since those balancing mechanisms “must nevertheless find concrete expression in the national measures transposing that directive and in their application by national authorities” (emphasis added)¹⁵.

This judgment is reassuring, but what are the legal solutions to ensure that the fundamental rights enshrined in the Charter are respected while those balancing mechanisms have not yet found full expression in the national law? As we know, the EU Directives can only have direct vertical effect, which means that a EU citizen cannot invoke the EU exceptions in relation to authors and rightsholders, even if they are mandatory for Member States. Can courts apply fundamental rights directly when the transposition of the exceptions has not achieved the level of protection of fundamental rights provided for in the Charter?

The options available to national courts

It is settled in the CJEU case-law that rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law in the territory of a Member State¹⁶. But the national courts remain free to apply national rules that protect fundamental rights, “provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not compromised”¹⁷.

In our view, the three judgments of 29 July 2019 only negate the possibility of applying national rules that protect fundamental rights insofar as they extend the scope of the exceptions and limitations exhaustively set out in EU law. According to the Court, that would endanger the effectiveness of the harmonisation of copyright and related rights laid out by the InfoSoc Directive.

However, if the only way to ensure the balance of interests foreseen by EU copyright law is through the direct application of national standards of protection of fundamental rights, then national courts should be able to resort to those. The CJEU does not seem to negate the possibility of applying rules outside of copyright when those are precisely the legal mechanisms available to ensure the effectiveness of EU law. National courts would just need to ensure that they do not allow derogations from the exclusive rights that go beyond the scope of permitted uses foreseen by the existing EU exceptions.

Finally, it should be noted that allowing uses that go beyond the EU exceptions, while conflicting with the CJEU case law, would still be permitted by the ECtHR case law. The ECtHR accepts that, in exceptional situations, fundamental rights can function as an external limit to the exclusive rights of authors and rightholders, mandating a case-by-case approach. The fact that the CDSM Directive extends the list of exceptions permitted in the EU reveals that the InfoSoc Directive had not exhausted the fundamental rights considerations and that it is still possible to justify new uses under the EU Charter of Fundamental Rights. In other words, to negate in any circumstance a use that extends the scope of existing exceptions on the basis that the principles of the Charter are already fully internalized by the EU copyright law does not seem justifiable. Over and above that, it is probably incompatible with the EU treaties and the fundamental rights order in the EU, including the ECtHR case law¹⁸.

Conclusion

In conclusion, we defend that:

• The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights.
• In Member States that have education, research and public lending exceptions in place that follow closely the above-mentioned EU prototypes, applying and interpreting those exceptions in the light of the fundamental rights to freedom of information, freedom of science and education that they internalize is the only mechanism needed to safeguard most remote research, education and other public interest activities, during emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns.
• In Member States that do not have education, research and public lending exceptions in place that follow closely the above-mentioned EU prototypes, those activities can only be safeguarded, in the absence of permission from the relevant rightholders, through the direct application of national standards of protection of the fundamental rights to freedom of information, freedom of science and education. In those circumstances, applying fundamental rights as an external limit to the exclusive rights of authors and rightholders does not conflict with the CJEU case-law, provided that the activities allowed do not extend the scope of the above-mentioned exceptions. Resorting to national rules that protect fundamental rights should nevertheless be a patch, not a fix, to ensure the balance of interests foreseen by EU copyright law.
• A balanced interpretation of the fundamental rights to freedom of information, freedom of science and education, on the one hand, and the exclusive rights of authors and rightholders, on the other, would lead to the conclusion that educational, research and other public interest activities that are equivalent to those conducted on the premises of educational institutions, research organizations and cultural heritage institutions are allowed remotely, at least during the periods when the physical premises of those institutions are forced into closure due to emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns.

Recommendations

In order to reassure the community of educators, researchers, librarians and archivists in the EU that they are able to legally perform their activities remotely, if their institutions are forced into closure due to an emergency that fundamentally disrupts the normal organization of society, we recommend the Commission to issue guidance to clarify the following:

• The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights. Further clarify that this interpretation is compatible with the CJEU case-law.
• National rules that protect fundamental rights to freedom of information, freedom of science and education can serve as an autonomous ground to limit copyright and related rights in the Member States that have not fully implemented the above-mentioned exceptions and/or that have not yet implemented the exceptions and limitations provided for in Article 5 of the Copyright in the Digital Single Market Directive, to the extent necessary to ensure the effectiveness of EU law in the national territory, at least during emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns. Further clarify that this interpretation is compatible with the CJEU case-law.
• A balanced interpretation of the fundamental rights to freedom of information, freedom of science and education, on the one hand, and the exclusive rights of authors and rightholders, on the other, permits, at least during emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns, remote educational, research and public interest activities that are equivalent to those conducted on the premises of educational institutions, research organizations and cultural heritage institutions. For example:
  1. teachers displaying works and other subject-matter during a streamed or recorded online class accessible only to the school’s students or pupils;
  2. librarians and other facilitators reading aloud entire books to children, and displaying the respective illustrations, during a library’s live streamed story-time session;
  3. libraries, archives and other cultural heritage institutions making available, for the purpose of research or private study, to individual members of the public by secured electronic environments copies of works and other subject-matter which are contained in their collections, on the condition that the access occurs on the basis of the one-copy-one-user model; and
  4. online lending by libraries, archives and other cultural heritage organizations of digital copies of entire works or other subject-matter obtained from lawful sources, on the condition that the lending occurs on the basis of the one-copy-one-user model.

Endnotes:

1. This paper was authored by Teresa Nobre. The paper benefited from the comments provided by Alek Tarkowski, Benjamin White, Brigitte Vézina, Elena Izyumenko, Jean Dryden, Julia Reda, Maja Bogataj, Natalia Mileszyk, Paul Keller, Stephen Wyber and Teresa Hackett.
2. Recital 3 of the InfoSoc Directive states that this Directive “relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.” Recital 84 of the CDSM Directive reads as follows: “This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter. Accordingly, this Directive should be interpreted and applied in accordance with those rights and principles.”.
3. The fact that Article 17/2 of the Charter also protects copyright with fundamental rights does not mean that “that right is inviolable and must for that reason be protected as an absolute right” (see e.g. CJEU judgments of 24 November 2011, Scarlet Extended, C‑70/10, para. 43; of 16 February 2012, SABAM, C‑360/10, para. 41; and of 27 March 2014, UPC Telekabel Wien, C‑314/12, para. 61). See e.g. CJEU judgments of 29 January 2008, Promusicae, C‑275/06, para. 70; of 16 July 2015, Coty Germany, C‑580/13, para. 34; and UPC Telekabel Wien, C‑314/12, para. 46.
4. See e.g. CJEU judgments of 4 October 2011, Football Association Premier League, C‑403/08 and C‑429/08, para. 163, and of 3 September 2014, Deckmyn, C‑201/13, para. 23.
5. This activity falls under the broad education exception provided for in article 5(3)(a) of the InfoSoc Directive, and it is also protected under the mandatory digital education exception provided for in article 5 of the CDSM Directive.
6. This activity is covered by the broad education exception provided for in article 5(3)(a) of the InfoSoc Directive, which does not limit the potential beneficiaries of the exception and covers any uses for the purpose of “illustration for teaching”. Clearly, libraries have an education mission and can benefit from this exception when providing educational services. Reading aloud, insofar as it serves a number of educational purposes [it “models reading skills for students, it equalizes the experience between different leveled readers, and it provides a shared jumping off point for further individual inquiry” (Reading Aloud: Fair Use Enables Translating Classroom Practices to Online Learning by Meredith Jacob et al, available at https://tinyurl.com/read-aloud-online)], fits within the scope of the exception. Indeed, although the term “sole purpose of illustration for teaching” is not defined by the InfoSoc Directive, it is now clarified in the CDSM Directive that it should be understood as covering uses that “support, enrich or complement the teaching, including learning activities” (Recital 21)
7. We believe that framing this activity within the scope of the education and research exception conforms to the letter of article 5(3)(a) of the InfoSoc Directive and to the spirit of the EU lawmaker when devising the existing list of exceptions. In fact, the exception in article 5(3)(n) of the InfoSoc Directive, which covers similar activities but on dedicated terminals on the premises of those institutions, demonstrates that the lawmaker intended to facilitate access to works and other subject-matter contained in the collection of these institutions for purposes of research or private study. But whereas the wording in article 5(3)(n) covers premises-only access, article 5(3)(a) covers remote access. The suggested conditions are not imposed by the letter of article 5(3)(a). They are inspired by (i) an exception that was specifically designed to deal with online activities, the mandatory exception for digital and cross-border teaching activities provided for in article 5 of the CDSM Directive (“secure electronic environments”), and (ii) the “optional” public lending exception provided for in Article 6(1) of the Rental and Lending Rights Directive (one copy, one user), since the CJEU has already defined the conditions to apply that exception in the with regards to digital copies. We argue that the activity should be permitted, at least, if those conditions are respected.
8. The CJEU already clarified that the lending of electronic books may be treated in the same way as the lending of traditional books, in its judgment of 10 November 2016, Vereniging Openbare Bibliotheken, C-174/15. According to the court, the concept of ‘lending’ covers “the lending of a digital copy of a book, where that lending is carried out by placing that copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user” (para. 54).
9. The source of law would not be, in that case, the EU Charter of Fundamental Rights, whose application is limited to the EU institutions and bodies and to the Member States (when they implement EU law), but the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) or the constitutions of EU member states, from which the Charter draw inspiration. Indeed, the above-mentioned fundamental rights are listed in Article 10/1 second sentence and in Article 2 first sentence of Protocol 1 to the ECHR, as well as in the constitutions of many EU Member States, and these can be applied in conflicts between private persons in the Member States that recognize the horizontal application of those international and national norms that protect fundamental rights.
10. See e.g. Geiger, Christophe, Reconceptualizing the Constitutional Dimension of Intellectual Property – An Update (November 29, 2019). Forthcoming in: P. Torremans (ed.), “Intellectual Property and Human Rights”, 4th ed., Austin/ Boston/ Chicago/ New York, The Netherlands, Kluwer Law International, 2020 ; Centre for International Intellectual Property Studies (CEIPI) Research Paper No. 2019-11. Available at SSRN: https://ssrn.com/abstract=3496779 or http://dx.doi.org/10.2139/ssrn.3496779
11. See the judgments of 10 January 2013 Ashby Donald v. France, no. 36769/08, and of 19 February 2013 Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden, no. 40397/12 (“The Pirate Bay”).
12. See the judgments of 29 July 2019 Funke Medien, C-469/17; Pelham, C-476/17; and Spiegel Online, C‐516/17.
13. See Funke Medien, paras. 57 and 58; Pelham, paras. 59 and 60; and Spiegel Online, paras. 42 and 43.
14. See Funke Medien, paras. 64, 67 and 68; and Spiegel Online, paras 51 and 52.
15. See Funke Medien, para. 58; Pelham, para. 60; and Spiegel Online, para. 43.
16. See e.g. judgment of 26 February 2013, Melloni, C‑399/11, para. 59.
17. See e.g. Melloni, C‑399/11, para. 60.
18. See e.g. Geiger, Christophe, op. cit.

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COMMUNIA policy​ ​paper on the review of the PSI Directive

In 2003 the Directive 2003/98/EC on the re­use of public sector information (2003 Directive) came into effect and obliged EU Member States to make information and resources that they produce and collect reusable to the greatest possible extent

In 2013 the 2003 Directive was amended by Directive 2013/37/EU (2013 Directive). The 2013 Directive made several important changes, including:

1. all legally public sector documents became subject to reuse (“reusable by default”),
2. museums, archives, and libraries (including university libraries) were covered under the directive,
3. any fees for acquiring PSI were limited to marginal costs of reproduction, provision and dissemination, and
4. documents and metadata were to be made available for reuse under open standards and using machine readable formats.

From 19 September 2017 to 12 December 2017 the European Commission conducted a public consultation on the review of the PSI Directive (2017 PSI Review). This review could lead to further positive changes that will lead to an even greater opening of public data to the possibilities of their re-use by all interested parties.

Previous position papers on the PSI Directive:

• COMMUNIA policy paper on the re­use of public sector information in cultural heritage institutions – November 2014
• COMMUNIA policy paper on proposed amendments to PSI Directive – January 2012

Our Assessment

Despite the directive being in force for 14 years, it is still far from achieving the objectives set in it. There are still considerable differences in the rules and practices in the Member States related to the exploitation of PSI resources. In particular we believe that further harmonisation of national access regimes among the Member State and further alignment among EU legal instruments should be especially considered for better fulfillment of the PSI Directive goals. More of our remarks regarding the PSI Directive can be found in the questionnaire prepared in connection with the public consultations process (2017 PSI Review). The Commission promises to take into account the consultation outcome in the context of the review of the PSI Directive. Here are our recommendations to strengthen access and reuse of PSI, if the Commission opens the PSI Directive for amendment.

Recommendations

COMMUNIA advocates for policies that expand the public domain and increase access to and reuse of culture and knowledge. For this reason materials from the public domain, or held by cultural heritage institutions, research and educational establishment are located in the center of our interest.

1. Data held by educational and research institutions (publications, data research) should be included in the scope of PSI Directive

In the 2017 PSI Review, the Commission asked questions about whether documents¹ held by educational and research establishments, schools and universities—which are currently exempt from the scope of application of the PSI Directive—should be made available for reuse.

In our opinion these documents (save for those necessary to preserve an individual’s privacy, commercial confidentiality and legitimate rights of third parties etc.) held by educational and research establishments, schools and universities should become available for reuse with as few restrictions as possible.

Of course, it could be worthwhile to share documents of an administrative nature—especially in support of transparency and public accountability—assuming that any privacy considerations have been properly addressed.

Clearly, the higher value documents to make subject to permissive reuse rights regimes would be those of a scientific nature. In its very essence this type of information is meant to be shared, both to aid research efforts across institutions, promote cross-sector collaboration, and also for education and teaching purposes. The argument for sharing these types of documents and data sets becomes stronger when these resources are developed through the use of public funding.

The results of publicly funded scientific research (and the data to back it up) should be made available under permissive open licenses (such as CC BY), or even put into the worldwide public domain using a tool like the CC0 Public Domain Dedication. This means that researchers, scientists, doctors, patients, and the public around the world will get get the access they deserve and need in order to be informed on current scientific research, learn about promising medical innovations, and collaborate to solve problems.

Having immediate open access to the outputs of publicly funded scientific research will contribute to the goals of the EU’s Horizon 2020 programme. According to its guidelines document, improving access to scientific publications and data helps to: “1) build on previous research results (improved quality of results), 2) encourage collaboration and avoid duplication of effort (greater efficiency), 3) speed up innovation (faster progress to market means faster growth), and 4) involve citizens and society (improved transparency of the scientific process).” In addition, the Horizon 2020 programme Model Grant Agreement already requires that grantees must ensure open access to all peer-reviewed scientific publications—meaning that “any scientific peer-reviewed publications can be read online, downloaded and printed.” It should go further to require that reuse rights be granted to both publications and associated datasets, by requiring that permissive open licenses be applied at the time of publication.

Therefore, we recommend that scientific research results resulting from public funding should be made available under a permissive reuse rights regime. However, the Commission should ensure that policy efforts to improve access to publicly funded scientific research are complementary—and not in conflict with—each other.

2. Ensure that all documents that are not covered by third party intellectual property rights are available for reuse

According to the 2013 Directive documents held by cultural heritage institutions are within the scope of the Directive only if: (i) they are in the public domain, either because they were never protected by copyright or because copyright has expired; or (ii) the cultural heritage institution is the original right holder or assignee of the intellectual property rights.

However, the reuse obligations deriving from these two situations are not the same. For (i) documents that are in the public domain the general rule applies: documents must be re­usable if they are generally accessible (Art. 3(1)). In the different case of (ii) documents for which the institution holds the copyright and/or related rights the derogatory rule of Art. 3(2) applies: the institution can decide whether it wants to allow re­use or not. Nonetheless, if re­use is allowed it must follow the general requirements of transparency and non­discrimination, as well as the specific limits on the charging policy. Consequently, documents whose intellectual property rights belong to third parties, but a specific copy thereof is held by a cultural heritage institution are excluded from the Directive, as confirmed by Recital 22 and Art. 1(b) of the consolidated version, and accordingly there is no obligation to allow re­use.

Unfortunately, Recital 9² of the 2013 Directive introduces some uncertainty. It might be interpreted as implying that any documents held by a library, museum, or archive, but originally owned by a third party and whose term of protection has not yet expired is a document for which third parties hold an intellectual property right, and therefore is excluded from the scope of the Directive. This reading seems contrary to the provisions established in Article 3 (consolidated version) and contradicts the overall objectives and principles enshrined in the Directive (to open ­up public knowledge for re­use).

As we argued in COMMUNIA policy paper on the re­use of public sector information in cultural heritage institutions  Member States should implement the 2013 Directive in line with the principles established in Article 3 (consolidated version) and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislation. Unfortunately, not all Member States have implemented the directive this way.³ This, in our opinion, creates barriers that hinder the reuse of public sector information held by cultural heritage institutions across the EU.

Therefore we recommend to revise the Directive to ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislations.

3. Codifying open licensing as a standard mechanism for sharing public sector information

The recitals of the 2013 revised PSI Directive and 2014 guidelines on recommended standard licences, datasets and charging for re­use of documents put a lot of emphasis on the use of standard open licenses. It especially concerns documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions that have these works in their collections. Unfortunately, there is no direct requirement in the Directive itself obliging PSI providers to license materials under these standardised open licenses.

We’ve argued that PSI should be shared as a part of the global public domain using the CC0 Public Domain Dedication, with the second best route is using standard, permissive open licensing (such as CC BY). A positive aspect the updated 2013 Directive is the narrowing of the language around acceptable licensing for PSI by removing the text encouraging the development of additional open government licenses. And the July 2014 guidelines mentioned above was a welcome addition to the licensing discussion, as it recommended standardized, open licenses such as CC 4.0, CC0, and other Open Definition-compliant licenses. These open licensing recommendations should be codified within the text of the Directive itself, or made mandatory in some other fashion.

There could still be barriers to adoption and use of standardised open licensing for PSI. For example, on https://www.europeandataportal.eu/—the website that “harvests the metadata of Public Sector Information available on public data portals across European countries”—users can explore datasets available under dozens of licensing options. In fact, upon recent investigation, there were 99 licenses listed, ranging from “cc-by,” to “OGL 2.0” to “Etalab Open License,” among many others. There are a few challenges with this this expansive list. First, it’s obvious that the European Open Data Portal website is indexing “open data” available under customized, non-standardised licenses, such as the “Vlaamse Open Data Licentie”—which seems to contain over 3200 data entries. Second, there are several license names that do not represent any specific license choice at all—for example the listings “notspecified” (8900 entries) or “other” (1700 entries). These types of choices will simply confuse prospective data reusers, or may prompt those users to ignore those entries altogether. Finally, there are several license namings that could possibly be referring to the same open license, but which are spelled differently, and thus are broken into separate listings. For instance, there are several separate listings that may be referring to the CC0 Public Domain Dedication, but which are named “cc-zero” (8200 entries), “cc-0” (3600 entries), and “CC0 1.0” (600 entries). In order to promote maximum reuse of PSI, this licensing metadata should be cleaned up, and harmonised for future additions to the portal.

Therefore we recommend the Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.

Charging for re­use

The 2013 Directive states that public sector bodies can only charge users for the costs incurred. This makes sure that public sector bodies will not make profit out of their activities. This is based on the idea that public sector information is generated by public money. It would therefore be unreasonable to ask the taxpayers to pay twice. Reuse is more likely to occur when there is no financial barrier for the users to use documents.

CHIs have been included in the scope of the Directive because these institutions have resources on which added value can be built for the public benefit. The Directive also states that libraries, museums, and archives are explicitly allowed to charge above marginal cost, but charges “should not exceed the cost of collection, production, reproduction, dissemination, preservation and rights clearance, together with a reasonable return on investment.” This enables cultural institutions (CHIs) to generate revenue beyond simple cost recovery. This enables CHIs to charge for cultural heritage resource that have already entered into the public domain. These cultural heritage institutions enjoy significant flexibility in setting fees for re-use of cultural resources, possibly by restricting access to cultural resources.

Works made available for re­use by cultural heritage institutions that are publicly funded should be available at the costs incurred similar to the public information bodies. It does not make sense that these CHIs can charge fees at a different scale than other PSI bodies seeing that they have similar tasks in providing access to publicly funded resources with minimal restrictions.

Any (additional) fee for re­use will severely limit the scale of re­use. CHIs have the objective to give access to culture and information to a wide and varied audience. It is therefore contradictory to create additional barriers to works that were made available for reuse by CHIs.

Therefore we recommend to revise the Directive to ensure CHIs and public sector bodies that are alike in their aims and funding structure can only charge at the costs incurred. We emphasise the importance of suitable state funding for CHI which will also enable them to make as many resources reusable as possible.

Conclusion

While the Commission has made great strides with improving access to and reuse of public sector information in Europe, there’s now another opportunity to update the PSI Directive to make it maximally useful and impactful. If the Commission decides to amend the directive, we believe that it should address the following policy recommendations: 1) It should mandate that scientific research results resulting from public funding should be made available under a permissive reuse rights regime, 2) It should ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislations, 3) it should codify its guidelines on permissive standard licences for PSI, and 4) it should ensure CHIs and public sector bodies that are alike in their aims and funding structure can only charge at the costs incurred.

Endnotes

1. The questionnaire outlined two distinct sets of documents, including 1) those of an administrative nature such as budgets, enrolment of students, human resources, and 2) those that constitute the scientific output of a research establishment or university.
2. “Taking into account Union law and the international obligations of Member States and of the Union, particularly under the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade ­Related Aspects of Intellectual Property Rights, documents for which third parties hold intellectual property rights should be excluded from the scope of Directive 2003/98/EC. If a third party was the initial owner of the intellectual property rights for a document held by libraries, including university libraries, museums and archives and the term of protection of those rights has not expired, that document should, for the purpose of this Directive, be considered as a document for which third parties hold intellectual property rights”
3. Poland is an example, where only documents held by cultural heritage institutions are possible to reuse only if they are in the public domain, either because they were never protected by copyright or because copyright has expired. The remaining resources, even if the institution owns the copyright, have been excluded from reuse.

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COMMUNIA policy​ ​paper​ on​ ​the​ EU ​Database​ ​Directive

This policy paper is released in the context of the European Commission’s public consultation on the application and impact of the Directive 96/9/EU on the legal protection of databases (Database Directive). The Directive aimed to harmonise the treatment of databases under copyright law and introduced the sui generis right for non-original databases.

The Database Directive came into force on 27 March 1996. The objective of the Directive was twofold. On the one hand it attempted to remove existing differences in the legal protection of databases by harmonising the rules that applied to copyright protection. And on the other hand it aimed to safeguard interests of businesses and users alike, namely the investment of database makers, and ensure that the legitimate interests of users of information contained in databases were secured.

We have taken note of the 2005 First evaluation of Directive 96/9/EC on the legal protection of databases (hereafter “evaluation report”), and we welcome the ongoing ex-post evaluation of the Commission, of which the public consultation is part, to determine whether the Directive fulfils its policy goals and is fit-for-purpose in a digital, data-driven economy. In light of the ongoing ex-post evaluation of the Commission, we have analysed whether the Directive has achieved its aims and set forth a series of recommendations.

Analysis

Before the Directive was implemented the criteria for receiving copyright protection for databases differed within the European Union. The biggest difference was that in common law countries no substantial creativity or originality was required to receive copyright in a database. Mere ‘sweat of the brow’ was enough to trigger a copyright protection in the database. In most of the other EU countries with a droit d’auteur tradition, there was some level of originality required to be granted copyright protection.

Copyright

The Directive has harmonised copyright concerning databases in the EU. The level of originality required for the application of copyright to databases has been raised in the common law countries in order to qualify for copyright protection. According to the evaluation report (p.17), it is unclear whether Chapter II (Copyright) of the Database Directive has played a substantial role in the enabling investments of database producers.

Sui Generis Right

In addition to harmonising copyright protection for databases in the EU, the 1996 Directive introduced a new sui generis right that protects databases, including “non-original” databases that do not qualify for copyright protection. The sui generis right protects extraction and reutilisation of the whole or a substantial part of the contents of a database. The right applies when there has been a qualitatively or quantitatively substantial investment in obtaining, verifying, or presenting the contents of a database.

There are no clear indications that the sui generis right helped to create a stronger EU database market. This fact is widely discussed in the evaluation report, noting that, “its economic impact on database production is unproven […] the new instrument has had no proven impact on the production of databases” (p. 24).

It is clear that the Database Directive has not produced legal clarity for both database producers and users. The directive has resulted in an unnecessary obstruction for the access to and reuse of information in a number of areas. It does not exclude public databases that fall under Directive 2013/37/EU on the re-use of public sector information (PSI Directive) from qualifying for the sui generis protection.

The Database Directive failed to give databases producers that wish to make their databases available on an open access basis the choice to opt out of the sui generis protection or a way to communicate conditions for reuse. This has led to some recent projects (such as Wikidata and Europeana) to simply sidestep the right altogether by releasing their data into the public domain using the CC0 Public Domain Dedication, thus neutralising copyright and sui generis rights to ensure that their data is freely (re)usable. It should be noted that the most recent iteration of the Creative Commons suite (version 4.0 released in 2013) licenses sui generis database rights alongside copyright, but the extent of the use of the 4.0 licenses as a tool primarily to address the sui generis right is unclear.

The sui generis right has also led to an enclosure of the commons because it creates new rights for works that either do not qualify for copyright, for which copyright has expired, or which are otherwise in the public domain. As we have noted in our policy paper on the review of the EU copyright rules, this practice is highly problematic because it forms an unnecessary barrier to access and reuse of information in the public domain. This is worsened by the fact that the term of protection – which lasts for 15 years – can be renewed after any substantial investments to the contents of the database (Database Directive, Art. 10). This enables the possibility that a database could be protected in perpetuity. This mechanism can prevent databases from ever entering the public domain. The possibility of continuously renewing a right is a fundamental threat for the commons of information.

From the users perspective, the sui generis right has created legal uncertainty about if (or how) they may use data that is covered by the sui generis right. The evaluation report admits that the sui generis right is “difficult to understand”. The evaluation report (p.24) partially contributed to the fact that “None of these terms [referring to the terms laid down in article 7] has a precise legal meaning and none of them has an established tradition in copyright law.”

This produces a chilling effect. Users simply do not attempt to utilise databases out of confusion, or the fear that they may be infringing on a right that is difficult to understand. By introducing the sui generis right separate from copyright protection, it also further complicated the current framework by enabling even more parties to hold rights in a database. For example, there might be copyright on the underlying data, and there could be a separate rightsholder under the sui generis right for the person/entity that aggregated the data. The evaluation report admits that the nature of the dual rights regime of the Directive has “caused confusion among users as the same database can be protected by both copyright and ‘sui generis’ right” (p. 23).

Limitations and Exceptions

The limitations and exceptions that apply to the Database Directive are not harmonised with those laid out in Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive). The limitations and exceptions applicable to both copyright in databases and the sui generis right are of a different scope (more limiting) than those in the InfoSoc Directive. More generally, the exceptions are optional – not mandatory – so member states can choose to ignore their implementation. The exceptions lack clarity and deviate from standard practices. For instance, article 9 of the Database Directive does not specify that for the private purposes or purposes of illustration for teaching or scientific research (re)use is allowed in addition to extraction. This has produced a complex patchwork of exceptions across Europe.

The exceptions to the sui generis right also put some users at an unfair disadvantage. For example, the exception for the purposes of illustration for teaching or scientific research is limited to the extraction of data for non-commercial purposes. The limitation to only extraction could prevent researchers from utilising the data in ways necessary for their research, such as text and data mining. The limitation for only non-commercial purposes ignores the fact that research and innovation takes place beyond the walls of the traditional not-for-profit research university, and oftentimes includes projects that involve the private sector too.

We have also noted above that there is a fundamental contradiction between the provisions of the PSI Directive – in which the sui generis right would still be applicable to databases that should be made available as public sector information. There is no limitation or exception to the sui generis right that would rectify this situation.

Recommendations

While the Database Directive may have partially harmonised the legal protection of databases with regard to copyright, the sui generis right has produced negative effects for database producers and users. We have previously called for the elimination of the sui generis right because it imposes additional restrictions to the use of data without demonstrating any additional benefit. The sui generis right has not ensured the legitimate interests of users to access information compiled in databases because it has produced a confusing legal environment in which users do not know if (or how) their uses are subject to the sui generis right. It has created a situation where open source projects prefer to sidestep the right by leveraging legal tools such as the CC0 Public Domain Dedication for the publishing and sharing of databases, because the sui generis right is at best cumbersome, and at worst directly opposed to the principles of sharing information without additional strings attached. Finally, there is no evidence that the sui generis right has improved EU competitiveness by increasing the production of databases.

The Commission should repeal the sui generis database right and harmonize the limitations and exceptions for the copyright section of the Database Directive with the Infosoc Directive. If it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right. It should also expand the sui generis exceptions and make them mandatory. Finally, it should set a maximum term so that there cannot be perpetual extensions.

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COMMUNIA policy paper on exceptions and limitations for education

Copyright policy needs to empower—and not thwart—the activities of teaching and learning. Exceptions and limitations to copyright for education should support necessary access and re-use of copyrighted content of all types in a variety of education settings and across borders. In this context, exceptions and limitations should promote positive learning outcomes, and the rights of copyright owners should be balanced with the public interest. Copyright needs to be reshaped to be fit for modern education—which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as off.

The right to education is universal. It is ensured by the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. In Europe, this fundamental right is recognised by the European Convention on Human Rights. In many member states, education is a recognised constitutional right.

Copyright laws shall not hamper the exercise of this right. The 1996 WIPO Copyright Treaty “recogniz[es] the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention…”.

The best way to achieve the proper balance of interests at stake is through the adoption of an exception or limitation to copyright for educational purposes that meets the following requirements: it should be able to address local and cross-border education needs; it should be mandatory; it should be neutral with regard to media type, format, and technology; it should be flexible; and it should cover all necessary uses provided they are in accordance with fair practice.

The exception or limitation should be able to address local and cross-border education needs

In the European Union, education is the responsibility of member states. As a general rule, most educational institutions strive to provide educational instruction that fits needs of learners in a given state, region, or city. In many cases, small groups of people run schools, associations, or informal educational projects that cater to specific needs of a given group—be it children with special needs, local communities with specific traditions, or a student groups with particular learning interests.

School systems and educational institutions have different goals and rely on different pedagogical approaches and curricula. Learners have different interests and preferred ways of learning. Yet access and ability to use copyrighted works (literary works, music, works of art, etc.) as educational resources is a universal need—no matter which language they are written in or which world view they represent.

Copyright law needs to look beyond the walls of the classroom and the school building. Education is understood today as a process that encompasses both formal and informal teaching, conducted by a multitude of institutions, and even learners themselves. At the same time, outdated copyright law often limits the scope of exceptions and limitations to schools and other formal educational institutions. Instead of crafting limitations and exceptions that permit the diverse uses of copyrighted content for any educational purpose, our laws primarily focus on the type of person, institution or group doing the teaching.

Furthermore, for a long time education has taken place across borders and between cultures with different teaching mechanisms, styles, and content. Since 1987, students in the European Union have benefited from mobility schemes, such as the Erasmus and Marie Skłodowska-Curie programs. The eTwinning program, started in 2005, currently involves over 230,000 educators and learners in over 5000 projects that collaborate with the use of ICT. A European commitment to free flows of information, people, and resources across the continent is clearly visible in the education sector.

Online education is also not limited by national borders. Multiple formal and informal initiatives use the internet to provide innovative, high quality education to learners across Europe. From Wikipedia to Khan Academy to MOOCs (which have been the focus of so much European support in the educational sector), these projects supplement local education. The education sector constitutes an important part of a market that is meant to be a Digital Single Market across the European Union.

For this reason, the treatment of education as an exception or limitation to copyright cannot be dealt with by member states alone. Teresa Nobre from Creative Commons Portugal studied the extremely fragmented landscape of educational exceptions and limitations across Europe. Looking at the results, it is hard to see how these widely-differing rules are shaped to fit EU-wide educational uses of copyrighted works. Instead, it becomes clear that the influence of partisan interests has led to a fragmented, dysfunctional regulation of the use of copyrighted works for educational purposes in the European Union. To overcome this problem, a harmonized solution within the European Union needs to be developed and implemented.

The exception or limitation should be mandatory

The preamble of the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“InfoSoc Directive”) says, “(t)his Directive should seek to promote learning and culture by protecting works and other subject-matter while permitting exceptions or limitations in the public interest for the purpose of education and teaching”.

Such an objective, while commendable, cannot be reached with merely optional exceptions and limitations to copyright. As we see, domestic treatment of education within the European Union is far different than that encountered in the rest of Europe. Apart from quotations, which are treated similarly within the EU countries, exceptions and limitations dealing with uses of protected works for educational purposes are a patchwork of different solutions.

This compromises cross-border uses of copyrighted works for educational purposes. For example, while in Bulgaria a teacher can assign to their students the task of translating an entire poem into another language, in Italy this is not possible. Therefore, a student in Italy wishing to participate in a distance-learning course provided by a Bulgarian educational institution could not complete the assignment without infringing Italian copyright law.

Sharing of educational resources is also impaired due to differences between national copyright laws. For example, an educator in the Czech Republic is allowed to make teaching compilations of copyrighted works for use in class for free, but the same teacher in Austria is required to pay an equitable remuneration to the authors. If such a teacher decides to share such an educational resource with colleagues abroad, namely through online networks of teachers, he or she could be infringing copyright.

Finally, market players that wish to add value by developing novel technologies, services, and content also have a hard time trying to understand the differing national implementations of limitations and exceptions. For example, online uses of quotations for educational purposes are covered in all of the EU, except in Austria and Lithuania. In those two countries, one can write a quote of a literary work in a paper, but cannot use that same quotation in online contexts. Copyright laws in those two countries will therefore be an obstacle to the free movement of educational resources.

The only way to solve this balkanization of legal solutions within the European Union is through a mandatory exception or limitation to copyright for educational purposes at the EU level.

The exception or limitation should be neutral with regard to media type, format, and technology

A wide spectrum of media formats is potentially available to teachers: movies, multimedia and interactive materials, computer programs and mobile applications, and educational games. Content can also come from a variety of sources beyond the conventional field of education publishers. For example, scientific articles and datasets, cultural heritage collections, and artworks can be used as interesting and informative educational resources, given the proper context. There are choices between digital and analog, between media formats and content types, and choices that are made by individuals or education institutions.

The existence of such variety in learning and teaching styles, mechanisms, and materials means that it’s impossible to clearly declare that one piece of content is “educational” while another piece of content is not. Nevertheless, a few member states discriminate the categories of works that can be covered by a certain exception or limitation for education. For instance, cinematographic works are not covered by the teaching compilation exception or limitation provided by copyright laws in Austria, Denmark, Finland, Greece, Hungary, Ireland, and Sweden.

Publishers argue that textbooks and other printed content should fall outside of the scope of exceptions and limitations. Yet they provide no argument to support their position. There is no evidence showing that, during the last decades of educational practice, sales of textbooks were harmed by the existence of copyright exceptions and limitations for education. Surely, if the purpose of use harms the educational publishing market, it should not be exempted or should at least be subject to a remuneration. That does not mean, however, that it should not be legal to use in education all categories of works (including textbooks and other works intended for educational use) provided that the purpose is noncommercial or does not otherwise harm the market.

All copyrighted work that is to be used for educational purposes—no matter the category, media type, format, or delivery mechanism—should therefore be within the scope for use under exceptions and limitations to copyright. In particular, we should guarantee that educators in the digital, networked environment receive the same degree of freedom that they have been granted by laws regarding access and re-use of analog content under a copyright exception or limitation.

Publishers believe that digital resources should be made available through closed, membership-only platforms—making the use regulated by technology, and making legal exceptions unnecessary. This is a model that breaks education in the digital age and destroys all the added-value provided to education by digital technologies and the web. The ability to access and use content under an exception or limitation to copyright for educational purposes should not be able to be restricted by technological barriers or contractual agreements.

It is no longer acceptable to have an exception or limitation to copyright for educational purposes limited to analog content and its uses—as is the case with the scope of such provisions in some member states. Copyright law should no longer avoid the issue of educational content being used and shared online.

We also need to acknowledge the fact that increasing numbers of educators and students—especially the most innovative, driven, and ambitious—are becoming creators of educational content themselves. We need to build digital environments and legal tools that support all educators as co-creators of content, not simply consumers of pre-packaged goods. “User generated content” should not be understood as simply movies of cats on YouTube and status updates on Facebook; it is also rich educational content created by educators themselves for use by their students and others.

The optional exception or limitation for educational purposes provided in the InfoSoc Directive was designed to cover all categories of copyrighted works, regardless of their format, and to be technologically neutral, exempting all acts of use necessary for both face-to-face teaching and online and digital education. Such legal provision is in accordance with the Three-Step-Test, and it is only a matter of political will to make it mandatory in all member states.

The exception or limitation should be flexible

The system of targeted, purpose-based exceptions defined in current national copyright laws does not offer legal certainty, is too rigid, and cannot be made future proof.

First, a mandatory exception or limitation for educational purposes needs to be simply designed, since is aimed at teachers, students and other education actors. The potential beneficiaries should not be required to look into complex legal provisions in order to figure out which one applies to their intended use. Instead, all the uses (including without limitation reproduction, distribution and communication to the public) should be covered in a single exception or limitation. The language should be user friendly: clear, and easy to understand. Surely, legal provisions need to rely on general concepts, and will be subject to ongoing judicial interpretation. However, EU lawmakers should strive to craft the language with as much clarity as possible.

Second, a mandatory exception or limitation for educational purposes needs to be flexible. Copyright law needs to adapt to rapid technological change, which naturally affects education. A legal provision that limits the uses covered will not be able to cover new uses even if they are similar to past ones. An “open norm” will increase flexibility of the copyright law.

Such a norm would provide for exceptions or limitations that work in a technologically neutral manner. Currently, at a local level, digital and online education does not always benefit from the same exceptions and limitations as traditional forms of teaching conducted in the classroom. This is due to the fact that several national legal provisions specify the acts of use covered by the exception or limitation, not including in those exhaustive lists all the rights necessary for digital and online uses (e.g. reproduction, communication to the public, making available to the public).

As an example, until recently Polish copyright law allowed educators to make only analog duplicates of copyrighted content, but not digital copies. A teacher could therefore play in a classroom a VHS recording of a movie, but could not show a movie streaming from an online service. And the most popular medium—the DVD—fell into a copyright grey zone. An open norm, if introduced, would make it clear that if a teacher can play a VHS tape in class, she can just as well us a DVD, a file, or an online stream.

The Three-Step Test does not preclude exceptions or limitations that are open ended. This has been clearly expressed in the “Civil Society statement on Exceptions and Limitations for Education”, submitted to WIPO in 2012. In fact, the optional exception or limitation for educational purposes provided in the InfoSoc Directive is already written in a neutral language (“use”), exempting all acts of use, not just specific ones. Such a policy option needs to be reflected in the national laws of member states.

The exception or limitation should cover all necessary uses provided they are in accordance with fair practice

It is commonly understood that the lack of remuneration for a use under an exception or limitation to copyright does not mean that such exception or limitation does not meet the three-step test. There are currently several education exceptions and limitations to copyright in the European Union that exclude any compensation to the rightsholder. Some of those national law provisions only cover uses that do not have commercial purposes or that are not directed towards an economic advantage. Others cover the educational use as long as it is in accordance with fair practice. Our understanding is that users who wish to leverage content under an educational exception or limitation to copyright and do so in accordance with fair practice should generally be able to do so free of cost.

Currently, the InfoSoc Directive exempts uses of copyrighted works for education provided that there is no commercial purpose involved. When dealing with the issue at a local level, though, some member states have decided not to rely on the commercial/noncommercial distinction, instead exempting the use as long as it is in accordance with fair practice (e.g. Cyprus). Such terminology is not unfamiliar to the EU lawmakers, who also use it when exempting the act of quotation.

Results from the study of How the Online Population Understands “Noncommercial Use” – commissioned by Creative Commons – show that there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial. Specially if the uses generate some amount of money for the user (e.g. through a micro-payment service), or if there is an advertisement involved. As MEP Julia Reda puts it, “(i)f there is a consensus on this matter, it’s that the realm of commercial usage is entered long before a person makes a profit”.

On the other hand, it should also be noted that there is evidence showing that the EU education sector relies on exceptions and limitations to copyright to produce new materials, estimating that, in 2007, the added value generated by the existence of such rules equaled nearly 350 million euros, which is equivalent to 60% of the total public expenditure on education.

Moreover, competing knowledge intensive economies, such as China, South Korea, Singapore, Taiwan and the United States have “fair use” style clauses in their copyright laws. Those flexible legal provisions are designed to allow the use of copyrighted works so long as the use is deemed “fair”. Evidence shows that in the U.S. the fair use industry represented, in 2011, one sixth of the total U.S. GDP. The education sector is identified as one of the core fair use industries, since its activities depend in large measure of the fair use freedoms.

A single mandatory exception or limitation to copyright for education within the European Union should, therefore, exempt all uses of copyrighted works that are in accordance with fair practice. Uses for noncommercial purposes and uses that, despite being for a commercial purpose, do not harm the market for the works should be considered to be in accordance with fair practice.

The exception or limitation is crucial because licensing will never be a wholly adequate solution to provide access to copyrighted works for educational purposes

Teaching and learning about all types of subject matters (arts, philosophy, music, etc.) cannot be possible without the use of copyrighted artworks, literary works, musical works, etc. For as long as literary and artistic works are protected by copyright, there will always be an obligation and duty of teachers towards society to use copyrighted works. At the same time, educators deserve the freedom to use whatever copyrighted works they require in order to create the best educational environment for their students.

Unfortunately, there is no perfect marketplace to supply the resources necessary to support the diversity of teaching and learning needs and styles. Licensing, (including collective licensing and open licensing), is not—and will never be—a comprehensive solution for access and re-use of educational materials.

Publishers argue that education exceptions to copyright were a solution in times of scarcity—and that licenses should be used in times of abundant content and information. This argument makes no sense. Finding rights owners and negotiating licenses incurs high transaction costs. Similarly, it’s difficult to create a license that will fit all types of content and all types of uses. But more importantly, educational institutions cannot adequately support teaching and learning activities if they are fully dependent on the will of a particular licensor, who may revoke access or increase costs as they see fit.

In fact, as pointed out on the European Commission’s Green Paper on Copyright in the Knowledge Economy, in the few European countries where collective licensing schemes in the field of education are in place, the solution has not proven to be effective: collecting management organizations sometimes offer restrictive agreements,  and in the worst-case scenario no agreement will be reached. It’s a no-win situation: the educational content is not delivered to learners, and the creators do not get paid.

And even though open licensing has become a popular way to permit access and re-use of educational materials, the entirety of educational content will never be openly licensed. This has been addressed by Creative Commons, in its statement on copyright reform:

“It has been suggested that the very success of CC licenses means that copyright reform is unnecessary — that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them.”

Open licensing for educational resources, as proposed by the OER movement, plays an important role in securing the availability of educational resources. In particular, publicly funded resources should be made broadly available in the global digital commons under open licenses. In this way, the public will be granted access and re-use rights to the educational materials that they pay for. Where public entities have the ability to couple grant funding with open licensing requirements, they should do so.

While there are increasing numbers of policies that support public access to publicly funded educational content, there will always be a large corpus of works that will be developed outside of this scheme but which should be available to use by teachers and students. This is where the harmonised exception or limitation to copyright for educational purposes is crucial. Access to all these types of copyrighted works can only be ensured by law, and not through licensing schemes.

Conclusion

Access to education is a universal human right, and our international agreements stress the need for balance between the rights of authors and the public interest, especially within the context of education. The existing limitations and exceptions across the EU pose considerable barriers to 21st century teaching and learning, including cross-border online education.

Considering that licensing will never be a wholly adequate solution to provide access to copyrighted works for educational purposes, the EU should work toward developing an exception or limitation to copyright for educational purposes that meets the following requirements: it should be able to address local and cross-border education needs; it should be mandatory; it should be neutral with regard to media type, format, and technology; it should be flexible; and it should cover all necessary uses provided they are in accordance with fair practice.

The post Policy paper #11 on leveraging copyright in support of education appeared first on COMMUNIA Association.

Licensing alone will not secure user rights

Culture, education and science require a “breathing space” within the copyright system. In this space, secured by exceptions and limitations, we learn, create art, appreciate culture and conduct research. It is also in this space that public institutions can fulfill their missions, to the benefit of the society. User rights are an essential part of a balanced copyright system, secured by a social contract between rights owners and users.

Public Domain and user freedoms

A wealth of our knowledge and culture is not proprietary, but shared as a common resource. It constitutes the Public Domain ­ content and information that is free from any copyright protection.

Just as essential for a healthy Public Domain are rules that enable individuals and institutions to freely use works still under the protection of copyright. T hese represent the “breathing space” of our current culture and knowledge, ensuring that copyright protection does not interfere with specific requirements, values and public interest of the society and the voluntary choices of authors.

Among these regulations, a crucial role is played by exceptions and limitations to copyright, which ensure a set of usage rights. It is from this perspective, of a broadly understood Public Domain, that we look at key copyright related challenges.

Licenses are not enough for Europe

Licensing-based solutions, which are a result of self-regulation by market actors, are often proposed by the industry as the optimal mechanism for regulating content circulation in the digital environment. Yet licensing can neither provide the necessary balance between rights owners and users nor provide solutions in situations where there are insufficient incentives for rights holders to license.

In 2013, the European Commission conducted the “Licenses for Europe” structured dialogue. Licensing – and associated technological solutions – was seen as the sole and sufficient solution for copyright to “stay fit for purpose in this new digital context”. Yet ten months of meetings have largely failed to identify any solutions which can be backed by all, or even the majority of, stakeholders involved. Ten pledges were made unilaterally, without the support of public institutions and civic actors.

These pledges hardly amounted to even a minimal reform portfolio. Even worse, licensing solutions were ­ and are until today ­ commonly raised in order to block more progressive reforms. While licensing­based solutions were being debated, studies requested by the EC have shown that a new balance between the rights of creators and the rights of users is both necessary and possible.

The EU Commission’s public consultation on a review of the EU copyright rules has shown a clear demand from individual and institutional users for extending and harmonising user rights in Europe. These results can only be achieved through copyright reform at the European level. Self­regulation will not provide expected results if it ignores expectations and needs of users. A balancing of copyright cannot be achieved through a “licensing only” approach.

Exceptions and limitations are not damages!

In the ongoing debate, rights owners’ and creators’ organisations portray exceptions and limitations as harmful for cultural creators. Recently, in an open letter to MEP Reda, CISAC described exceptions and limitations as a source of damages to “ our lives, the lives of our families and the diversity and vibrancy of our culture”. Instead, “ simple licensing processes” are mentioned as a solution.

Exceptions and limitations are not damaging to rights owners and never have been in the modern copyright regime. This is ensured, under the Berne Convention, TRIPS and the EU copyright directive, by the three­step test. The three­step test ensures that each individual exception does ‘not conflict with a normal exploitation of the work or other subject­matter and do[es] not unreasonably prejudice the legitimate interests of the rightholder’. In many cases exceptions and limitations are tied to some form of remuneration that can constitute an important source of income for many creators.

With its letter CISAC ignores the social and economic value of public interest use of content ­ by libraries, schools, heritage institutions or research centers. It ignores the fact that creators themselves benefit from these rules ­ for example for quoting, creating parodies or teaching in art schools.

This one­sided position is not acceptable and contradictory to the European approach to copyright that has a long tradition of reconciling the legitimate interests of rights holders with the interests of users, public institutions and society at large. Uses covered by exceptions and limitations for public use should be supported as vital elements of our culture ­ from which creators and rights holders benefit as much as any other member of the society.

Exceptions and limitations re­imagined

In response to ongoing revisions of copyright, it has been suggested that licensing makes reform unnecessary. The success of free licensing, such as that promoted by Creative Commons, is sometimes provided as proof. This is certainly not the case. Any license is just a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators or owners make a conscious decision to affirmatively license rights to users. And the success and importance of Creative Commons proves the demand for legal “breathing spaces” and flexible solutions for rights owners.

The following four cases demonstrate situations where licensing is not enough to achieve a reasonable balance between the interests of creators and society as a whole. In all of these cases, clear legislative solutions exist that would provide this balance without harming the interests of rights holders.

• The collections of cultural heritage institutions contain large numbers of in­copyright works that are out of commerce and are not actively managed by their rights holders anymore. This means that clearing rights (obtaining licenses) to make them available online is extremely difficult and resource­consuming and as a result large parts of Europe’s rich cultural heritage remain inaccessible online. The social and cultural value of these works can easily be unlocked by expanding the existing exceptions benefiting cultural heritage institutions to allow them to make out of commerce work in their collections available online.
• In Poland, despite a relatively broad exception for teaching in schools, educators are often uncertain about legality of their activities. Media education, extracurricular film clubs for students are encouraged by the educational system, but ambiguous from a copyright perspective. Licensing solutions provided to schools by commercial companies could spell an additional cost of millions of Euros to the national education system. The matter could be solved by an exception in line with the broadest standard set by InfoSoc, harmonised across Europe.
• In countries without a freedom of panorama exception such as Belgium or France, citizens infringe rights on a daily basis with every selfie they take in front of a monument. No licensing pledge will create a practical solution allowing amateur photographers to clear rights before posting pictures with public artworks on the web. Certainty of acting within the scope of law can be provided to every smartphone user by a Europe-­wide exception providing freedom of panorama.
• Librarians working with online catalogs fall within a grey zone when they add book and film covers to their databases. Uses of such artworks are covered by exceptions in analog form and for traditional catalogs, stacked in library buildings. The same use becomes infringing when shifted online. Licensing cannot solve this issue as many of the works in question are not actively managed by their rights holders anymore. A flexible open norm would allow our copyright system to adapt to adopt more swiftly to new uses which do not interfere with the ability of rights holders to exploit their works.

The scope and shape of the exclusive rights granted by copyright law need to be reviewed today to ensure maximum benefit for all stakeholders. The current scope of exceptions and limitations has been defined in the Information Society Directive at a time when the internet was still a novelty and social media or smartphones were unheard of. After fifteen years, the existing legal frameworks is no longer fit to provide a proper balance between rights owners’ and users’ rights, especially in the digital, online environment. A re­imagined, harmonised set of clear and strong exceptions and limitations should be a key element of any proposal for copyright reform.

The post Policy paper #10 on the importance of exceptions and limitations for a balanced copyright policy. appeared first on COMMUNIA Association.

The mission of the COMMUNIA Association is to educate about, advocate for, offer expertise and research about the public domain in the digital age within society and with policy-makers.

It draws on our Progressive Agenda for the Digital Public Domain and from the 14 COMMUNIA policy recommendations. Most of these policy recommendations deal directly or indirectly with aspects of the existing (EU) copyright framework.

In general COMMUNIA advocates for policies that expand the scope of the public domain and make more certain the reuse rights of works in the public domain. COMMUNIA does not seek to abolish exclusive copyrights, but to limit their scope to sensible proportions that do not place unnecessary restrictions on access to and use of works and other subject matter that qualifies for protection under copyright and similar legal regimes.

COMMUNIA takes the public domain as a point of departure for its analysis of copyright policy. Our definition of the public domain has been codified in the Public Domain Manifesto that we authored and published in 2011 and that has been signed by more than 1500 organisations and individuals. The Public Domain Manifesto establishes a broad definition of the public domain that includes works that are not protected by copyright (because they have never been protected or because copyright protection has expired), as well as use rights created by open licensing practices and limitations and exceptions to copyright.

There are three elements of our definition of the public domain that are relevant in the discussion about the review of the EU copyright rules:

• Exclusive rights should be limited. The temporal nature of copyright is an important element of all copyright systems. While the duration of the term of protection has been radically expanded in the 20th century, a review of the copyright rules provides the opportunity to advocate for a reduction of the term of protection (aligned with COMMUNIA policy recommendation #1) and the introduction of formalities (aligned with COMMUNIA policy recommendation #8). Both issues were addressed with questions as part of the public consultation undertaken by the European Commission in 2013/14.

• The public domain should not be eroded by legal or technical means. The fact that certain works do not qualify for copyright protection because they belong to an essential commons of information that is not covered by copyright is relevant both in the field of public sector information, and also regarding the digitization of public domain works (which should not generate new exclusive rights). In addition, the European sui generis database right needs to be abolished as it undermines this principle. These issues have not been addressed by the public consultation, but they should be on the agenda.

• Limitations and exceptions to copyright should continue playing their role of adapting copyright to technological changes. The fact that limitations and exceptions to copyright provide an essential breathing space for the system to work will be at the core of the discussions about the review of the copyright rules. This is evident from the Commission’s consultation, and also from the fact that many exceptions are outdated and that the overall system of limitations and exceptions lacks harmonisation across the member states of the EU.

COMMUNIA Policy Positions

Based on these principles, we have defined a list of issues for which COMMUNIA should advocate with regard to the review of the EU copyright framework:

1. The definition of a legal status for the public domain. The European copyright framework needs to include a positive definition of the public domain;
2. The recognition of the legal validity of voluntary dedication of works to the public domain by their authors;
3. The reduction of the term of copyright protection to the minimum level required by the Berne Convention (50 years after the death of the author);
4. The introduction of incentives for rights holders to register their works;
5. The opposition of the introduction of new ancillary copyright rights that further restrict access to information and culture, and the abolishing existing legal regimes that have the same effect;
6. Harmonization of the rules applying to the protection of unoriginal photography (and their reproduction), to ensure that the mere reproduction of public domain works does not create new exclusive rights;
7. The development of clear rules for researchers who must be able to read and analyse all information that is available to them, whether through text and data mining or otherwise (“the right to read is the right to mine”);
8. Reduction of the remaining barriers for re-use of public sector information by exempting works produced by the public sector from copyright protection;
9. Full harmonization of all current limitations and exceptions (as defined by the InfoSoc Directive) to copyright across the EU, so that they are made mandatory and uniformly applicable to all users in all EU member states;
10. Inclusion of a new open provision that ensures flexibility in the interpretation of copyright limitations and exceptions with regard to new technologies and social practices;
11. Expansion and adaptation of limitations and exceptions to grant users more freedom in accessing and reusing protected works, and to permit public institutions to fully carry out their missions in the online environment. This includes but is not limited to increasing and expanding exceptions benefiting:
    1. Individual users who must be enabled to make transformative uses and to quote/sample from materials other than texts;
    2. Educational institutions which must be provided the flexibility needed to include protected works in online offers and must be allowed to provide such content to individuals not enrolled in formal educational settings;
    3. Cultural heritage institutions which must be empowered to digitize their collections and make them available online;
    4. Users with disabilities who must be enable to benefit to the fullest extent from technological advances that allow them to access and use information and culture that has been up until now inaccessible to them.
12. Preservation of the current liability framework applicable to intermediaries, which will ensure that the Internet serves as an open publishing platform that enables citizens to publish, share and interact with culture in unprecedented ways.

The post Policy paper #9 on the review of the EU copyright laws appeared first on COMMUNIA Association.

Summary

In 2013 the European Union amended the Directive on Public Sector Information, establishing the principle that all available information produced and collected by public sector institutions must be made available for reuse under open terms and conditions. The amended Directive also brings publicly funded libraries, museums and archives into its scope. These new rules on reuse of heritage materials, treated as public sector information (PSI), attempt for the first time to define a general framework for sharing cultural heritage information all around Europe. In this paper we argue that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. These concerns center on how the directive interacts with copyright legislation. The paper recommends that in order to contribute to the opening up of cultural heritage resources, Member States should ensure that all qualifying documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive. Member States should also implement the Directive in a way that does not encourage or require institutions to charge for the reuse of works that they make available for reuse. For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions that have these works in their collections, Member States should encourage the use of Open Definition­compliant licenses (This paper is the second in a series focussing on cultural heritage institutions and the PSI directive. The previous policy paper on on digitization agreements for Public Domain works can be found here)

Introduction

A decade ago, the European Union established rules for the re­use of public sector information in Directive 2003/98/EC on the re­use of public sector information (2003 Directive), which went into effect on 31 December 2003. It was designed to encourage EU Member States to make information and resources that they produce and collect reusable to the greatest possible extent. Re­use rules have been devised as complementary to the citizens’ rights of access to public sector information, which remains regulated by national law. However,while such an access is often seen as a basic civil right, re­use is considered an economic right. In fact, beyond fuelling the innovation and creativity that stimulate economic growth, open public sector information also empowers citizens, thereby enhancing participatory democracy and promoting transparent, accountable and more efficient government. From this perspective, public sector information, when re­used, becomes the basis for added economic, civic, and social value, as recognized by the same Commission.

The 2003 Directive included in its scope information held only by some Public Sector Bodies (PSB) such as ministries, states agencies, municipalities and organisations funded for the most part by, or under the control of, public authorities. It explicitly excluded cultural, scientific and educational institutions and their resources¹.

Re­use of cultural heritage resources

In June 2013 the 2003 Directive was amended by Directive 2013/37/EU (2013 Directive)² which places museums, libraries (including university libraries) and archives within its scope. However, information held by institutions such as orchestras, operas, ballets and theaters are not included in the scope of the Directive³, and the same holds true for Public Broadcasting Organisations even though they tend to have sizable archives⁴.

While some of the rules for cultural heritage institutions deviate from the general PSI re­use rules, the rationale for including these institutions under the new consolidated PSI Directive is similar: cultural heritage resources are seen as objects on which added value can be built for commercial gain and the public benefit. These new rules on re­use of heritage materials, treated as public sector information, attempt for the first time to define a general framework for sharing cultural heritage information all around Europe⁵.

The 2013 Directive introduces a number of new features, one of which is the important “re­useable by default” rule. This rule provides that all the information already accessible under national laws will also be considered re­usable⁶.

Cultural heritage institutions may take advantage of a specific exception to this general rule and they may choose whether or not to make documents for which they hold intellectual property rights available for re­use⁷. However, when they choose to do so, documents must be re­usable for commercial or non­commercial purposes in accordance with the conditions established by the Directive for other documents held by cultural heritage institutions.

Cultural heritage resources are already being shared by cultural heritage institutions in all EU Member States⁸. However, this practice depends on the policies, funds, resources and efforts of a given institution. In this regard, the implementation of the new 2013 Directive is not expected to cause any revolutionary changes. Yet, if implemented correctly, this new Directive can lead to the establishment of Europe­wide standard rules for the availability of cultural resources, and increase the scale at which cultural heritage information is shared. On the other hand, an implementation contrary to the spirit of the Directive could lead to the creation of unnecessary hurdles to the re­use of public sector information, which would frustrate the very principle that inspired both the 2003 and 2013 Directives.

Charging for re­use

The consolidated Directive establishes a number of conditions that apply to the re­use of documents falling within its scope, such as the principle of non­discrimination and rules related to charging for re­use of documents. In principle, the consolidated Directive limits charging for re­use to cover only “marginal costs” – the costs necessary to make the resources available. However, some public institutions are “required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks or of the costs relating to the collection, production, reproduction and dissemination of certain documents made available for re­use,” and thus are permitted to charge above the marginal cost⁹.

The Directive states that libraries, museums and archives are explicitly allowed to charge above marginal cost, but charges “should not exceed the cost of collection, production, reproduction, dissemination, preservation and rights clearance, together with a reasonable return on investment.” In the past, the allowed level of such return on investment has been ambiguous. The EU legislator indicates that “the prices charged by the private sector for the re­use of identical or similar documents could be considered when calculating a reasonable return on investment”. This means that the Directive allows cultural institutions to make profit by supplying and allowing re­use of their resources¹⁰.

Third party intellectual property rights – limitations of the scope of the Directive

The Directive limits the type of information that falls within its scope in relation to the existence of intellectual and industrial property rights. A first case of exclusion from the Directive’s scope relates to documents for which third parties (meaning not the cultural heritage institution) hold intellectual property rights such as copyright, related or neighbouring rights as well as sui generis forms of protection¹¹. Thus, for works covered by third party intellectual property rights there is no re­use obligation.

A second case of exclusion relates to documents protected by “industrial property rights” defined as patents, registered designs and trademarks. In this case the exclusion is absolute, as it operates irrespective of the right holder. In other words, no obligation to allow re­use applies when a document is covered by an industrial property right ­­including those cases where the right holder is the library or museum itself.

As a result of the aforementioned cases of exclusion, documents held by cultural heritage institutions are within the scope of the Directive only if: (i) they are in the public domain, either because they were never protected by copyright or because copyright has expired; or (ii) the cultural heritage institution is the original right holder or assignee of the intellectual property rights.

However, the reuse obligations deriving from these two situations are not the same. For (i) documents that are in the public domain the general rule applies: documents must be re­usable if they are generally accessible (Art. 3(1)). In the different case of (ii) documents for which the institution holds the copyright and/or related rights the derogatory rule of Art. 3(2) applies: the institution can decide whether it wants to allow re­use or not. Nonetheless, if re­use is allowed it must follow the general requirements of transparency and non­discrimination, as well as the specific limits on the charging policy (see below).

Consequently, documents whose intellectual property rights belong to third parties, but a specific copy thereof is held by a cultural heritage institution are excluded from the Directive, as confirmed by Recital 22 and Art. 1(b) of the consolidated version, and accordingly there is no obligation to allow re­use.

Unfortunately, Recital 9 of the 2013 Directive introduces some uncertainty¹². It might be interpreted as implying that any documents held by a library but originally owned by a third party and whose term of protection has not yet expired is a document for which third parties hold an intellectual property right, and therefore is excluded from the scope of the Directive. This reading seems contrary to the provisions established in Article 3 (consolidated version) and contradicts the overall objectives and principles enshrined in the Directive (to open­up public knowledge for re­use). It would further create an unjustified limit to the re­use of public information in clear contradiction with the legislative history and legal background of the Directive (both versions)¹³.

Given this potential for confusion, it is important that Member States implement the 2013 Directive in line with the rules laid down in Article 3(2) (consolidated version). This means that all documents for which the institution holds the relevant intellectual property rights are subject to the discretionary decision to allow re­use. If re­use is granted then it will be subject to the other conditions established by the consolidated Directive. This also applies to documents that have been acquired by public institutions from third parties, provided that the intellectual property rights have also been transferred to the institution (or other similar agreement to the same effect has been made)¹⁴. Recital 9 (2013 Directive) should be interpreted as simply meaning that documents are outside the scope of the directive when the cultural heritage institution holds a document for which it does not simultaneously hold the intellectual property rights, including the situation where the right holder is unknown¹⁵.

Public domain and public sector information

Overall, the Directive is in line with the current trends in regard to digitization of cultural resources held by public institutions. Oftentimes these digitization projects focus on works in the public domain and works for which institutions own the relevant intellectual property rights. For both financial and practical reasons, cultural institutions have been mainly digitizing out­of­copyright works. While the Directive will not change this situation, it could produce a negative effect on the availability of public domain works to the general public.

The current best practice with regard to digitization of public domain materials by cultural heritage institutions is to make these materials available for free and without restrictions on re­use¹⁶. The digitization of public domain works has been an important driver for the nascent open data movement in the cultural heritage sector.

From a copyright perspective, cultural heritage institutions that decide to make public domain works available under conditions that limit or regulate their re­use would frustrate the inner balance between public and private interests supposedly created by copyright law. Again, the Directive does not, and cannot, change this inner balance of copyright law. Yet a superficial extension of the Directive to works held by cultural heritage institutions would produce the unwanted effect of introducing new barriers­­mainly financial ones. Charging will affect the re­use of public domain works and consequently damage the balance established by the temporal nature of copyright.

As outlined above, the Directive provides cultural heritage institutions with the ability to charge for the re­use of works that they make available for re­use. While this may be a useful strategy for some institutions to recover a portion of their costs, there are many cases where charging for re­use will limit access to and re­use of the resources in question¹⁷.

No charging requirements

Accordingly, national legislatures implementing the Directive should be careful not to encourage or require institutions to charge for the re­use of works that they make available for re­use¹⁸. Adding charging requirements (or encouraging them) could undermine the public domain, limit online access to and re­use of cultural heritage resources, and damage the nascent open culture data ecosystem¹⁹

When applied to cultural heritage resources that have entered into the public domain such requirements would have the effect of prolonging the access limitation created by the duration of copyright protection­­already considered to be too long by many stakeholders. These charging requirements, if implemented improperly, have the potential to undermine the overall objective of the Directive (increasing re­use of resources held by public institutions).

Works made available for re­use by cultural heritage institutions should be available freely, since any fee for re­use, even a fee to cover marginal costs, will severely limit the scale of re­use. And such fees are very unlikely to ever provide a substantial contribution to institutional budgets.

Licensing

The recitals of the 2013 Directive and a recently published “Guidelines on recommended standard licences, datasets and charging for re­use of documents” put a lot of emphasis on the use of standard open licenses. Open licenses, such as the Creative Commons licenses, build on copyright and as a result their attachment to works that are out of copyright produces no effects. Accordingly, open licenses are not usually enforceable when applied to material that is in the public domain; however, the arguments in favor of standard licenses apply equally to standard tools for marking public domain works, such as the Public Domain Mark and the CC0 Public Domain Dedication²⁰.

Open licenses (especially those that comply with the Open Definition) should be used not only when making available documents but also metadata for which the copyright lies with the cultural heritage institution in question ­­at least in the limited cases where these metadata can attract copyright (such as long form descriptions of cultural heritage objects).²¹

In addition to the Guidelines published by the Commission, Member States are well advised to stress the importance of these standard legal tools when implementing the Directive.

Non­discrimination

The Directive requires that all conditions attached to the re­use of documents shall be non­discriminatory for comparable categories of re­use and that the re­use shall be open to all potential actors in the market. To fully realise the potential of open data and to stimulate the development of new services, re­use should be open to all on equal footing. This means that institutions cannot grant access to certain categories of users but refuse it to others, or enter into exclusive agreements with selected partners. However, the Directive contains one important exception that allows exclusive contracts for cultural heritage institutions engaging in digitization projects. The Directive specifies that such agreements should be limited in time and as short as possible, with a maximum duration of 10 years²².

Recommendations for Implementation by Member States

As we have explained above, the ongoing implementation process in the Member States poses a number of potential pitfalls. If Member States are not careful, the implementation of the 2013 Directive could do more harm than good to the availability of cultural resources held by Europe’s cultural heritage institutions. Member States implementing the Directive are invited to pay utmost attention to the following three main issues:

1. Member States should implement the 2013 Directive in line with the principles established by Article 3 (consolidated version) and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislation.
2. Member States must not implement the Directive in such a way that encourages or requires institutions to charge for the re­use of works that they make available for re­use. The decision to charge for re­use sould be up to the individual institutions. If this is not the case the implementation of the 2013 Directive will limit access to and re­use of the public domain.
3. For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions that have these works in their collections, Member States should encourage the use of Open Definition­compliant licenses, such as the Creative Commons licenses or the Creative Commons Zero mechanism. This applies in particular to metadata produced by cultural heritage institutions, in the limited cases where these metadata can attract copyright.

Endnotes

1. See Article 2.1 (f) which states that ‘this directive shall not apply to … documents held by cultural establishments, such as museums, libraries, archives, orchestras, operas, ballets and theatres’.
2. Directive 2013/37/EU amending Directive 2003/98/EC on the re­use of public sector information
3. Article 2.1 (f) of the consolidated directive now states that ‘this directive shall not apply to … documents
   held by cultural establishments other than libraries, museums and archives’
4. While the scope of cultural institutions covered by the new regulation seems quite clear, doubts arise in the case of institutions that are not explicitly referred to as a libraries, archives or museums, but that accumulate cultural resources. For example, the Polish National Filmotheque is a film archive, but formally not defined as such. Since the scope of the Directive is to increase the availability of heritage collections, it should be interpreted as to include those institutions that despite a different nomen carry out the same function.
5. In addition to the 28 Member States the directive is also applicable to the members of the European Economic Area and can be expected to have normative influence on countries that want to join the EU.
6. See Art. 3(1) consolidated version.
7. See Art. 3(2) of the consolidated version.
8. Europeana.eu alone brings together more than 30 million objects from more than 2500 institutions from all 28 Member States.
9. See Art. 6 consolidated version.
10. This is further explained in the recent “Commission notice — Guidelines on recommended standard licences, datasets and charging for the re­use of documents” it is pointed that return on investment can be understood as a percentage allowing for recovery of the cost of capital and inclusion of a real rate of return (profit). Guidelines refer also to comparing prices to commercial players in a comparable market and conclude that since public cultural institutions do not bear the business risk the way the private sector does, a “reasonable” rate of return would be “slightly above the current cost of capital but well below the average rate of return for commercial players, which is likely to be much higher due to the higher level of risk incurred”.
11. Rights covered include performers’ performances, sound recordings/phonograms, broadcasts of broadcasting organizations and first fixations of films, as well as the sui generis database right and other related rights created or allowed by the EU legal framework (such as scientific and critical editions, non original photographs, published editions, typographical arrangements, etc).
12. “Taking into account Union law and the international obligations of Member States and of the Union, particularly under the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade­Related Aspects of Intellectual Property Rights, documents for which third parties hold intellectual property rights should be excluded from the scope of Directive 2003/98/EC. If a third party was the initial owner of the intellectual property rights for a document held by libraries, including university libraries, museums and archives and the term of protection of those rights has not expired, that document should, for the purpose of this Directive, be considered as a document for which third parties hold intellectual property rights”.
13. Recital 9 speaks of third party rights insisting on documents held (not owned) by university libraries, archivesormuseums.Thereferenceshouldbeintendedtorefer toworksprotectedbyacopyrightowned by a third party, and for which the library or museum has only acquired the physical ownership of a copy, or in any case a mere right to display or lend the document. Cases where the cultural heritage institution does not just hold the document but owns it too ­ meaning it is the copyright holder ­ should therefore be excluded by the scenario of Recital 9 (2013 Directive).
14. This view seems supported by the legislative history of that provision. Nowhere in the different drafts that lead to the 2013 Directive is suggested a reading or interpretation that would significantly derogate from the overall scope of the Directive. In particular, previous versions of current Recital 9 of the 2013 Directive, set forth the principle of “strict necessity” which seems to better explain the real function of said Recital. Recital 7 of the Explanatory Memorandum (which corresponds to current Recital 9 of the 2013 Directive) had an opening text which is reported for the convenience of the reader: “Directive 2003/98/EC should therefore lay down a clear obligation for Member States to make all generally available documents re­usable. As it constitutes a limitation to the intellectual property rights held by the authors of the documents, the scope of such a link between the right of access and the right of use should be narrowed to what is strictly necessary to reach the objectives pursued by its introduction. In this respect, taking into account the Union legislation and Member States’ and Union’s international obligations, notably under the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade­Related Aspects of Intellectual Property Rights (the TRIPS Agreement), documents on which third parties …”.
15. Orphan works are therefore excluded from the general re­use rule. Orphan works are now object of the specific provisions contained in Directive 2012/28/EC on certain permitted uses of orphan works.
16. See Europeana’s Public Domain Charter or the image re­use policy of the Rijksmuseum.
17. See for example the ‘Yellow Milkmaid’ white paper published by Europeana in 2011 or the above mentioned image re­use policy of the Rijksmuseum.
18. An existing example of Public Sector Information legislation that encourages institutions to charge for re­use of public domain works that they make available is the French law on access and reuse of public sector information, which has the effect that public domain works available via portals like Gallica cannot be used for commercial purposes without obtaining a license.
19. It should be noted that the Directive defines maximum level of charges and that the first implementations of the amended Directive into national laws often define lower limits
20. According to the Commission’s Guidelines, “open standard licenc es, for example the most recent Creative Commons (CC) licences (version 4.0), could allow the re­use of PSI without the need to develop and update custom­made licences at national or sub­national level. Of these, the CC0 Public Domain Dedication is of particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility for re­users and reduces the complicat ions associated with handling numerous licences, with possibly conflicting provisions.”
21. Metadata usually represent factual information such as titles, names, and dates. The standard for copyrightability in the entire European Union for any category of works is the “author’s own intellectual creation” which is present when the author makes free and creative choices and puts his or her personal stamp in the work. When an output is constrained by technical and factual rules, there is little to no space for free and creative choices, reducing the possibility of protected works only to those metadata that can show personal, free and creative choices. See also Dr. Till Kreutzer,’Validity of the Creative Commons Zero 1.0 Universal Public Domain Dedication and its usability for bibliographic metadata from the perspective of German Copyright Law‘, (2011) for a discussion about the protectability of metadata published by cultural heritage institutions
22. There is however an exception to this rule: “In the case when the period exceeds 10 years, its duration shall be subject to review during the 11th year and, if applicable, every seven years thereafter.” wich theoretically allows for exclusive contracts with an indefinite duration.

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COMMUNIA policy paper on digitization agreements for Public Domain works: Recommendations for cultural heritage institutions

The aim of this policy paper is to make policy recommendations for cultural institutions to preserve the Public Domain when using digitization services provided by private entities. This becomes particularly relevant in the context of the 2013 Public Sector Information (PSI) Directive which adds Museums, Libraries and Archives in the list of Public Sector Bodies (PSBs) that have to make their information reusable.

The Public Domain ensures the free dissemination of knowledge and provides everyone with the potential to access and create new works based on previous works. Thus, all Public Domain works should be free for everyone to use and reuse. Yet, as many cultural heritage institutions are entering into contractual agreements with third parties for the digitization of Public Domain works, there are serious concerns regarding the conditions of access, use and reuse of the resulting digitized copies.

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

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

A work in the Public Domain should have the same legal properties, regardless of the format or medium it is in. Hence, works that are in the Public Domain in analog form [should] continue to be in the Public Domain once they have been digitised (see the Europeana Public Domain Charter, Principle #2, and COMMUNIA Public Domain Manifesto, Recommendation #5). Contractual agreements as regards the digitization of Public Domain works should acknowledge and respect the fundamental properties of these works, and not attempt to subvert Public Domain principles through contract and other legal mechanisms.

To ensure the broadest availability and long­term accessibility of Public Domain works, their digital copies should be made available to the public in a format and medium allowing for easy identification, retrieval and modification, while ensuring the maximum interoperability of these works. The use of metadata and open formats constitutes an important requirement to ensure that the value of the Public Domain is properly understood and that the works belonging to the Public Domain will always remain freely (re)usable.

In view of this, we make the following recommendations:

No copyright protection

• over the digitized version: All parties to the partnership should expressly state that they do not claim copyright nor sui generis rights in the digitized copies of the Public Domain material.
  • The digitized version should be marked as in the Public Domain using a tool such as the Creative Commons Public Domain Mark, or, alternatively, if digitization itself gave rise to new related rights, these should be waived by applying a Public Domain dedication tool such as CC0.
  • Up­to­date metadata and the database (if protected by sui generis rights) should be made available and dedicated to the Public Domain using tools such as the CC0 Public Domain Dedication following the model of Europeana, the Digital Public Library of America, Harvard Library and the British Library.
• for newly published works: In countries where copyright law grants an additional term of protection to the publishers of Public Domain works that have never been published before, the rights holder should dedicate the work to the Public Domain by means of tools such as the CC0 Public Domain Dedication.

No contractual restrictions

• Access and reuse to Public Domain works should be unrestricted, both on premises and on the Internet for any type of use and reuse, including for commercial purposes.
• No exclusive agreements should be made between the cultural institution and the commercial vendor that would preclude another vendor or institution from digitizing or distributing the same Public Domain material.

Openness & Transparency

• The institution should use standardized, open technological formats and request the contractor to transfer digitized material and metadata in standardized open technological formats.
• Bidders’ offers should be made publicly available. Transparency should prevail in the decision­making process affecting public access to our common cultural heritage collections.

The COMMUNIA Association calls for cultural institutions, such as libraries, archives and museums to observe the following guidelines, and to promote them in their negotiations with contractors, donors and legal owners of materials.

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COMMUNIA policy paper on the Directive proposal on Collective Management of Copyright

The mission of the COMMUNIA Association is to foster, strengthen, and enrich the Public Domain in the Digital Environment. As part of this mission, the COMMUNIA Association is advocating for a modern, flexible and transparent exercise and management of copyright and related rights. The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.

This policy paper aims at providing an analysis on the Commission’s Proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market (COM(2012) 372/2) in light of the issues defended by the COMMUNIA Association on the Digital Public Domain.

Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This draft legislation intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and access to knowledge should be a priority of policy-making.

While large parts of the proposed directive can be seen as intra-industry regulation that is relevant to a limited number of stakeholders, these provisions impact the overall copyright framework. It is therefore extremely important that the proposal also reflects the interests of the general public. Given the increasing technological possibilities for individual rights management, we need a well functioning, transparent and flexible collective rights management system that neither hinders rights licensing and innovation, nor needlessly limits the exercise of rights by individual rights holders.

In the remainder of this document, we want to highlight two specific issues that the proposed directive fails to address (sufficiently). The first one concerns the transparency of information about the members of CMOs and the repertoires represented by them. The second one addresses the incompatibility between collective management of rights and individual licensing arrangements (such as open content licenses) existing in some sectors.

Transparency

Our number one concern with the draft directive is that the proposed measures to increase transparency are not sufficient. This concern is primarily aimed at the measures intended to increase the transparency with regards to the information about CMOs membership and the repertoire. The relevant article of the proposal is Article 18 (‘Information provided to rightholders, members, other collecting societies and users on request’).

One of the key problems of the current copyright system is the lack of easily identifiable information about the rights status of works protected by copyright and related rights. In the absence of general rights registries, it becomes essential that information about rights holders can be accessed efficiently.

Article 18 (1) of the proposed directive deals with access to this type of information:

Member States shall ensure that a collecting society makes the following information available at the request of any rightholder whose rights it represents, any collecting society on whose behalf it manages rights under a representation agreement or any user, by electronic means, without undue delay:

(a) standard licensing contracts and applicable tariffs;
(b) the repertoire and rights it manages and the Member States covered;
(c) a list of representation agreements it has entered into, including information on other collecting societies involved, the repertoire represented and the territorial scope covered by any such agreement.

In addition, a collecting society shall make available at the request of any rightholder or any collecting society, any information on works for which one or more rightholders have not been identified including, where available, the title of the work, the name of the author, the name of the publisher and any other relevant information available which could be necessary to identify the rightholders.

In fact, the group of parties that stand to benefit from access to this information is much wider than those listed in Article 18. It includes anyone wishing to provide services or to work with material protected by copyright or related rights. In many cases, such users will not have an existing business relationship with the CMOs in question (and thus not qualify as ‘users’ in the traditional sense).

Examples of this include developers of new content delivery platforms and services who shall be able to determine how many and what type of rights holders they need to interact with in order to secure permission for such services. Obtaining this information under clear rules of transparency is thus essential for innovation, and namely for wide-scale digitisation initiatives (like Europeana).

Another example are publicly funded memory institutions. For memory institutions that want to provide online access to their collections, it is essential to be able to discern if whether works in their collections are administered by one or more collecting societies or are not part of the CMOs’ repertoire. Based on this information, they can then develop a strategy for clearing rights that may or may not2 involve obtaining a license for the repertoire under collective management.

It should be noted that opening up this sort of information is not only good for new innovation, but is in the express interest of supporting the underlying rights holders in getting their content discovered, viewed, distributed (and potentially paid for).

Under the current proposal, CMOs would have no obligation to provide such essential information to these users (Art. 18.2), thereby keeping them outside the existing system and placing them at disadvantage vis-à-vis other parties and when negotiating with CMOs.

More generally, the legislator should give incentives for CMOs to provide accurate repertory information. In particular, CMOs shall ensure that the information in respect of the works whose term of protection terminates – thus “falling” into the Public Domain – is accurate and regularly updated, so that Public Domain works are duly exempted from licensing. CMOs should not be able to enforce claims if they cannot show that the underlying works are registered in their databases as protected works belonging to their repertoire.

The exclusion of potential users from the obligation of CMOs to provide this type of information also seems to contradict another recent policy instrument adopted by the European Union. The Directive on certain permitted uses of orphan works (2012/28/EU) contains an annex that lists the sources that need to be consulted by an organization carrying out an ‘diligent search’. This annex makes frequent references to ‘the databases of relevant collecting societies’. While acknowledging the need for tools listing works and the corresponding rights, it is surprising that the Commission does not follow up on these provisions in an instrument aimed at improving collective management. It seems that the opportunity to outline the responsibility of CMOs for the administration of such information tools for the benefit of all kinds of stakeholders has been overlooked.

Given these shortcomings, the directive proposal needs to be amended so that CMOs have the obligation to provide access to the information specified in Article 18.2 to anyone (or at least to any potential users). At the same time, we propose that the language with regards to the means of access (Art. 18.1: ‘by electronic means, without undue delay’) be modified to require access via publicly accessible and searchable interfaces.

From COMMUNIA’s perspective, the general availability of information about membership and represented repertoire is not only essential in the (very real) examples outlined above, but should also be seen as a step in the direction of a more transparent rights registry infrastructure is that should be considered as an essential mean of a well functioning trans-national copyright system, at the European level and worldwide.

Digital uses of copyrighted resources need simplified authorisation models that should be enabled through transparent information mechanisms like works registries and common information technology infrastructures administered by CMOs. This purpose of simplification should also be achieved through collective rights management models offering the greatest level of flexibility and legal certainty. The increase of wide-scale digital uses calls for “blanket licenses” having the largest and most stable CMOs repertoire, which can be supported by extended collective licensing models. The directive proposal fails to duly address these issues, although they were raised in the impact assessment (notably Option B4).

Nevertheless, the provisions of the draft Directive on multi-territorial licensing and the “passport” option chosen by the Commission go into the right direction towards the simplification of copyright management and licensing. However, in the absence of satisfactory transparency rules, it remains to be seen how the “passport entities” will effectively enable multi-territory licenses with a sufficient level of legal certainty.

Collective Management and Open Content Licenses

Our second concern with the proposed directive is that it fails to address existing incompatibilities between the collective management of rights and open content licensing. While collective management tends to oppose to individual licensing approaches, there are some sectors where CMOs can effectively prevent their members from using open content licenses such as Creative Commons licenses. With a small number of exceptions representing authors of musical works prevent their members from making works available under open content licenses. They are in a position to do so because their members are required to exclusively assign all of their rights on all of their works rights to them.

Open content licenses are a relatively new way of exercising exclusive rights with upfront authorisation of certain uses of the licensed works. They provide rightholders with powerful tools promoting access, collaboration and free distribution. Open content licenses are instrumental in massive collaborative projects (such as Wikipedia4 ), open access publishing, as well as for open educational resources, while contributing to enrich the digital Public Domain with content subject to more flexible licensing terms.

From the perspective of COMMUNIA, it is therefore desirable that collecting societies allow their members to make available some of their works under open content licenses. All authors should be free to opt for alternative rights licensing schemes, including the use of open content licenses. In so far as CMOs are in a monopolistic position thereby limiting the choice for rightholders membership, the latter shall not be limited in their freedom to opt for what they deem best for the management of their own rights.

The existence of four pilot projects between European collecting societies and Creative Commons and the fact that members of the US societies ASCAP and BMI are free to make use of open content licenses underlines that there is no fundamental incompatibility between the two systems. The proposed directive presents a timely opportunity to ensure that all European authors can make use of open content licenses in compliance with their membership to collecting societies.

While there are many possible strategies to achieve this goal, the most relevant one with respect to the existing proposal would be to modify Article 5. This provision currently gives right holders the right to authorise (and terminate such authorisation) the management of ‘rights, categories of rights or types of works and other subject matter of their choice’. By changing this language into ‘rights or categories of rights or works or types of works and other subject matter of their choice’, authors would be effectively enabled to remove some works from the collective management system. This would allow them to make these works available under an open content license of their choice, which in turn would provide CMOs with an incentive to offer more flexibility to their members that can be exercised without necessarily opting out from the collective management system.

The exclusive exercise of copyright also includes the freedom of rightholders to willfully relinquish their rights or to dedicate their works to the Public Domain (see the Creative Commons CC0 Public Domain Dedication devoted to the ‘voluntary public domain’). These voluntary relinquishments – or dedications – of rights should be taken into account in the mandates of CMOs with their members.

While some may argue that these opt-out mechanisms, allowing rightholders to choose open content licensing or to dedicate their rights to the Public Domain, could affect the aggregation and stability of the CMOs repertoire, this is precisely one more reason to outline the significance of works registration tools enabling the listing of works and of their corresponding rights.

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