Today’s topic for Copyright Week is Transparency: Whether in the form of laws, international agreements, or website terms and standards, copyright policy should be made through a participatory, democratic, and transparent process.

For Copyright Week last year we wrote about transparency and representation in relation to the public consultations leading up to the European Commission’s release of their new Directive on copyright in the Digital Single Market. Our headline read, “Evidence-based copyright policy making should be a no-brainer.” We argued, “It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts.” But when we saw what was in the Commission’s draft, it became clear that a large swath of substantive feedback from the public was mostly ignored.

Here we are a year later, and the situation in the EU has not improved one bit.

There has been a steady drumbeat of trusted research and expert commentary on how the introduction of a press publishers right will not only fail to generate revenue for a rapidly changing news publishing environment, but will also harm public access to information online. Much of this research was tendered by the European legislator itself. For example, in September 2017 the Legal Affairs committee published a report on the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. But, as we noted in our blog post, it wasn’t clear when (or if) that research would have been presented to the JURI MEPs ahead of them having to vote on the issue.

In December 2017 MEP Felix Reda uncovered the existence existence of another study debunking proposed benefits of the press publishers right. The study undertaken by the European Commission’s own Joint Research Centre (JRC) shows that “newspapers actually benefit from news aggregation platforms.” Together with the study MEP Reda also received a copies of an exchange between the European Commission directorate that is responsible for the proposed directive and the author of the JRC study. In the exchange the JRC is told to refrain from publishing his results until further notice, again with the apparent intention to withhold them from MEPs who were at that time discussing the merits of the publishers.

Finally, the Commission’s subterfuge extends beyond simply the controversial press publishers right. MEP Reda also shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works. Apparently the contract for the economic research was tendered by the Commission in 2014 for €360,000. It was completed in 2015 but never published, and Reda received a copy of the report after several freedom of information requests.

As we wrote when the existence of the secret report came to light, “One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market … Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.”

The Commission’s suppression of research it asked for but which doesn’t align with its preferred narrative reveals in a harsh light the ongoing hypocrisy of the their rhetoric around evidence-based policymaking. Copyright policy should be made through a participatory, democratic, and transparent process. And the governmental actors leading this process should have the courage and decency to share all relevant information with all stakeholders, especially the public.

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The European Union began to consider updating its copyright rules in 2013. In September of last year the European Commission released its proposal for a Directive on Copyright in the Digital Single Market. Unfortunately, the plan fails to deliver on the promise for a modern copyright law in Europe. It also does not take into account results of consultations that the Commission has conducted.  

It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts. This information should be broadly available for public inspection, and public institutions should solicit and fairly incorporate feedback from a wide range of stakeholders. The process undertaken by the Commission hasn’t lived up to these expectations.

Representation does not work if the consultation process is broken

The Commission released its copyright plan simultaneously with the long-overdue results of the public consultation on the panorama exception, and the press publisher’s right. This is a prime example of lack of commitment to transparency nor representation. As written in an earlier post:

The public consultation on freedom of panorama and ancillary copyright ended on 15 June. We think that the public input should have been analyzed by the Commission and released to the public long before any public release of a Directive in which those topics are discussed. Doing so would have demonstrated reasonable and responsible policy-making on behalf of the Commission. But by releasing the summaries of these consultations at the same time as the Directive—when it was far too late for the public to understand the Commission’s thinking, let alone advocate for other changes—only reinforces the EC’s disingenuousness in having a public consultation in the first place.

But looking beyond process considerations, it’s clear that a large swath of substantive feedback was mostly ignored by the Commission. We and many other respondents urged the Commission to introduce a broad, EU-wide Freedom of Panorama right that applies to both commercial and noncommercial uses of all works permanently located in public spaces. The Commission decided not to include it in their proposal.

Link tax and evidence-free policymaking

But perhaps the Commission’s approach to the press publisher’s right (also known as ancillary copyright, linktax, etc.) is a better example of evidence-free policymaking. In opposition to much of the public feedback on this measure, the Commission still introduced the press publisher’s right within their copyright proposal. Their summary report on the public consultation does not communicate that there were nine times as many users, consumers, and citizens who opposed the introduction of the right than press publishers who supported it. The logical conclusion as to why the Commission doesn’t mention this—or provide any sort of numerical breakdown of respondents ‘for’ and ‘against’—is because it would plainly show that there is massive opposition to the introduction of a right for press publishers.

But even if we look beyond public opinion, there’s obvious and direct evidence that a press publisher’s right does not work. Similar rules have already failed to achieve their primary goals in Germany and Spain. A new right will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

Beyond EC consultations: transparency in the Parliament and the Council

It’s imperative that copyright policymaking rely on sound research, incorporate public input, and be communicated in a transparent fashion. Next steps in the legislative process are taking place in the European Parliament and the Council. In the Parliament, MEPs are openly discussing the proposal with their constituents and stakeholders. There is ample space to propose amendments: specific textual changes to the Commission’s proposed Directive. Yet the Council remains a black box, inside which representatives of Member States governments negotiate behind close doors. There are no minutes of the meetings, governments don’t share their positions or outcomes of discussions. One more proof of lack of transparency in this process.

As we are attempting to fix copyright at this crucial moment for copyright law in Europe, we need to be aware that the legislative process itself needs to be fixed.

COMMUNIA has provided feedback and recommendations in support of positive changes in support users and the public interest. We submitted extensive comments to the Public Consultation on the review of the EU copyright rules, not to mention the specific consultation on the freedom of panorama and the press publisher’s right. Since then, we’ve been analysing the proposal and published a series of position papers dealing with the various aspects of the draft Directive. These include the education exception, the exception for text and data mining, the press publisher’s right, freedom of panorama, and content filtering for online platforms.

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

If you want to learn more about transparency and representation in the EU copyright reform, Copyright for Creativity has written a detailed blogpost on the topic.

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COMMUNIA advocates for policies that expand the public domain and increase access to and re-use of culture and knowledge. Over the last few years we’ve focused on policy advocacy and copyright reform in Europe, especially in light of the review of the EU copyright rules. The public domain is an essential sphere for creativity and knowledge production, and its limitless potential continues to inform our copyright reform advocacy.

We write in our March 2015 policy paper about several changes to EU copyright law that would better support the public domain. Some of these include capping the term of copyright protection to the minimum required by the Berne Convention, opposing the introduction of ancillary copyrights, protecting the freedom of panorama, and exempting works produced by the public sector from copyright protection. In addition, we call for the introduction of a positive definition of the public domain, the recognition of the legal validity of voluntary dedication of works to the public domain by their authors, and clarity that digitizing public domain works should not generate new exclusive rights.

In June of last year the European Parliament adopted an evaluation report on the existing EU copyright rules authored by MEP Felix Reda. While the EP failed to call for substantial updates to exceptions and limitations, it contains some support for the public domain. It urges the European Commission to clarify that once a work is in the public domain, the simple act of digitisation does not create new rights. It suggests that the term of copyright be held at the international standard (life of the author plus 50 years). It also states that works created by government employees should be in the public domain. Finally, it recognizes that authors should be able to dedicate their works to the public domain.

With its report, the European Parliament also rejected the introduction of an ancillary copyright for for press publishers. This is an important victory as adding such an extra layer of rights to the already extensive body of copyright and copyright-like protections would further limit the public domain. Unfortunately, the European Commission still hasn’t distanced itself from plans to introduce an ancillary copyright on the EU level, which has prompted 83 members of parliament to reconfirm their opposition to it in December.

With legislative proposals promised by the Commission in the first half of this year, 2016 promises to become a crucial year with regard to the shape of the public domain in Europe. On the 25th of January we are kicking the year off with an event in the European Parliament celebrating Public Domain Day (hosted by MEP Felix Reda). Together with creators and policymakers, we will discuss the value of the public domain and how an update of the EU copyright rules can strengthen the public domain for everyone.

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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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This post was originally published on the Creative Commons blog under CC BY 4.0.

This week is Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic is about supporting fair use, a legal doctrine in the United States and a few other countries that permits some uses of copyrighted works without the author’s permission for purposes such as parody, criticism, teaching, and news reporting. Fair use is an important check on the exclusive bundle of rights granted to authors under copyright law. Fair use is considered a “limitation and exception” to copyright.

One area of particular importance within limitations and exceptions to copyright is the practice of text and data mining. Text and data mining typically consists of computers analyzing huge amounts of text or data, and has the potential to unlock huge swaths of interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel scholarly discoveries and critical scientific breakthroughs. Because of this, text and data mining is increasingly important for scholarly research.

Recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from copyright. And as the European Commission conducts their review of EU copyright rules, some groups have called for the addition of a specific text and data mining exception. Copyright for Creativity’s manifesto, released Monday, urges the European Commission to add a new exception for text and data mining, in order to support new uses of technology and user needs.

Another view holds that text and data mining activities should be considered outside the purview of copyright altogether. Our response to the EU copyright consultation takes this approach, saying “if text and data mining would be authorized by a copyright exception, it would constitute a de facto recognition that text and data mining are not legitimate usages. We believe that mining texts and data for facts is an activity that is not and should not be protected by copyright and therefore introducing a legislative solution that takes the form of an exception should be avoided.” Similarly, there have been several actions advocating that “The right to read should be the right to mine.”

Whether text and data mining falls under a copyright exception or outside the scope of copyright, it is clearly an activity that should not be able to be controlled by the copyright owner. But unfortunately, that is exactly what some incumbent publishing gatekeepers are trying to do by setting up restrictive contractual agreements. One example of this practice is with the deployment of a set of “open access” licenses from the International Association of Scientific, Technical & Medical Publishers (STM), many of which attempt to restrict text and data mining of the licensed publications. In jurisdictions such as the United States, users do not need to ask permission (or be granted permission through a license) to conduct text and data mining because the activity either falls outside of the scope of copyright or is squarely covered by fair use.

Ensuring that licenses give copyright owners no more control over their content than they have under copyright law is a fundamental principle of Creative Commons licensing. That’s why the CC licenses explicitly state that they in no way restrict uses that are under a limitation or exception to copyright. This means that users do not have to comply with the license for uses of the material permitted by an applicable limitation or exception (such as fair use) or uses that are otherwise unrestricted by copyright law, such as text and data mining in many jurisdictions.

Today’s topic of fair use rights reminds us that “for copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.” To liberate the massive potential for innovation made possible by existing and future types of text and data mining, we need user-focused copyright policy that enables these new activities.

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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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Communia began as a European Union-funded research network, consisting of an initial group of 50 researchers, practitioners and activists, and led by Juan Carlos De Martin. Communia was joined by non-European institutions in order to study the public domain at large, and also related topics such as open licensing, copyright exceptions and limitations, orphan works, and open data. Unusually, the Communia project produced a piece of work not foreseen in the original grant agreement, the Public Domain Manifesto. The Manifesto is an emblematic text stating that the public domain, the obverse of copyright, is a wealth of works which are difficult to identify and to define. The Manifesto proclaims, Public Domain is the rule and that copyright is the exception.

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

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

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