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.

No balance between anti-circumvention prohibitions and users rights

The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.

According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions:

The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)

When anti-circumvention laws were drafted at the international level, they were expected to protect TPM insofar as they restricted acts not authorized by rightsholders (see article 11 of the 1996 WIPO Copyright Treaty). In the EU these laws are completely blind to the intent of the users: users are prevented from circumventing technological measures regardless of whether their aim is to infringe copyright or to exert their legal rights under the copyright exceptions.

Essentially, technology controls law, with little or no recourse for the user. This situation is unfair and costly to users and society, who lose out on the opportunity to exercise the rights that should be guaranteed to them. According to the above-mentioned study, the interaction between the use of TPM and available exceptions and limitations causes inefficiency of the current EU copyright framework structure and is, thus, a source of cost incurred by citizens, society and stakeholders (see pg. I-47).

How TPM is blocking the use of works under copyright exceptions

We’ve attempted to find data on the daily impact of TPM on users rights. Unfortunately, as with many other aspects related with the impact and effectiveness of the InfoSoc Directive, there is not much data available. Or at least not that we know of.

Fortunately, the European Commission’s 2016 impact assessment study, on digitally supported education and training practices, includes an analysis of the (rather dramatic) effects of TPM on users. In the study, technological restrictions were characterized as the most frequently encountered copyright-related obstacle by users of digital works in education: 31,2% of educators and 36,9% of learners stated that they “are not able to access, download, use or modify a digital work because of technological protection”.

More than one third of the educational community surveyed said they cannot access and use—at least not immediately (when they need it)—works protected by technological measures. So even if we continue advocating for better educational exceptions, if we do not review the current anti-circumvention provisions, a robust educational exception will not make the life of teachers and students easier. The same can be said of any other copyright exception where TPM can inhibit or block altogether the access of prospective beneficiaries.

Mechanisms for using TPM-protected works are lacking in 20 Member States

Under the InfoSoc, Member States are obliged to ensure that TPMs do not prevent users from benefiting from copyright exceptions. Data on the national implementations of the EU anti-circumvention rules laid down in articles 6 and 7 of the InfoSoc Directive is limited, but we know that the mechanisms available to end-users to benefit from copyright exceptions varies widely between Member States. Worse yet, apparently the majority of EU countries do not even have such mechanisms in place.

In the 2016 study mentioned above, on the impact of the European copyright framework on digital education, local copyright experts said they “have not been able to identify clear mechanisms which may be activated for using TPM-protected works under exceptions and limitations” in most countries. The study is not referring to the use of works under specific educational exceptions, but under any copyright exception.

Mechanisms available to end-users to enforce their rights to use TPM-protected works were only identified in 8 EU countries, which means that 20 EU countries are doing nothing to ensure that their teachers, librarians and citizens can enjoy their rights under national copyright exceptions.

Even where such mechanisms exist, they can be very burdensome. In Germany, Spain and Sweden it is necessary to go to court to defend practices that should be guaranteed in order to exercise exceptions to copyright. In France, Italy, Lithuania, Latvia, Norway, Slovenia, and the United Kingdom, it is necessary to file a complaint with the relevant authorities or open a mediation procedure (see Table 7, pg. 63 of the 2016 study). Of course, this all takes time and effort, and thus is not providing the necessary access to users.

Circumvention must be allowed, and some Member States already know it

The European Union has distorted the anti-circumvention principles completely. As a result, it does not matter if the user has a right to use a TPM-protected work under a copyright exception; the user will only be able to exercise such a right if she also has the right to require the technical means to access the work. In the words of the authors of the 2015 study, commissioned by the Parliament:

(T)echnological protection and a newly created access right could progressively replace copyright law and, even more important, prevail and restrict copyright exceptions and limitations. (pg. I-82)

It is clear that the current EU solution for the protection of TPM limits the effectiveness of users rights, and therefore, as we argue in our policy recommendation #7, “circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works”.

Some Member States already decided to deviate from the anti-circumvention rules contained in the InfoSoc. For instance, Poland never implemented such rules, and Portugal just revoked them, after learning of the constant obstacles faced by users and hearing from local representatives of rightsholders that they did not have the technical means to ensure that local users could enjoy their rights under the exceptions and limitations.

So, MEPs what are you waiting for?

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