The Poles and French will probably fight for the next few centuries over whether Frederic (or Fryderyk) Chopin was of Polish or French nationality. Both nations view Chopin as a national treasure, and preserve his memory and heritage. And there is no doubt that in both countries copyrights to his work have expired. Contrary to the case of Little Prince, there is absolutely no doubt about this, as Chopin died almost 170 years ago. This is why we were shocked to learn that the National Institute of Fryderyk Chopin (NIFC) not only issued an ordinance protecting his name and public image, but also filed an application to register two trademarks with the European Union Intellectual Property Office (EUIPO) for all possible classes of products and services using the word “Chopin”. With that, no more “Chopin Hotels”, “Chopin chocolates”, composition of flowers named “Chopin bouquet” or any other product without a license, is possible. 

First, let’s understand the facts. The EUIPO database holds 26 trademarks and 4 designs (some registered, some refused or rejected) with the “Chopin” element. Two of the trademarks have been filed on behalf of the NIFC for a wide variety of products and services. Also, NIFC has drafted a long list of terms and conditions users will need to agree to in order be able to use their Chopin trademark. Applications are reviewed by a board and if approve – the licensing fees are imposed. The board sets the rules to which a  license may be obtained for use of the trademark. There are 8 applicable licensed uses, including “music with patriotic messaging”, “European high culture”, “high esthetical value”, and “mastership or highest quality.”

NIFC is quite clear on the rationale standing behind these procedures. It states in the preamble to the Ordinance (essentially, the “terms of use”) that it is leveraging the “possibilities created by law” to protect the name and public image of Chopin. It is also stated that the use of Chopin’s name and public image should build positive associations, and that any depreciation of Chopin’s heritage should be avoided. We ask a the relevant question: should exclusive intellectual property rights be used by public entities as a tool to protect Chopin? Or should Chopin’s name and image – like his incredible works of music – reside in the public domain for enjoyment and creative re-use by all?

In this case, the NIFC approach shows how the idea of exclusive rights to intellectual property can easily be misunderstood. The traditional rationale behind intellectual property rights is that they can give to authors—for a limited time—exclusive rights to the economic interests in their creative works. IPRs are not meant to be used to control—from a moral or historical point of view—access to and use of creative works. Intellectual property rights should not permit rightsholder to dictate whether or how their creative works can be used in society, such as the naming of products after a famous composer like Chopin. Instead, there are alternative legal mechanisms that regulate this type of activity, such as personality rights. It would be improper to permit a governmental institution to control the name or likeness of a long-dead person (no matter how famous) through the application of intellectual property rights.  

Our goal with this post is not to argue that any type of limitation on the use of public domain works (or their authors) is improper. For example, specific legal instruments such as moral rights can be appropriate if defined clearly in the law. However, government bodies shouldn’t be tempted to flex the muscle of the IPR system to control the types of uses of Chopin’s name and legacy.

The ongoing debate about how to portray Chopin has an important element in common with the current discussion over the freedom of panorama and limitations and exceptions to copyright: they urge us to contemplate the scope of freedoms available to us in our society. Our experience has shown us that there corporations, interest groups, and individuals who continue to restrict access to information and decrease civic and cultural freedoms by attempting to leverage the sharp blade of IPRs. We need to remain vigilant in our defense of the public domain.  

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The Observatory on IP infringements, a part of the European Union Intellectual Property Office (EUIPO, formerly OHIM), has bravely undertaken a project of explaining copyright to citizens in all European countries. EUIPO devised a set of 15 questions on the issue with substantial input from its civil society stakeholders. The questions begin at such fundamental inquiries like “what is copyright?” but also encompass daily copyright struggles of Europeans going online such as “can I use a picture of my favorite celebrity as my social media avatar?”.

A fun time with the questions

The effort and debate put into what should be asked in the FAQ forms, next to the actual phrasing, was already a symptom of how far the European copyright system has drifted from everyday life. You don’t want the questions to be too general because then it doesn’t help the citizens. However, you also can’t be too specific because every case and every action is different. You want to minimise the risk that people take bad decisions in cases that seem the same to them, but can have very different legal consequences. For example with whom you share copyrighted material often matters in the legal vs. illegal debate  – in some cases your immediate circle of family and friends can be allowed, but not public sharing. People do not spend a nanosecond thinking about this legal distinction while sharing.

But wait until we get to the answers

If this makes you think working on these questions borders on the ridiculous, believe me, the answers are where the copyright fun really starts. EUIPO cannot give answers to these questions from within its own expert capacity.  Each member state answers the questions somewhat – if not entirely – differently. This is why EUIPO had sent the questions to national copyright experts and subsequently had them checked by the respective public sector stakeholders of the Member States. Time, taxpayers’ money – all that times 28.

Since the questions were drafted in one of the stakeholders’ working groups at EUIPO, the answers went to the group members in a consultation process. Chances are none of the WG members – civil society, representatives of governments and of creative industries – have the capacity to go through it all with their in-house expertise. The civil society members – BEUC, Communia, EDRi, Wikimedia – really wanted to chip in and verify as many country FAQs as possible. But we can only rely on our members’ willingness and capacity to take a voluntary look at the FAQ spreadsheet that printed is basically 4 square meters large.

The FAQ on Copyright for Europe spreadsheet at 20% – 9 out of 28 legal systems described are visible. There are 420 answers to 15 questions

It became clear very early that the check was needed. Explanations that should be digestible for an average Joe are sometimes confusing for lawyers. Some experts who drafted the answers did a great job, but some were apparently misinformed or biased, for example by defining the grey areas of use as illegal. Which, regrettably, with the current state of the copyright is probably the safest legal advice: if you want to stay on the legal side of copyright, when in doubt, don’t do anything. Finally, some experts gave some response but didn’t really answer the question asked.

In order to make the best out of the broken system, civil society got together to look for people, who can either do it within their job descriptions at digital rights’ organisations all over Europe or out of the activist call of duty. Meanwhile, public authorities should be responsible to accurately inform citizens what the current state of regulation is. When the consultation is up, EUIPO will carry out our remarks to the member states’ relevant bodies and the chances to include our comments are basically 50/50 – either they will do it or they won’t.

The joke is on us

In all fairness, EUIPO is also falling victim to the circumstances: 28 systems and no better way to do this than push the questions down to external experts and member states, and then sideways to the stakeholders that actually care.

The real problem behind the FAQ process is that the EU is not motivated enough or not that courageous to finally put an end to the ridicule that is not funny anymore – the 28 separate copyright systems that make people wonder if they can use the logo of their favorite sports team for their social media self-expression or not.

Should that miracle of harmonisation happen, EUIPO could devise one set of Q&A instead of 28 that wouldn’t take a year to put together.

To take it even further, if the harmonised and unified copyright were also updated to the contemporary concerns and technologies, it would include a bold set of exceptions and limitations that would enable people to take advantage of flexibility and private sharing as an everyday no-brainer and not a modern version of a ‘crime and punishment’ dilemma. It would also make many of the questions in the set obsolete and irrelevant.

As far as this dream goes, we now should get back to mining the 28-headed system. Also the promise of the Digital Single Market seems to be more and more elusive with dangerous ideas such as additional publishers’ rights and limiting the freedom of panorama. Until Europe comes together on both national and EU levels, we can use laughter as the coping mechanism.

Anna Mazgal is the Managing Director of the Polish Centrum Cyfrowe, a think-and-do tank turning society digital. Anna is also the COMMUNIA representative at the Observatory of IP Infringements at EUIPO.

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