We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

Another victory coming out from the recent EU copyright reform relates to the creation of an efficient pan European system that grants users full access to orphan works (Recommendation #9). The first attempt of the EU legislator to address this issue, through the Orphan Works Directive, is widely considered a failure, since the Directive only works for a small number of cinematographic works. However, the provisions on the use of out of commerce works in the DSM Directive provide a comprehensive solution for the problem of orphan works (by definition orphan works are also out of commerce and so these provisions also apply to them) (cf. Articles 8-11).

Where major advances have been made: mandatory exceptions to copyright and open access to publicly funded resources

Recommendations #3, #9, #10, #12 all asked for the creation and harmonization of exceptions and limitations to copyright, and we have seen major advances on this topic in recent years. Cultural heritage institutions now benefit from a set of mandatory exceptions regarding uses of orphan works and of out-of-commerce works, and for preservation purposes. There is a new exception for the benefit of persons who are blind, visually impaired or otherwise print-disabled, and the Commission has recently concluded a consultation on the availability of works for persons with other disabilities, which might lead to further developments in this field. The fields of education and research were also considered in the recent EU copyright reform, with the approval of new exceptions for text and data mining, and for digital and cross-border teaching activities. New mandatory exceptions for quotation, criticism, review, caricature, parody or pastiche on certain online content-sharing platforms are also part of the Article 17 package. Finally, the CJEU has recently indicated that the exceptions and limitations of the Copyright Directive that are aimed to observe fundamental freedoms might be mandatory for Member States (cf. the judgments of 29 July 2019 Funke Medien, C-469/17, para. 58; Pelham, C-476/17, para. 60; and Spiegel Online, C‐516/17, para. 43), which means that there is a possibility of further harmonization of exceptions in the coming years through judicial development.

Certainly, more progress is needed in the area of exceptions and limitations, particularly after the massive shift of education, research and cultural activities to the online environment, following the pandemic closure of institutions. Not only do we need a higher level of harmonization among Member States, but also flexibility to adapt this legal framework to rapid societal and technological changes. Therefore, our recommendation #3 to harmonize exceptions and open up the exhaustive list of user prerogatives is still highly relevant.

In the past decade, we have also seen great advancements on the issue of open access to public funded resources. Recommendations #11, #12 and #13 asked for publicly funded digitized content, research output, educational resources and public sector information to be made publicly available free from restrictions. Over the past years the idea that publicly funded resources need to be available to the public has gained traction not only among policy makers but also within the vast majority of cultural heritage and research institutions. Initiatives from public research funders have led to the increasing adoption of open access policies within the academic research sector. In 2013 the scope of application of the PSI Directive was extended to libraries, museums and archives. Also, Member States are required to ensure that documents on which those institutions hold intellectual property rights shall be re-usable for commercial or non-commercial purposes  under the Open Data Directive. This means that this set of recommendations has been partially implemented; the principle that public money should result in public access has not, however, yet been universally accepted.

Where nothing has changed: terms of protection, registration, technical protection measures, and alternative reward systems 

The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. Therefore, a decade ago, we recommended reducing the terms of copyright protection (Recommendation #1). Unfortunately the trends in the past decade have gone in the opposite direction. The proposed term extension for performers and sound recordings, which we had recommended not to be adopted (Recommendation #2), was approved by Directive 2011/77/EU. Furthermore, the rules for establishing the duration of the term of protection of individual works remain fragmented and highly complex, contrary to our Recommendation #4.

On the issue of formalities, while our Recommendation #8 to grant full copyright protection only to works that have been registered by their authors has not been implemented, it has become increasingly clear that, for the copyright system to continue to function, registration of works will become ever more important. Over the past year the EU legislator has been making a number of baby steps towards systems to reserve or claim rights. These have been mostly as a condition to expand exceptions and limitations further, with rightholders being given the right to opt out from certain permitted uses of their works if they express such intention by specific means: this is the case of some text and data mining activities, where rightholders have the right to prevent those activities provided that they expressly do so “in an appropriate manner” (cf. Article 4(4) of the DSM Directive), and it is also the case in the context of the use of out-of-commerce works by cultural heritage institutions (cf. Article 8(3) of the DSM Directive), where rightholders are allowed to opt-out through the EUIPO Out of Commerce Works Portal. Yet, the new Commission’s Intellectual Property Action Plan reveals the intention to look deeper into how “to promote the quality of copyright data and achieve a well-functioning “copyright infrastructure” (e.g. improve authoritative and updated information on right holders, terms and conditions and licensing opportunities)”.

Another area where there were barely any changes to the EU policy is the area of technological overrides of exceptions and limitations. The only improvement we have seen in the new Copyright Directive is that the beneficiaries of the new exceptions have the right to require the technical means necessary to use TPM-protected works even when the work was acquired under contract and made available across the internet (something that was not the case under the InfoSoc legislation). However, the vast majority of EU Member States do not have mechanisms in place to grant users access to TPM-protected works. This means that technical protection measures can still significantly inhibit the use of works under exceptions and limitations. In other words, it is about time for the EU lawmaker to recognize this problem and implement our Recommendation #7, allowing users to circumvent TPMs when exercising rights under exceptions or when using public domain works.

Finally, our last Recommendation (#14), advising lawmakers to switch the focus of their policies from extension of copyright protection and enforcement of rights to alternative rewards systems and cultural flat rate models has also not been implemented.  Since we have issued this recommendation we have seen massive changes in the way cultural expression and exchange are taking place online, with the emergence of subscription services for creative content and new creator cultures that rely on advertising driven platforms. Copyright plays an important role in these business models but any real solution to ensure a fairer distribution of the economic benefits of these models likely requires intervention way beyond copyright alone.

The post 10 years of COMMUNIA, a decade of copyright reform: how far did we get? appeared first on COMMUNIA Association.

What is in the public domain in analogue form is [not always] in the public domain in digital form

While at first glance it seems counterintuitive that a museum should be able to control the rights for artworks of long dead artists, such claims do have a basis in existing law. In general, for a work to be protected under copyright it needs to show “the author’s own intellectual creation.” However, there is another category of copyright-like rights (also called “related rights”) that exist in a number of EU Member States. These related rights schemes grant exclusive rights to the creators of photographic works that do not meet the originality criterion necessary to receive copyright protection (See this 2015 study by Thomas Margoni for more details). Related rights arise even when a reproduction is nothing more than an exact photographic copy of a work. Where copyright protects original artworks, these related rights protect simple copies. 

As museums have started to make works in their collections available online, the practice of relying on related rights to restrict the re-use of non-original reproductions of public domain works has become controversial. Both the Public Domain Manifesto and the Europeana Public Domain Charter demanded that what is in the public domain in analogue form must stay in the public domain in digital form (as does our own policy recommendation #5). While the overall majority of museums have always acted in the spirit of expanding the public domain, and have made reproductions of public domain works available without any restrictions on re-use, a small number of museums from Member States that allow the protection of non-original reproductions of public domain works continue to claim rights over such reproductions. 

Implementing Article 14 

Article 14 of the Directive on Copyright in the Digital Single Market has been designed to end this practice and to ensure that reproductions of public domain works can be freely re-used in all EU Member states. It requires Member States to

… provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.

Those EU and EEA Member States and that currently permit the protection of non-original reproductions (Austria, Germany, Italy, Spain, Denmark, Sweden, Finland, Iceland, and Norway) now have until June 2021 to ensure that their national laws comply with this change. Implementing Article 14 will mean that Member States need to either remove or to limit existing provisions on related rights in their national copyright laws. How exactly they will achieve this will vary from Member State to Member State. It may be a relatively straightforward operation, but there are a number of issues that require special attention. 

First and most important, Member States must realize that Article 14 is a minimum harmonization measure, and that they are in a position to make changes to their laws that go further than what is required by the DSM directive: While the scope of Article 14 is limited to “works of visual art” and to such works for which “the term of protection has expired”, Member States would be well-advised exclude all non-original reproductions of copyrighted works from eligibility for any form of related rights protection. This would provide increased legal clarity as it would remove the need to find an unambiguous definition of the “visual arts.” Also, it would avoid the need to introduce complicated rules regarding the application in time, such as what happens to related rights that were created before the term of protection of the underlying work expired. 

Second, most of the discussions on Article 14 has focused on two-dimensional reproductions of two-dimensional works, such as digital reproductions of paintings. But it’s important to realize that the language of Article 14 also includes three-dimensional reproductions of three-dimensional works, such as 3D models of sculptures created via 3D scans or similar technologies. In implementing Article 14, Member States must ensure that three-dimensional reproductions of three-dimensional works are also excluded from related rights protections. (It should be noted that two-dimensional reproductions of three-dimensional works, such as digital photographs of sculptures, will continue to be protected under copyright as these works are generally considered to meet the standard of originality required for copyright protection to arise.) 

Finally, Member States should also ensure that the intent of Article 14 is clearly communicated by the updated national legislation. Any legislative changes must clearly rebuke any claims that making high-quality reproductions of copyrighted works qualifies for copyright protection. When implementing Article 14 lawmakers should enshrine the fundamental principle that mere copies of existing artworks should not be subject to copyright or related rights.

More questions? Get in touch

During the implementation period of the Directive on Copyright in the Digital Single Market we are offering support to activists and other civil society stakeholders working on national implementations that maximize user rights, ensure maximum access to knowledge and culture, and protect the public domain. If you have additional questions or want to contribute to these efforts, please feel free to get in touch with us via info@communia-association.org or on Twitter @communia_eu.

The post Implementing the Copyright Directive: Protecting the Public Domain with Article 14 appeared first on COMMUNIA Association.

Like many other multilateral agreements that have been negotiated in recent years (TPP, TTIP, etc.), the Mercosur-EU FTA covers a large number of areas (not all strictly related to trade) ranging from the exchange of goods to capital movements, phytosanitary measures, electronic commerce and intellectual property (IP). The area of ​​negotiation related to IP is extremely broad, including patents, trademarks, geographical indications and copyright, among other topics.

From TRIPS to TRIPS Plus

In most of the issues related to IP, the Mercosur-EU FTA goes beyond the international obligations imposed on the countries in 1994 with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the context of the creation of the World Trade Organization. TRIPS established a minimum regulatory floor on IP that forced a large number of countries, including those of the Mercosur, to modify their laws, establishing restrictions on the circulation of knowledge and negatively affecting the public domain. In the field of copyright, TRIPS established a minimum copyright term of the author’s life plus 50 years, meaning that countries like Uruguay, which at that time had a term of only 40 years, was a major change. TRIPS also forced the countries to establish criminal penalties for IP infringements conducted on a commercial scale, as well as to protect software using the same regulatory framework as that applied to literary works. While some of these measures were already established in the Berne Convention and other treaties administered by the World Intellectual Property Organization, TRIPS stipulated economic sanctions for countries that did not comply with the obligations, which resulted in rapid adaptation to a new regulatory framework.

Beginning in the 21st century, the WTO entered a phase of stagnation in which developed countries saw their expectations of new rightsholder-centered regulations thwarted. As a result, the trade-related IP agenda migrated from the WTO to bilateral and multilateral FTAs. Through these instruments, generally negotiated between developed countries and underdeveloped countries—with the powerful developed countries clearly at the wheel—new obligations were introduced that increased the levels of IP restrictions above and beyond what had been required by TRIPS. These new obligations are known as “TRIPS plus.” The TRIPS plus measures include, in the field of copyright, an increase in the term of copyright to the author’s life plus 70 years, penalties for the circumvention of technological protection measures, new exclusive rights for broadcasting organizations over the broadcasts, and other measures that place high barriers to free use and enjoyment of the public domain.

The new Mercosur-EU FTA drafts

The Mercosur-EU FTA, like TPP, TTIP and others of its kind, is being negotiated with a level of secrecy unacceptable for democratic discussion. The drafts have been made public sporadically, but not through a transparent negotiation process, nor with accountability to citizens and true participation of civil society. However, according to what is known so far, it can be said that IP measures included in the agreement fit perfectly in the definition of TRIPS plus. Last September, Creative Commons analyzed a November 2016 draft of the IP chapter. This draft included highly worrying measures, such as the extension of copyright terms, the absence of clauses of limitations and exceptions protecting the rights of users, the mandatory remuneration for performers and producers of phonograms, the introduction of legal sanctions to the circumvention of technological protection measures, and the provision of preventive court orders against “imminent infringements”, among other TRIPS plus measures clearly harmful to the public domain and access to knowledge. The 2016 draft essentially reads like an attempt by the European Union to impose the restrictive elements of its own copyright rules on the Mercosur countries.

A few weeks ago, Greenpeace Netherlands leaked a new draft of the Mercosur-EU FTA, apparently from July 2017, which includes the IP chapter. This new draft of the IP chapter shows the huge number of areas where there is a lack of agreement between Mercosur and the European Union. In the section devoted to copyright, the consolidated text (meaning those areas agreed upon by both parties) is only a small fraction. The rest consists of proposals and counterproposals from both parties. It is easy to see that, while the interest of the European Union is to increase the terms and scope of IP protection, as well as to impose new penalties on infringement, Mercosur countries seek to avoid higher IP standards, incorporate mandatory limitations and exceptions to copyright, and favor the identification and protection of the public domain.

This almost total lack of agreement is understandable if we take into account the international balance between payments and receipts for the use of IP. The World Bank data in this regard are eloquent regarding the enormous existing asymmetry, as a result of which the least developed countries have a huge deficit. The hardening of IP, therefore, would bring as a direct effect the increase in payments for the use of licenses from the least developed to the most developed countries.

Taking into account the history of the negotiations of this type of FTA, it is very possible that most of the disagreements revealed in the July draft will end up going in favor of the European Union text. Given that the Mercosur countries have their fundamental interest in the trade of agricultural products, they are forced to sacrifice their interests in other areas. This is what happened, for example, in the FTA signed between the European Union and Ecuador in November 2016. Just before the negotiations started, Ecuador was discussing a new copyright framework, through which it was proposed to lower the term of copyright from 70 to 50 years after the death of the author. However, the FTA with the European Union included the obligation that the term be set at no less than life plus 70 years, which forced the Ecuadorian government to adopt that term. The example of the FTA between Ecuador and the European Union shows a pattern that is repeated in other FTAs between developed and underdeveloped countries. Strong IP measures are usually accepted by less developed countries, since they are usually seen as a price to pay to obtain advantages in others aspects of the trade negotiation process.

It should be remembered that, due to the economic orientation of the leftist governments of Mercosur in the last decade—before the new rise of neoliberalism—none of the Mercosur countries had adopted TRIPS plus through FTAs. For this reason, unlike other countries where TRIPS plus is already in place, any progress in the TRIPS plus direction is a serious loss for the public domain in the Mercosur countries. Thus, for example, Uruguay would be forced to increase the term of its copyright 20 years, while Argentina would be forced to adopt prohibitions against the circumvention of technological protection measures.

Different perspectives but a shared struggle

At this point, it is necessary to note that public domain activists may have different perspectives according to the region in which they work. From the perspective of the European Union public domain advocates this agreement may be seen as an opportunity for the inclusion of public domain provisions in a standard TRIPS plus FTA. From the European perspective, the text proposed by Mercosur on the importance or a robust public domain and the need to collaborate on the identifying subject matter in the public domain (see Article 4.4 of the IP chapter) would result in a substantive improvement of existing EU copyright law (even though as a Mercosur suggestion it is unlikely to prevail). However, from the perspective of Mercosur public domain advocates, any advance in the TRIPS plus direction (even if it were a little more benign than in other FTAs) would represent huge damage.

Perhaps this difference can be saved if we consider this struggle not as a sum of struggles in each country or region, but as a global struggle to support the public domain. As Luis Gil Abinader argues in a very interesting recent article, the fact of incorporating TRIPS plus (either in its hard version or in its most benign version) in countries that do not have it so far, not only damages access to culture in those individual countries, but it also makes all non-TRIPS plus countries lose bargaining power in multilateral trade, isolating them and pressuring them to finally adopt TRIPS plus, either through bilateral or multilateral agreements, or even in the future through the WTO itself. As a result, a new wave of barriers to the public domain would be consolidated at the global level. Therefore, there is also a tactical interest for public domain advocates of all countries in continuing to strongly oppose TRIPS plus; it’s not yet a lost battle, and it should not be seen that way.

Of course, if the Mercosur-EU FTA is signed and enters into force, it is desirable that it be as least harmful as possible for the public domain, even if it extends the terms and scope of knowledge privatization, and set new penalties. If some new mandatory exceptions to copyright are included in the FTA, the public domain activists of the Mercosur and European Union countries will take advantage of them. But it is necessary to keep in mind that it is never a good deal to exchange highly damaging TRIPS plus measures for other less comprehensive clauses which would benefit the public domain only in a minor fashion.

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Most of Europe’s Museums, Libraries and Archives digitize Public Domain works in their collection in order to make them available without any restrictions (in line with our Public Domain Manifesto and Europeana’s Public Domain Charter). However, a minority of institutions uses loopholes in copyright legislation to claim exclusive rights over digital reproductions of works for which copyright protection has expired.

The legal basis for such claims is often found in copyright rules that also afford some form of protection to non-original photographs. These are photographic reproductions that qualify for copyright protection because they do not constitute the “own intellectual creation” of the author. Such loopholes exist in 7 EU member states and the proposed DSM directive would have been an opportunity to close them.

Even though the Commission has missed the opportunity to introduce clear rules protecting the Public Domain, a number of Members of the European parliament have now submitted amendments that aim at preventing further privatization of the Public Domain through digitization (or other means).

MEPs Felix Reda, Catherine Stihler, Evelyn Regner, Lidia Joanna Geringer de Oedenberg, Victor Negrescu, Sergio Gaetano Cofferati, Josef Weidenholzer, Isabella Adinolfi, Laura Ferrara, David Borrelli and Dario Tamburrano have all proposed the addition of the following (or very similar) language to the text proposed by the Commission:

Member States shall recognise that once a work is in the public domain because the copyright and related rights therein have expired or never existed, faithful reproductions in full or in part of that work, regardless of the mode of reproduction and including digitalisation, shall equally not be subject to copyright or related rights.

Bonus points go to MEPs Evelyn Regner and Josef Weidenholzer who have also proposed to rename Article 5 into “Preservation of cultural heritage and safeguarding the Public Domain“.

Even though these amendments have been tabled by a relatively large group of MEPs it is far from certain that they will make it into the European Parliament’s final report. We hope that during the ongoing deliberations more MEPs will realize the importance of closing these loopholes which allow cultural heritage institutions to keep works for which the original copyright term has long expired out of the public domain.

The post Members of the European Parliament call for safeguarding the Public Domain appeared first on COMMUNIA Association.

The campaign raised various concerns with regard to copyright terms and access to culture. We’ve already examined the differences between the three versions of the diary, so we won’t go into that in depth here. Without a doubt, versions A and B did not enter into public domain in the Netherlands due to specific copyright regulations (This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright — in this case large parts of the original writings will only expire in 2037).

But the versions did enter the public domain in Poland. We think that the Digital Single Market should take under consideration adjustments to copyright that will better support the digital environment and access to creativity across borders. We were surprised to learn that Germany is considering extending their copyright term for authors who died under the Nazi regime (this change is not yet official, although the discussions continue between German authors and collecting societies). Such a move will create further legal uncertainty not only for users, but also for entrepreneurs who want to use works in the public domain.

Geo-blocking is another frustrating practice that places additional hurdles or transactional costs on users who simply want to be able to access (and pay for) creative content online. Licensing segmentation and content blocking can affect access to works in the public domain when those materials are subject to the same types of blunt restrictions as the copyrighted materials. Europe has a strong policy and vision for the re-use potential of publicly available resources—for example public sector information or creative works in the public domain. If we care about enabling broad re-use of these materials, we need to tackle the serious problem of geo-blocking.

We received some pushback on our characterization of geo-blocking. We used the term to describe the rationale behind our posting of the diary as a copyright territoriality issue—namely that the varying copyright terms permitted us to publish it in Poland because it is considered to be in the public domain there (in contrast with the Netherlands).

Since the notion of “communication to the public” is still being discussed in CJEU jurisprudence, we decided to make it possible to download the original version of the diary in Poland, but not in the Netherlands. We know that the term geo-blocking is used mostly in the context of cross border access to legally acquired online content (with the famous case of Andrus Ansip not being able to watch an Estonian football match online while in Brussels). But to us geo-blocking is a common name for the more general practice of limiting access to copyright-protected content to specific national markets. And without a doubt, restricting access to any content due to extended copyright terms falls under such a characterization.

One other criticism we heard about our campaign is that The Diary of Anne Frank is easily (and cheaply) available in print. Surely this is true, but our campaign was never meant to be about money. We think that the diary should be freely available online—in the public domain—because everyone should be granted the right to access and enjoy this important cultural heritage work. The fact that some versions of the diary are still under copyright in some countries is the result of nothing more than the lack of harmonization in EU law. Preventing broad access and re-use rights to the work is directly opposed to the stated purpose of copyright — to advance culture and science.

The Diary of Anne Frank is an excellent example of why Europe needs a modern and progressive copyright framework. Currently, the rules for establishing copyright terms are so complex that we need a small army of international IP lawyers just to determine whether a particular work is still protected by copyright or neighboring rights. In particular, the lack of effective harmonisation of the duration of copyright across the EU hampers the efforts of organisations and entrepreneurs, who simply want to offer innovative online products and services. Only an intervention at the European level can remedy this situation. As we have stated before, the term of copyright protection should be reduced and fully harmonized throughout the EU. If we want to fully unlock the potential of our rich cultural heritage to foster the Digital Single Market, we need clear rules that permit anyone to easily determine the rights status of a work.

The post What does Anne Frank tell us about copyright reform? appeared first on COMMUNIA Association.

Since the beginning of the year there’s been a lot of discussion (and confusion too) about whether the Diary of Anne Frank is now in public domain. Under the normal rules regarding the duration of copyright protection, the work should have entered into the public domain on 1 January 2016. However, there were several unusual circumstances that brought this into question. First, the Anne Frank Foundation announced their plans to list Otto (Anne Frank’s father) as a co-author, which would extend the protection period of the published diary until 2050. Next, due to a transitional rule in Dutch law it became clear that Anne Frank’s original writings would not enter the public domain in 2016 in the Netherlands (and many other EU countries with similar rules). Finally, in early February the Wikimedia Foundation (the organization that hosts Wikipedia and related projects) decided to remove the Dutch-language text of the diary from Wikisource.

On Tuesday 26 April, World Intellectual Property Day, the original, Dutch-language version of ‘The Diary of Anne Frank” will be published online at annefrank.centrumcyfrowe.pl. With this publication of the original version of the diary we seek to highlight the absurdly long duration of copyright in the EU, as well as the fact that, contrary to general assumptions, the duration of copyright is still not unified across the EU and the troubling fact of geo-blocking which creates boundaries online.

On the Anne Frank Foundation website we can read that “Anne Frank’s original writings, as well as the original in-print versions will remain protected for many decades”. So, when does the copyright of the diary expire? It seems that the answer varies from country to country, and we’ll try to investigate whether there is somewhere in the EU where the writings of Anne Frank are now in the public domain.

Transitional provisions in the Dutch law

To fully understand the issue at hand, we observe that there are actually three versions of Anne Frank’s diary writings. Two versions of her manuscripts (version A and B) were combined into the book (version C). This book is commonly known as the the Diary of Anne Frank, and was published in 1947.

As we have previously discussed, version C was compiled by Otto Frank and thus is still protected by copyright 70 years from the time of his death in 1980. But in the case of manuscripts (version A and B) there is no doubt that Anne Frank was the sole author. As we can read  in the statement of the Anne Frank Stichting (who runs the Achterhuis in Amsterdam)“Otto Frank is not the co-author of the original diary writings of Anne Frank”. The same is confirmed by the Anne Frank Foundation (who own the copyrights in Anne’s work), which claims that “copyrights to Anne Frank’s original texts originally belonged to the author, Anne Frank herself”.

In the Netherlands copyright lasts for 70 years after the death of the author. And even though Anne Frank was killed in 1945, this doesn’t mean that the A and B versions of her diary are in the public domain under Dutch law. This is because the full manuscripts were first published in 1986, and the rule at that time said that works which were first published posthumously are protected for 50 years after the initial publication.

The 2013 Dutch copyright act implementing the 1991 term directive contained transitional provisions stipulating that rights which existed under the previous law continue to exist. This means that versions A and B of the Frank diary will remain under copyright in the Netherlands until 1 January 2037 (50 years after the 1986 publication).

What about other countries?

The websites of both the Anne Frank Stichting and the Anne Frank Foundation say that the expiration of the copyright on Anne Frank’s diary differs from country to country, depending on each country’s copyright laws.

In theory, the copyright duration has been harmonised by the Copyright Term Directive to 70 years after the death of the last surviving author. In practice, each country has its own rules. Two main factors have contributed to this situation: the divergence of legislation between member states and a large number of national exception clauses which extend beyond the general term prescribed in the Directive. Thus it is really surprising that the EU considers this subject as unified.

In countries like France or the UK, where there are similar rules for posthumously published works apply, the Diary of Anne Frank remains protected for many years more. In Spain, where the term of protection was longer (for some period) than prescribed in the Term Directive, the protection of Anne Frank’s works will be extended by 10 years. In the United States, the diary will be under copyright protection until 2042.

Is there a place, where the diary is in the public domain?

Fortunately, in Poland a special provision for extended protection for works published posthumously was removed in 1952.
Moreover, in 1952 the term of protection was reduced to 20 years after the death of the author. But in 2000—due to implementation of the Copyright Term Directive into the Polish law—copyright in the diary was reinstated. Since the general rule of the author’s lifetime plus 70 years should apply here, we believe that Anne Frank’s original writings (version A and B) are in the public domain in Poland since 1 January 2016. However, publishing those writings online may be illegal if the publisher can’t prevent cross-border access from countries where protection has not expired.

The rules of copyright duration and territoriality should be simple and unified

The Diary of Anne Frank is an excellent example why Europe needs a modern and progressive copyright framework. Currently, the rules for establishing the duration of the term of protection are so complex that we need the support of legal experts from different European countries just to determine whether an individual work is still protected by copyright or neighboring rights. In particular, the lack of effective harmonisation of the duration of copyright across the EU hampers efforts of organisations and entrepreneurs, who want to offer online products and services. Only an intervention at the European level can be remedy this situation. As we have repeatedly argued, the term of copyright protection should be reduced and fully harmonized and unified throughout the EU. If we want to fully unlock the potential of our rich cultural heritage we need clear rules that allow anyone to determine whether a work is still protected by copyright. This also includes making it clear that digitization of public domain works does not create new rights.

The post Anne Frank and the Term of Copyright Protection: Why it’s Time to Move from Harmonisation to Unification appeared first on COMMUNIA Association.

The Anne Frank Stichting announced plans to publish an edition of Anne Frank’s texts online after the presumed expiration of the copyright on January 1, 2016. In response, the Anne Frank Fonds sued the Stichting over what it considered unauthorised reproductions of Anne Frank’s writings. The reproductions had been made by the Stichting as part of its preparatory research for the on-line publication after the new year. Initially, this seemed to be an attempt by the Fonds to thwart or delay the Stichting’s plans for an online edition.

However, during the course of the legal arguments it became clear that under Dutch law (which governs uses made by the Stichting), Anne Frank’s original writings would not enter the public domain in 2016. This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright—in this case large parts of the original writings will only expire in 2037.

While this means that the Stichting had to shelve its plan to publish an online edition, the Fonds continued to press charges related to the reproductions (XML-TEI files) made by the Stichting in order to carry out its textual and historical research. The Stichting was sued alongside their research partner the Dutch Royal Academy of Science (KNAW). Both upheld the position that it did not require permission for making reproductions solely intended to enable its internal scholarship, claiming that copyright law should not be used to thwart scientific research.

On the 23rd of December the District Court of Amsterdam handed down its ruling in the case. After establishing that the writings of Anne Frank are indeed protected by copyright (and, in the Netherlands, will continue to be protected for the foreseeable future), the court also ruled on the legality of the research reproductions made by the Stichting.

While the court dismissed arguments that the creation and use of these reproductions were covered by a number of exceptions and limitations to copyright, the court did agree with the claim that the requirement to obtain permission from the rights holder for making such copies is in in conflict with the freedom of scientific research as established by article 13 of the Charter of the Fundamental Rights of the European Union. In its ruling (Dutch, translation mine) the district court argues (emphasis added):

From [the previous arguments] it follows that the creation of the XML-TEI file that has been made available to third parties constitutes an infringement of the copyright held by the [Anne Frank] Fonds. It needs to be judged if the circumstances of this particular act provide a reason to reject the demands made by the Fonds because this would, in the light of the principle of proportionality, put unreasonable restrictions on the freedom of scientific research. […]

It goes without saying that in order to carry out proper textual scientific research the researchers must have access to some copies of the texts that are being researched. Without these reproductions it is impossible to access the source materials which makes the research virtually impossible. This includes the XML-TEI file produced by the Huygens ING [Institute]. After all, this file has been created […] for the sole purpose to carry out scientific research.

The Fonds has only broadly stated that it does not have to tolerate everything that happens with the texts. Insofar as the Fonds tries to obtain control over what research should take place or not, this is not a right that is protected by copyright.

It is also clear that the infringement of the copyright of the Fonds taking place as part of the research does not extend beyond the provision of only a few reproductions of the works, and to a limited number of researchers directly involved in the research. The copyright infringement thus has minimal impact.

Under these circumstances, the court concludes that enforcement of the copyright by the Fonds is subordinate to the fundamental right of the Stichting et al on her freedom of scientific research.

Anyone who is familiar with the current discussion about the copyright status of text and data mining will quickly recognize that this case—which started as a dispute about the length of copyright protection—offers some valuable insights into the legal status of text and data mining in Europe.

The actions of the Stichting and the KNAW (creating a machine readable version of the text (the XML-TEI file)) are an excellent example of text mining. Research organisations and research libraries have long claimed that the making of reproductions of works that happens as part of the process of text and data mining should not require permission from the rights holders as long as the researchers have legal access to the works in question.

The court supports this line of reasoning by recognizing that requiring permission from the rights holders before machine readable reproductions can be made would make TDM-based research ‘virtually impossible’. In addition, by tying the issue of text and data mining to the freedom of scientific research, the court provides a strong normative justification for the rationale that TDM should not require the permission from rights holders.

Since text and data mining is one of the issues that will be dealt with during the upcoming modernization of the EU copyright rules, we hope that European lawmakers will pay close attention to the reasoning of the court in this case. As the Anne Frank Stichting and the KNAW rightly point out, copyright law should not be used to thwart scientific research. Such an outcome is unfortunately a very real danger, given the approach presented by the European Commission in December.

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This new state for cultural works means that they are now free to be reused for new cultural, commercial, educational and innovative practices. During the lunch-event in the Members Salon we will talk about the value of the public domain in fostering Europe’s innovation capacities, by inviting creators to share how they use public domain works in their businesses and approach copyright.

Speakers include our host in the European Parliament Felix Reda (MEP, The Greens EFA – Germany), Alek Tarkowski (Director Centrum Cyfrowe), Paul Keller (Director Kennisland).

Please RSVP for this event to Lisette Kalshoven at lk@kl.nl

For more details please refer to the official invitation.

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

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

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

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

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

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

Europe needs new #copyright rules. Sensible balance between the interests of users and authors. http://t.co/zGnoS5tiAQ

— Günther H. Oettinger (@GOettingerEU) January 12, 2015

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

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

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

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

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

A look into the past ..

The Open Knowledge Foundation began working on the first implementation of the Public Domain Calculators in 2006, then for the Public Domain Works project, whose goal was to identify sound recordings which are in the public domain in the United Kingdom, based on metadata provided by the BBC and private collectors. In 2007, as Public Domain Works began working with the Open Library project, the idea emerged to create a set of algorithms for determining the public domain status of a work in different jurisdictions.

At the first Communia workshop in 2008, the Open Knowledge Foundation proposed collaborating with legal experts in the network to create a set of public domain calculators for different jurisdictions in Europe. These discussions eventually led to the creation of the Public Domain Working Group, who planned to work on public domain calculators across Europe.

After several years, thanks to the support of a large community of legal and technical experts, the public domain calculators of the Open Knowledge Foundation are now a functional piece of software which can help people determine the copyright status of a work. Based on the research done by Europeana Connect (a project funded by the European Community Programme eContentplus), the public domain calculators rely on a series of national flowcharts which represents the provision of copyright law in the form of a decision tree. For any given work, the public domain calculators can determine whether or not that work is in the public domain in any given jurisdiction by matching the bibliographic metadata attached to that work against the provisions of copyright law for that particular jurisdiction.

In terms of technology, the Public Domain Calculators of the Open Knowledge Foundation shares similarities with the those recently developed by Kennisland and the Institute for Information Law at the University of Amsterdam (IviR) in the framework of Europeana Connect. The main difference between the two is that the OKFN calculators have been designed to be completely independent from any user input and are therefore completely automated. This represents the most innovative aspect of this technology. By gathering the relevant metadata from a variety of databases, the public domain calculators only process the data necessary to identify the legal status of a work, so as to subsequently present them to the users upon request.

A glance into the future ..

The value of the Public Domain Calculators has recently been acknowledged by the French Ministry of Culture, which created a partnership with Open Knowledge Foundation France to develop a working prototype of the calculators for the French jurisdiction. In collaboration with two pilot institutions, the Bibliothèque Nationale de France and the Médiathèque de l’architecture et du patrimoine, the calculator will be presented as a pedagogical tool for the cultural sector to better understand the legal status of the works and the value of the metadata it produces.

In France, this comes at an important time, as we’re entering the time when most of the works produced by authors who died during the second world war would, theoretically, enter the public domain. Yet, French copyright law stipulates that authors who died during the war in the name of France have extended terms of protection. Hence, by applying the standard 70 years post-mortem rule, a number of works which are still eligible for copyright protection might end up being incorrectly assumed to be in the public domain. The public domain calculators represent a technological solution to help people identify whether or not these works have indeed entered into the public domain.

But the value of the public domain calculators extends far beyond highlighting the peculiarities of national copyright laws. Their objective is also to promote good practices within the cultural sector. Hence, in France, in addition to being a mere pedagogical tool, the calculators will also be employed as a benchmarking tool to help cultural institutions identify flaws and gaps in the structure or content of their bibliographical metadata, so as to ultimately increase the accuracy of the results.

We hope that other countries will follow the example of France, and that the potential of the public domain calculators as a means to promote good open data policies within the cultural sector will be appreciated by many other countries around the world.

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