Background

According to Article 14 of the CDSM Directive, any material resulting from an act of reproduction of a public domain work cannot be subject to copyright or related rights-protection unless it is original in the sense that it is the author’s own intellectual creation. All EU member states are required to implement Article 14 and amend their national legislation accordingly (see Deborah De Angelis’s blog post).

Italy transposed Article 14 of the CDSM Directive into domestic law by passing Article 32-quarter of the Italian Copyright Law n. 633/1941 in November 2023 (Legislative Decree no. 177). The article includes a problematic addition: “The provisions on the reproduction of cultural heritage contained in Legislative Decree No. 42 of 22 January 2004 [CCHL] remain unaffected.” The reference is to Article 108 of the CCHL, which requires the payment of a concession fee for the reproduction of digital images of state-owned cultural heritage in the public domain if the reproduction is for-profit. The provisions of the CCHL beg the question of the protection of the public domain by other fields of law outside of copyright and related rights, which are not explicitly mentioned in Article 14 of the CDSM Directive (see Mirco Modolo’s article on the subject). Only the European Court of Justice (ECJ) can provide guidance on this matter. However, no Italian court has referred to the ECJ yet to clarify the relationship between Article 14 and the CCHL.

In recent years, the CCHL has been used by Italian cultural heritage institutions to initiate a number of lawsuits against commercial uses of works by Italian artists, which are clearly in the Public Domain.

Recent case law on the unauthorised reproduction of Italian cultural heritage in the public domain

1) Ministry of Culture v. Studi d’Arte Cave di Michelangelo:

In 2018, a famous Italian luxury fashion brand posted a video on the internet in which a physical copy (a clone of the statue) of the David—created by Studi d’Arte Cave Michelangelo S.r.l. (Cave)—could be seen wearing a tailor-made high-quality outfit of the brand. The Ministry of Culture sought to have the Court of first instance of Florence issue an interim measure to prevent further use of the image of Michelangelo’s David for commercial purposes. The Court dismissed the petition on the grounds of lack of urgency, as both defendants had removed the contested material from their websites.

However, the Ministry of Culture found out that Cave continued using the image of the David on another website, studidarte.it, still for commercial purposes, and filed a new urgent petition against Cave in 2021. The petition was dismissed and then appealed against it. On 11 April 2022, the Court ordered (see Simone Aliprandi and Carlo Piana’s comment) Cave to stop using the images of the David for commercial purposes, to remove all images of the statue from Cave’s websites, to pay the Gallerie dell’Accademia di Firenze a fine of € 500 for each day of delay in the execution of the preventive order, and it was further ruled that summaries of the order would be published at the expense of the defendants in two national daily newspapers, in two local daily newspapers and on Cave’s Instagram profile and YouTube channel.

The Court concluded that the mere ex-post payment of compensation is insufficient for the legitimate reproduction of a cultural asset. For the use of the image to be lawful, consent is required, following a discretionary assessment of the requested use (and its possible configuration) concerning the asset’s cultural purpose and historical-artistic character. The nature of a cultural asset inherently requires the protection of its image through an evaluation of compatibility reserved for the Public Administration. This evaluation encompasses the right to reproduce the asset and the safeguarding of the asset’s consideration by fellow citizens – its identity as a collective memory of the national community and the territory. Therefore, according to the Court of Florence, this notion should constitute a comprehensive right to the cultural asset’s image (right of publicity).

2) Galleria dell’Accademia Firenze v. GQ:

In 2020, the Gallerie dell’Accademia di Firenze and the Ministry of Culture sued the publishing house GQ (Condé Nast) for the unauthorised use of the image of Michelangelo’s David on the July/August issue’s cover of GQ Italia (see Justus Dreyling’s post on this blog and this interview with Deborah De Angelis). The plaintiff asked the Court to enjoin the use of the image of Michelangelo’s David. The Court promptly issued an order banning the use of the image on the cover of the magazine and prohibited any further digital use of the image.

Eventually, on 15 May 2023, the same Court ruled again in favour of the Gallerie and the Ministry of Culture and condemned the publisher GQ to pay the Galleria dell’Accademia di Firenze two separate amounts: € 20,000 as a concession fee and an additional € 30,000 for the way in which David’s image was distorted for the magazine. In addition, the judge acknowledged the right to the image (which is granted by Article 10 of the Italian Civil Code to physical persons and legal entities), with specific reference to cultural heritage, considering the legal basis for this right is found in Articles 107 and 108 of Legislative Decree No. 42/2004, which directly implement Article 9 of the Constitution(See Eleonora Rosati’s comment on IPKat).

3) Gallerie dell’Accademia di Venezia v. Ravensburger:

On  24 October 2022 (see Deborah De Angelis and Brigitte Vézina’s comment on this blog and Giuilia Dore’s contribution on the Kluwer Copyright blog), the Court of first instance of Venice decided on the lawsuit brought by the Gallerie dell’Accademia di Venezia, a public museum under the Italian Ministry of Culture, against the German toy-making companies Ravensburger AG and Ravensburger Verlag GmbH as well as their Italian branch represented by Ravensburger S.r.l. for the unauthorised use of the images of Leonardo da Vinci’s Vitruvian Man on a series of puzzles. The order enjoined the German company to stop using the image of the Vitruvian Man for commercial purposes, to pay to the Gallerie dell’Accademia di Venezia a fine of € 1,500 for each day of delay in the execution of the preventive order, and it was further decided that summaries of the order would be published at the expense of the defendants in two national daily newspapers and in two local daily newspapers.

4) Uffizi v. Gaultier:

In October 2022, the Uffizi Galleries announced their intention to sue the French fashion house Jean Paul Gaultier for damages that could exceed € 100,000 after the company’s (allegedly) unauthorised use of images of Botticelli’s Renaissance masterpiece The Birth of Venus to adorn a range of clothing products, including T-shirts, leggings, and tops, for the brand’s new line Le Musée. There has not been any news on this controversy, and there is no evidence that a lawsuit has been served (see, Justus Dreyling, Brigitte Vézina, and Teresa Nobre’s post on this blog).

It is clear that a protectionist trend is emerging in line with the approach of the government (for a critical approach, see Roberto Caso’s comment on the Kluwer Copyright blog).

The Ministerial Decree on the minimum tariff for the reproduction of the digital images of the state cultural heritage

Prior to 11 April 2023, the interpretation and practice of art. 108 of CCHL granted cultural heritage institutions discretion to decide whether to adopt an Open Access policy, enabling the use of the digital images of cultural heritage through the use of a Creative Commons licence or Public Domain tools, to promote fair access to and sharing of Italian culture, while supporting the role of cultural heritage institutions in sustainable economic and social development.

In April 2023, however, the Italian Ministry of Culture  introduced minimum fees for commercial reproductions of state-owned cultural heritage, including for works in the Public Domain that all state-owned public museums will have to apply (Decree no. 161 also known as Guidelines). The Decree will have a detrimental effect on the promotion and dissemination of Italian cultural heritage globally, impeding knowledge sharing (see reporting on huffingtonpost.it and repubblica.it). The new guidelines represent a significant setback as they contradict the fundamental principles of public enjoyment and enhancement of cultural heritage enshrined in the Italian Cultural Heritage Code.

The situation in Italy escalated on 14 June 2023, when Senator Marcheschi (Fratelli d’Italia) proposed to punish with a fine between € 20,000 to 60,000 the unlicensed use of cultural objects in the public domain in violation of Articles 107(1) and 108(1)-(3) of the CCHL (as an amendment to the proposal of law on Article 518-duodecies of the Italian Criminal Code, on the destruction, dispersal, deterioration, defacement and illegal use of the physical cultural heritage and landscape). At the session of June 21st, 2023, the amendment was withdrawn, having received a negative opinion because of the costs it would entail to activate the sanctions, but it turned into an agenda for the Government “to consider the advisability of providing for the imposition of an administrative fine of 20,000 to 60,000 euros against anyone who, in violation of Articles 107, paragraph 1, and 108 paragraphs 1, 2 and 3 of Legislative Decree No. 42 of January 22, 2004, reproduces a cultural heritage or markets its reproduction in the absence of or in contravention of the order of the authority in charge of the property.”

A solution for no problem

The flow of income generated from the licensing of images of cultural objects remains more or less unchanged for major museums. Peripheral and smaller museums, by contrast, lament an increase in bureaucracy not supported by the hiring of new staff. The reproduction and dissemination of images of cultural heritage in smaller museums, even for commercial purposes, contributed to the diffusion of culture and the promotion of national heritage.

The discretion that was left to individual museums when licensing images of the objects under their custody, allowed the museum staff to consider different factors: internal costs, whether they already had good quality images not covered by copyright, the promotion of the museum, the valorization of the cultural object, etc. The mandatory application of the minimum tariff stated by the guidelines makes it impossible, e.g. for state-owned museum staff, to permit the free use of images according to the open access principle. In the past, museums and other state-owned cultural institutions could allow the free use also for commercial purposes (as permitted by CC licences and tools compatible with open access) without asking for a concession fee. The discretion previously held by cultural institutions to decide whether to authorise the free use of cultural heritage images has been eliminated.

Instead of creating positions to help under-staffed museums or promoting the preservation of the Italian cultural heritage, the Ministry of Culture has enacted unnecessary restrictions. The imposition of high fixed fees for the for-profit use of images of cultural objects in the Public Domain may result in limiting the exploitation only to privileged classes of individuals, while preventing local communities or “communities of origin” with a limited budget from participating in it. Moreover, the community has not been involved in the decision-making process and has not had a chance to participate in the debate. This scenario is further complicated by the possibility for the licensing administration to deny for-profit uses of images by invoking the “decorum” exception, namely judging the declared use of the image of the artwork as inappropriate. “Decorum” is a very broad, subjective, and undefined concept that contributes to generating uncertainty in this field (see Daniele Mancorda’s contribution).

What is more, creativity is at risk! Today, when using professional photographic reproductions of works in the Public Domain, which are subject to both copyright and the Guidelines, users will face the so-called “tragedy of anticommons” (a term coined by Michael Heller). These works will be used less due to the existence of multiple layers of protection, which are hard to navigate.

The post Tales of public domain protection in Italy appeared first on COMMUNIA Association.

Il nuovo rinascimento [“the new Renaissance”]

We have covered the lawsuits against French fashion label Jean Paul Gaultier for using Sandro Botticelli’s Birth of Venus on a collection and German toy maker Ravensburger for using Leonardo da Vinci’s Vitruvian Man on a jigsaw puzzle on the COMMUNIA blog in the past months. Both Gaultier and Ravensburger were brought to court by the respective museums that host these works in their collections, the Uffizi in Florence and the Gallerie dell’Accademia in Venice, respectively, for violations of the Italian Cultural Heritage Code. According to Art. 106 ff. of the Code, commercial uses of works require the authorization of the cultural heritage institution that has the work in question in its collection as well as the payment of a concession fee – even if that work is in the Public Domain.

More recently, the court of Florence has ruled in favour of the Gallerie dell’Accademia in Florence and the Italian Ministry of Culture for the use of the image of Michelangelo’s David on the cover of GQ Magazine Italy. The cover features a hologram, which, depending on the viewing angle, shows a photographic reproduction of Michelangelo’s statue or a bare-chested, muscular man posing in a similar fashion (see this interview with COMMUNIA member Deborah De Angelis as well as Eleonora Rosati’s post for the IPKat).

Copyright with a glued-on beard

All of the conclusions reached in these cases can be rebutted on the same grounds we’ve explained extensively in previous contributions. The reproduced works are clearly in the Public Domain, that is, they are completely free from any copyright restriction. Their creators Sandro Botticelli (1445-1510), Leonardo da Vinci (1452-1519) and Michelangelo (1475-1564) have all been dead for centuries. Even Michelangelo, the youngest of the bunch, lived long before any concrete notion of copyright ever existed. Yes, the Italian Cultural Heritage Code is an instrument of administrative law. The function of this Section of the Code is so similar to copyright, however, that one must wonder if its raison d’être isn’t simply to serve as a pseudo-copyright that the Italian state can use to generate income off of Public Domain works. When new laws are created to negate the effect of a carefully yet imperfectly-balanced copyright system to justify a dubious revenue model, we must react.

Because in doing so, the Code calls into question the social contract on which copyright is based. Copyright is granted for a limited period of time, allowing creators to extract monetary gain from their works for as long as they are copyright-protected. When a work’s term of protection ends, it enters the Public Domain and, as a rule, becomes free to use by everybody. Carving out Italian collections from this rule hinders access to our common European cultural heritage. The works in these collections belong to all of us in the sense that everyone should have access to them and be able to draw on them to create something new.

But this isn’t just a philosophical issue. It is also fundamentally at odds with copyright law and its intrinsic balance: that protection lasts for a limited time. As Roberto Caso comments on the Kluwer Copyright Blog: “The ex post facto judicial creation of an eternal and indefinite pseudo-intellectual property leads to the violation of the principle of the numerus clausus of intellectual property rights.” More specifically, the Code is incompatible with the spirit of Article 14 of the DSM Directive, which states that reproductions of works of visual art that are in the public domain cannot be subject to copyright or related rights, unless the reproduction itself is an original creative work (see Giulia Dore’s contribution to Kluwer).

Is there a method in the madness?

What is equally egregious is the fact that the Italian cultural heritage code establishes the Italian state as an arbiter to determine whether any given use of a work is appropriate. The idea that a state – more than 500 years after the creation of a work – claims to be able to determine what is an appropriate use of a work is not only frivolous, but dangerous for democracy, freedom of expression and participation in cultural life. There is no need for a state to determine if something is an appropriate or inappropriate use. Leave that decision to creators, their audiences, and to society as a whole, whose members can engage in free and democratic debates.

As a side note: It is even more frivolous if we consider that the Italian Ministry of Tourism runs a campaign full of clichés with a cartoonish Venus as a modern-day influencer — ironically the campaign is called “Open to Meraviglia” [English text in original, which translates into “Open to Marvel”] . To be clear, the Ministry of Tourism is well within their rights to do this, and this is a perfectly fine example of what parody might look like. So why should a public body be allowed but not a toy maker, magazine or fashion creator? These events set a very worrying precedent for artists and creators in Italy, Europe, and all over the world.

While it’s been fun writing about the absurdity of these lawsuits for some time, enough is enough. Italy must repeal this section of its cultural heritage code and ensure that Public Domain works can be freely reused by all.

The post Something (the Public Domain) is rotting in the state of Italy appeared first on COMMUNIA Association.

The defendants are the world-renowned German toy making companies Ravensburger AG, Ravensburger Verlag GMBH and their Italian office represented by Ravensburger S.r.l.. They were brought to court for using the image of the widely popular ​​Public Domain drawing to produce and sell puzzles without authorization or payment of a fee to the Gallerie dell’Accademia di Venezia, where the physical artwork is kept.

A puzzling question

Let’s pause here. Authorization, fee, Public Domain work… These don’t add up. The Public Domain is made up of works that are out of copyright, free to use by anyone for any purpose. The Public Domain is the treasure trove of creative works that inspires us all and upon which all creativity depends. In fact, protecting the Public Domain is so important that in 2019 the European legislator made it explicit in Article 14 of the European Directive on Copyright in the Digital Single Market (CDSM) that non-original reproductions of works in the Public Domain must stay in the Public Domain — no copyright protection arises from the simple act of reproduction of public domain works, e.g. through digitisation.

So, how come the Gallerie could prevent Ravensburger from using an image of the Public Domain Vitruvian Man on its puzzles? How come the court:

• prohibited the defendants from using for commercial purposes the image of the work “Vitruvian Man” by Leonardo da Vinci and its name, in any form and any product and/or instrument, including digital ones, on their websites and on all other websites and social networks under their control;
• ordered the defendants to pay a penalty of € 1.500 to the Gallerie dell’Accademia di Venezia for each day of delay in the execution of the precautionary order;
• ordered the publication of the order in extracts and/or summaries of its contents by the Gallerie dell’Accademia and at the expense of the defendants in two national daily newspapers and in two local daily newspapers?

The answer: The Italian Cultural Heritage Code

The answer lies with a particular piece of Italian law: the Italian Cultural Heritage Code (Legislative Decree n. 42/2014). According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.

Incompatible with Article 14 CDSM

Be that as it may, the Cultural Heritage Code’s “authorization+fee” system generally deals a severe blow to the Public Domain in Italy, and alarmingly, beyond its national borders — Creative Commons calls attention to this in its Global Open Culture Call to Action to Policymakers. It is in fact completely at odds with EU legislation protecting the Public Domain: Article 32, quater of the Italian Copyright law (Law n. 633 of April 22nd, 1941) clearly conflicts with the intent of the European legislator. That is because Article 32, quater transposes Article 14 CDSM but limits its effect to the application of the Italian Cultural Heritage Code. We at Communia have strong reasons to believe this is incompatible with the letter and the spirit of Article 14.

Even in cases where European legislation does not in itself have direct effects or applicability in the national legal system of the Member States, it must always represent an indispensable guiding parameter for national courts, which are called upon to interpret national law in the light of European legislation (i.e., the obligation to interpret it in conformity). Further, there is a general prohibition for Member States to allow a national rule to prevail over a contrary EU rule, without making a distinction between earlier and later national law.

Not the only case

The Vitruvian Man is sadly not an isolated case. Just a few months ago, we commented on the one opposing the Uffizi Museum to Jean Paul Gaultier, where the defendant, a French fashion designer, used images of another Renaissance masterpiece, Botticelli’s Birth of Venus. These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.

Quite curiously, even though the precautionary order should be executed with specific regard to the Vetruvian Man’s puzzle, it is interesting to see that on the defendant’s website one can still  buy puzzles reproducing “La Gioconda” (the Mona Lisa) and “The Last Supper” by Leondardo da Vinci; “The Kiss” by Hayez and another “The Kiss” by Klimt and many other monuments, works of art, as well as images of nature and animals.

Liberalise it

Is legal action the right way to deal with this issue? Court proceedings are expensive and will not change reality. A different approach (compatible with an open access policy and the protection of the Public Domain) that liberalises the faithful reproduction of cultural heritage in the Public Domain would be more supportive of tourism, the creative industry and “the benefit of civil society in general. Other than being compatible with the principle stated by Art. 14 of the CDSM Directive.

The post The Vitruvian Man: A Puzzling Case for the Public Domain appeared first on COMMUNIA Association.

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

Cultural heritage laws should promote the public interest

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

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

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

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

Users should be trusted

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

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

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

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

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

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

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

Today, the A2K Coalition is launching its website with demands for education, research and cultural heritage.

Access to knowledge is not enjoyed equally across the world. Crises, including the COVID-19 pandemic and the climate emergency, highlight the barriers that the current copyright system poses for those who learn, teach, research, create, preserve or seek to enjoy the world’s cultural heritage.

The international copyright system has failed to keep pace with advancing technology and practices, including for digital and cross-border activities. Consequently, we have been unable to seize the possibilities that exist to promote access to, and use of, knowledge to fulfill human rights and achieve more equitable, inclusive and sustainable societies.

The members of the A2K Coalition represent educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities around the globe. Our individual missions are varied but we all share a vision of a fair and balanced copyright system.

In addition to our mission statement and demands, the A2K Coalition website features evidence to substantiate our claims. Three maps track the state of copyright limitations and exceptions for online education, text and data mining, and preservation across most countries in the world. Currently, only the text and data mining map is fully implemented, but the maps for online education and preservation will follow soon. The website is available in English, French and Spanish language versions.

We invite you to explore the A2K website and spread the word about the A2K Coalition.

The post Global Civil Society Coalition Promotes Access to Knowledge appeared first on COMMUNIA Association.

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.

Judicial developments are much needed to provide further clarity as to the scope of users rights in Europe. There’s still legal uncertainty as to whether certain public interest activities are permitted under existing exceptions and limitations to copyright,  how users can assert their rights on online platforms, whether (and how) users can enforce their rights against contracts and technological measures, and what’s the status of the public domain. The implementation of the new Copyright Directive, particularly Article 17, will bring further interpretation challenges. 

Whether and how much Communia will be able to engage in strategic litigation in the next decade is still to be determined, but we decided to take the first steps in this realm, by supporting a court proceeding that is aimed at challenging an abusive practice that is eroding the public domain: that of claiming exclusive rights overs tridimensional digitizations of public domain artworks.

The case against Musée Rodin

In 2018, artist and open access activist Cosmo Wenman filed a freedom of information request with the Musée Rodin in Paris to access the 3D scans of Auguste Rodin’s sculptures (all of which are in the public domain). When the museum refused to comply, Mr. Wenman appealed to the French Commission on Access to Administrative Documents (CADA).

In response the CADA confirmed that these 3D scans in question are administrative documents and are subject to public disclosure, under freedom of information laws, and therefore the Musée Rodin is required to give public access to them. 

Despite this opinion, Musée Rodin did not provide Ms. Wenman with access to the materials and, in reaction to that inaction, Mr. Wenman has filed a suit against the museum in the Administrative Tribunal of Paris (you can read more about the process, including the court files, here), which we have now joined as a third party together with our friends from Wikimedia France and La Quadrature du Net.

Protecting the public domain

The public domain belongs to all and is often defended by no-one. Mr. Wenman’s request can make an important contribution to counteracting attempts to exert exclusive control over public domain works by claiming exclusive rights in technical reproductions of the works.

As we stated in our Public Domain Manifesto, we believe that having a healthy and thriving public domain is essential to the social and economic well-being of our societies. By ensuring that everyone has access to our shared culture and knowledge and that all members of society can build upon it, the public domain plays a capital role in the fields of education, science, cultural heritage and public sector information. 

In a time where, for the first time in history, we have the tools to enable direct access to most of our shared culture and knowledge, it is important that the public domain is actively maintained so that it can continue to fulfill this key role of facilitating innovation and cultural participation for the benefit of the entire society.

The post The public domain belongs to all and is often defended by no-one: we want to change that appeared first on COMMUNIA Association.

We believe that cultural policies, to be fit for their purpose both today and in the years ahead, need to be based on an updated vision of the role of digital heritage for Europe’s societies. We need strategies that support the creation of social, cultural, and economic value based on Europe’s heritage. This is especially true in 2020, when during the Covid-19 pandemic the value of digitised cultural heritage for our societies became clearly visible. Yet it was also a time when many of the cultural heritage institutions faced a crisis.

We need an approach to cultural heritage that recognizes its value to the society and ensures the resilience of cultural heritage institutions and the cultural sector.

Below you will find highlights of the issues that we raise in our response. You can also download the full response as a PDF file.

From the Digital Single Market to Shared Digital Europe. We need a policy framework, which acknowledges that digital and cultural policies should achieve more than just economic outcomes.

A broad definition of cultural heritage. European cultural policy needs to adopt a broad view so that it covers born-digital content, user-generated heritage or contemporary content stored in archives of public broadcasters.

Europe needs public, cultural infrastructure. Building on the success of Europeana, Europe should explore how to further develop public infrastructure that ensures availability, access to, and the possibility of reuse of cultural heritage.

From preservation and access to digital transformation. Policy goals cannot be limited to just preservation and providing access. Success will be achieved only if heritage is accessed and used.

Implementation of the Copyright in the Digital Single Market Directive and the need for more harmonisation of European copyright law. The provisions of the DSM Directive come in response to more than a decade of calls from Europe’s cultural heritage sector to adapt the EU copyright rules to the realities of the digital environment. It will now be key to ensure that these provisions will be properly implemented.

Improving rights information infrastructure. Much of the copyright issues faced by cultural heritage institutions are rooted in a lack of easily available and reliable rights information. The European Union should invest in the creation of trusted repositories. EUIPO could possibly maintain a  comprehensive repository for rights information.

Retract the Orphan Works Directive. More than 5 years after its entry into force it is abundantly clear that the 2014 Orphan works Directive is a failure that did not have any meaningful impact on the digitization of cultural heritage in the EU.

The post Our response to the EC consultations on digital technologies and the cultural heritage sector appeared first on COMMUNIA Association.

In the consultations, the European Commission is referring to the “Recommendation on the digitisation and online accessibility of cultural material and digital preservation”, from 2011.  Almost a decade has passed since then, and large amounts of heritage have been digitised. The term “digitisation” has been replaced with the idea of digital transformation. At the same time, barriers and challenges to access and reuse still remain – heritage in digitised form is a potentially underused resource.

During the salon, we want to ask representatives of key stakeholders from the heritage sector: what are the effects of digital technologies on the cultural heritage sector, and how should we shape them with appropriate policies? With regard to copyright regulations, we want to discuss wheter the reform went far enough, and whether it struck the the right balance? We also want to consider whether any other policies are needed for Europe to fully benefit from digital heritage?

Join us for a debate moderated by Alek Tarkowski (Communia / Centrum Cyfrowe), with the participation of Paul Keller (Communia / IViR), Ariadna Matas (Europeana), Hessel van Oorschot (Open Nederland / Tribe of Noise) and Brigitte Vézina (Creative Commons).

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 17th of September, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

The post Communia Salon 2020/4: Which digital policies work for cultural heritage in 2020s? appeared first on COMMUNIA Association.

In our paper we defend that, in order to transpose education, research and other public interest activities from public locations to private homes during government-imposed lockdowns, we need to be able to rely on the understanding that fundamental rights can, in exceptional situations, function as an external limit to our national copyright systems.

The main conclusions of our paper are the following:

First Conclusion

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.

Second Conclusion

In Member States that have education, research and public lending exceptions in place that follow closely the wording of the above-mentioned EU exceptions, 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. 

Third Conclusion

In Member States that do not have education, research and public lending exceptions in place that follow closely the wording of the above-mentioned EU exceptions, 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.

If, due to the absence or insufficiency of legislative action, the national copyright law has no flexibility to temporarily adjust to new modes of living imposed by emergencies such as the COVID-19 pandemic, such law cannot be deemed to have properly internalized the fundamental rights enshrined in the EU Charter of Fundamental Rights. Applying fundamental rights as an external limit to the exclusive rights of authors and rightholders is, thus, the only legal mechanism available to ensure the effectiveness of EU law. In those circumstances, resorting directly to constitutional laws or other rules that protect fundamental rights would not conflict with the CJEU case-law, provided that national courts do not extend the scope of the above-mentioned EU exceptions.

This solution should be a patch, not a fix, to ensure the balance of interests foreseen by EU copyright law.

Fourth Conclusion

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. 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.

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, in our paper we recommend the Commission to issue guidance to clarify that our conclusions are compatible with the CJEU case-law. 

The full policy paper can be viewed online or downloaded here.

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