You see, some of the works created by Daniel Pinheiro rely heavily on copyrighted works that do not belong to him. yes. i am lonesome tonight. consists of a black screen in which the words “yes”, “i did”, “i’m sorry” and “i didn’t” appear as answers to the questions posed by Elvis Presley in the song “Are you lonesome tonight”, composed by Lou Handman and Roy Turk. Elvis sings “Are you lonesome tonight” and Daniel whispers “Yes”. And so it goes:

Do you miss me tonight?

Yes.

Are you sorry we drifted apart?

Yes.

Could fair use save the lonely artist?

Daniel’s intervention is minimal, from a quantitative point of view, and he uses the source work in its entirety, which would weigh against fair use, in countries where fair use exists. Yet I doubt any art curator or critic would not render it as a new and unexpected use of Elvis’ musical performance. In other words, the transformative character of yes. i am lonesome tonight. could perhaps be enough to consider this Visual-Art work a fair use, even when all the remaining statutory factors (such as the amount of the source work used) would traditionally weigh against fair use.

Unfortunately for Daniel, he cannot attempt to sustain that his use of the protected lyrics, musical composition, performance and recording is fair in Europe, because we do not have fair use in Europe. Nor do we have an exception or limitation to copyright that would allow transformative uses of copyrighted materials for artistic non-commercial purposes.

We could have it in the near future, if there was political will, since we are supposedly reforming our copyright laws with the aim of adopting them to the digital age. But the prospects of having the existing proposals on user-generated content exceptions turned into law are currently very low. The majority of EU lawmakers are convinced that people like us, who advocate for fair and balanced laws to protect users rights and not only rightholders rights, are either bots or heralds of the big platforms.

What happens to the creators turned into users?

In the highly polarized debates around copyright reform, the voice of the creators is replaced by the voice of the traditional content-producing industries (music, publishers, newspapers), platforms are just free-riding on content produced by others, and users are at best portrayed as amateur creators. Rarely the profissional creator is taken into consideration, and creators-turned-into-platform-users (such as visual artists who rely on social media platforms as their main distribution platform) are simply not heard of.

yes. i am lonesome tonight. has less than one hundred views on YouTube. The numbers were more or less the same on Vimeo. You would wonder who cares about it, and who bothers about removing these videos due to alleged copyright infringement. Well, the International Federation of the Phonographic Industry does!

I received an email from Daniel a couple of weeks ago because his video had been taken down from Vimeo and he was expecting the same to happen on Youtube, and he wanted my help – as a friend, as a copyright expert – to devise an argumentation against the removal. I recall that a short while ago I collaborated with Daniel and others on the creation of Copywrong, a performance-as-tool, where Daniel attempts to execute a performance by Bruce Nauman, but never does, because I  – performing the frustrating role of the lawyer – keep interrupting him and preventing him from doing it, due to copyright concerns.

My first thought when I saw Daniel’s video was that it was too good to be on social media platforms. It deserves to be in a gallery, I replied to Daniel. Indeed, I am not used to seeing these videos on social media. I mean, there are amazing things on social media, but when we talk about user-generated content, on content that relies on other people’s works, what stays there for long is the viral video of someone doing humiliating or funny things. I guess the platforms will fight to keep those videos, as they generate revenues. As for the less-than-one-hundred-views videos, the crappy ones and the ones that are pieces of art, no one will protect them. Nor the traditional industries, nor the platforms themselves.

I’m certainly not equipped to discuss how do we finance the Arts and the artists. But those who are should reconsider adding their voices to this debate, because it seems highly unfair to have the market dictating what can stay online and treating creators of user-generated content unequally. The lawmaker could easily intervene, through the implementation of a balanced copyright system, which would offer creators at least the chance to discuss if their (re)creations are fair and should remain accessible to the public or not.

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The Canadian fair dealing copyright exception

The fair dealing copyright exception is a users’ right that allows for the use of a material that may infringe copyright, but only if it is “fair”. The Canadian Copyright Act limits fair dealing to the purposes of research, private study, education, parody or satire, criticism, and news reporting. In 2004, the Supreme Court of Canada provided 6 factors to determine “fairness”. Applied on a case by case basis, these factors are the purpose, characteristics, and amount of the dealing, and any available alternatives, the nature of the work, and the dealing’s effect on the work in the market on the copyright owner.

In 2012 the Supreme Court of Canada expanded the application of fair dealing to educational purposes. They ruled that copying short excerpts of copyrighted materials is reasonably necessary to carry out the purpose of research and private study. Even in an educational context, fair dealing allows for no more than 10% of a copyrighted text to be copied. The educational institution must have legal access to the initial copy of the work in order to use the fair dealing exception. However, the Copyright Act includes education exceptions in addition to fair dealing (educators can choose whichever happens to be more advantageous for their purposes).

The fair dealing provision under the Canadian Copyright Act is similar to “fair use” exceptions in other jurisdictions such as the US, Israel, the UK, and South Korea. Canadian fair dealing differs from US fair use in that it has a closed (but flexible) list of purposes to which it applies. Israel allows for up for 20% of a book to be copied under fair use. The Australian Law Reform Commission stated that copyright must leave breathing room for new works and productive uses that use other copyrighted material — a goal that can be achieved through fair use.

The European legal landscape is currently an inharmonious mix of exceptions. EU law gives Member States the option of creating education exceptions or limitations, but each Member State has implemented these differently (or not at all). For example, the Estonian education copyright exception is broad in scope and application, while Austria’s are much more restrictive.

The fair dealing myth

There is a myth going around that fair dealing destroyed the Canadian publishing industry. However, the challenges facing the publishing industry are the result of a complex, changing digital world — not fair dealing. The facts are that educational institutions have increased their spending on copyrighted materials alongside fair dealing, publishers profit margins have increased (even in education divisions), and licensing continues to be the foundation of access between publisher and user.

The Canadian fair dealing doesn’t provide enough rights for educational institutions to fully utilise the materials, meaning licensed materials continue to be necessary. At the University of Guelph, fair dealing accounts for only about one fifth of course e-reserve use. The majority of their use is comprised of site licences, open access, and transactional licences. The University of Guelph’s experience (similar to other universities’) demonstrates that fair dealing does not replace licensing — it only complements the educational experience.

The changes sustained by the publishing industry since 2012 are actually due to evolving use and purchase patterns, not the 2012 inclusion of education in fair dealing. Students and teachers are turning more and more to strictly digital use and libraries are purchasing the bulk of their new materials in digital form. Universities are increasingly opting to buy licences from alternate sources rather than purchase large packages of copyright materials from copyright collectives such as Access Copyright. But these changes are not hurting the industry, only changing it. Canadian publishers are reporting increases in digital revenue. Similarly, fair use has not stopped the US educational publishing industry from thriving.

Lessons to be learned

Provided fair dealing exceptions can keep up with technological changes, they offer a flexible approach to balance users’ and creators’ rights. The Canadian example allows courts to decide what constitutes fair dealing for any material, medium, and method of use while maintaining flexibility. This is much better than having legal concepts determined by rightsholders through license agreements, which is what we have been seeing in Europe. This is what makes Canada’s approach stand out – decisions about the scope and application of the exception are ultimately in the hands of the court, not rightsholders. In the European Union context, giving courts the discretion to make these decisions will lead to increased uniformity in access to education across the EU.

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This conception is problematic on a number of levels. For one it is clear that creators benefit from user rights that ensure that users have a basic level of access to culture through educational systems and via public institutions such as museums and libraries. On the other hand users benefit from the exclusive rights granted to creators as they incentivise the very production of culture and knowledge that they want to access.

A more fundamental challenge to this general understanding of copyright is posed by the fact that the roles of users and creators are not mutually exclusive,  but overlapping. Many creators are also users of copyrighted materials and the other way around. The technological development of the past two decades has contributed to this blurring of the boundaries between creators and users. Digital technologies greatly facilitate both the creative re-use of existing works and the distribution of the resulting new works. This development has resulted in the emergence of the (somewhat nonsensical) category of “user generated content” and concepts like the “prosumer“.

These concepts deal with users becoming creators, and there are relatively straightforward answers to the challenges posed, such as the need to introduce an exception for user generated content in the EU copyright framework that we have been advocating for. But there is another more interesting side of the coin: creators becoming users. While it is true that creators have always appropriated the works of those authors who came before them, these dynamics have been turbocharged by the digital revolution. Creators have entire libraries of content at their fingertips, and the tools to manipulate, incorporate and build on existing works are becoming increasingly sophisticated. These are exciting times to be a creator, but this new reality also brings creators into contact with the limitations to their creative freedom imposed by copyright law.

The Queensland University of Technology (QUT) has just published a new study that examines “the reuse practices of Australian creators” that concludes that copyright law can just as easily act as a deterrent to creation than as an incentive for it. A summary of the study published on the conversation notes:

Interviews with 29 Australian creators, including documentary filmmakers, writers, musicians and visual artists, sought to understand how they reuse existing content to create. It considered issues such as whether permission (“licences”) had been sought to reuse copyrighted content; the amount of time and cost involved in obtaining such permissions; and a creator’s recourse if permission was either denied or too expensive to obtain.

For the majority interviewed, seeking permission to reuse copyrighted content – for example, as snippets of music or video in films, or long quotes in written works – was a source of great frustration and confusion. The process was variously described as “incredibly stressful”, “terrifying” and “a total legal nightmare”.

Problems mostly centred on time delays and financial expenses. Creators found that the paperwork required to request permission was often long, complex and not standard across publishers and other rights-holder bodies. Many waited months for a response to a request; some never received one at all. Many reported feeling ignored and disrespected. […]

Avoiding and abandoning projects were common reactions to the restraints imposed by copyright law, although a very small number of creators proceeded anyway, hoping to “fly under the radar”. […]

Ideas were filtered out early at the brainstorming stage because they were “too risky” or licensing would be “too expensive”. Some people avoided entire areas of creativity, such as appropriation art, music sampling or documentaries about music or musicians, because it was all just “too hard”.

This makes it pretty clear that ratcheting up copyright protection in response to the changes brought by the digital revolution is not in the interest of creators (it may very well be in the interest of big rightsholders such as publishers, record companies and film studios). Unfortunately this is exactly what is on the table in Europe right now:

Instead of examining how we can empower creators without further restricting users, the current copyright reform proposal seems primarily concerned of preserving the business models of big rightsholders. Given this it should not be a big surprise that more and more creators are starting to voice their opposition to the plans presented by the European Commission.

Copyright plays an important role in enabling creation and ensuring the livelihood or all types of creators, but as the QUT research shows once again, this does not mean that creators automatically benefit from ever stricter copyright rules. 20 years after the start of the digital revolution, it is time to have a serious conversation about this.

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A quick reminder where we are with the copyright reform process in Brussels: the key vote in the JURI committee is continuously extended, and currently is planned for January 2018. The date should be seen as tentative. In the meantime, one more committee – the civil liberties committee LIBE – will make it’s vote in late November (but with a sole focus on the controversial article 13, the content filter article). As we await decisions to be made in the European Parliament, a proposal from the Council, prepared by the Estonian Presidency, has recently surfaced. Unfortunately, it spells one more step towards the licensing chasm for the educational sector.

Enter Extended Collective Licensing

The proposal includes a completely new chapter on “Measures to facilitate collective licensing” – and in it, a single article on “Collecting licensing with an extended effect”. In the Commission’s proposal, extended rights licensing is proposed as means of solving issues around making available out-of-commerce works by heritage institutions (see our previous analysis on the relationship between the new article and the commission’s proposal here) . But let us remember, that extended rights licensing schemes present in Nordic countries for educational uses are also the reason that a carve-out mechanism has been included in the article on the educational exception. As a reminder, Commission has proposed that Member States could “subject the application of the exception or limitation … to the availability of adequate licenses”. It is a clause that we have been criticising during the last year, together with 34 organizations.

The new article, proposed by the Council, serves the purpose of establishing EU-wide legal framework for extended rights licensing by collecting societies. In practical terms, it should be read as an invitation for Member States to adopt such schemes. And once these are in place it’s quite obvious what choice States will make regarding “application of the exception”.

Do not export ECL for education, export the Estonian educational model!

Commentators have been wondering, why Estonia, which fancies itself as a “digital nation”, is supporting during its Presidency copyright proposals that will hinder modern digital economy and society. For example, article 13 – the content filter article – which might break open communication based on online platforms.  The same can be said about education. Estonia, like most Nordic countries, has an impressive educational system. It also has a robust educational exception – the best one in Europe, in our opinion – Estonia scored highest on our copyright for education barometer. No one has provided an answer to this question? Does Estonia want to join the “Nordic copyright for education” club, and replace its exception with an extended rights licensing system? We sincerely hope that is not the case.

We are not against extended rights licensing as such. We share the view that it is a good solution for heritage institutions dealing with out-of-commerce work – another area that is being addressed by the new Directive. Yet a model that works in the heritage sector will not necessarily be a good fit for education. Heritage institutions have only recently – with the advent of digitisation – dealt with the issue of widespread use of works from their collections. In education, there’s a long history of broad use of copyrighted works for educational purposes. Heritage institutions are debating how to make out-of-commerce works available online – there is no comparable debate in the educational sector. It is important not to treat extended rights licensing as a one-fits-all solution – and this seems to be the case in the current Council proposal.

It is not just ECL that is the problem

The proposal includes several other changes that are harmful for the education sector. New language in recital 16 – one that addresses the scope of the exception – strengthens a concept already present in the Directive, that the educational exception should in most cases apply just to excerpts. This is an idea that kills the exception – try teaching students anything based just on half of Hamlet.

Furthermore, looking beyond article 4 – the one that concerns the new educational exception, there are other issues that should worry educators and educational institutions. There is still risk of a new “link tax”, that might force educational platforms to pay money to press – and maybe even scientific publishers. And, most importantly, the content filter will hurt educators publishing content on social media platforms.

Things are not looking good. If you want to help us fight for better copyright for education, please join our coalition. Regarding the content filter, please join the Create.Refresh campaign. And you can follow our blog to get an overview of the rest of the copyright reform process.

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Like almost all nations, education is crucial to the future economic and social well-being of Australia. These are exciting times for education, but the benefits of the digital era will not be fully realised in our classrooms unless greater flexibility is introduced into our copyright laws. The rules around copyright were designed in the age of the photocopier; these are not working in the age of the iPad and the 3D printer, and are holding back innovation in schools.

The current system isn’t working

Copyright reform is a significant issue for Australian schools, as Australia’s outdated copyright laws currently stand in the way of teachers using the most modern teaching methods in the interests of Australian students. For example:

• The copyright rules are different for printed materials and digital teaching methods: current regulations stop teachers from using copyrighted material in online exams because the law says that exceptions to copyright for education apply to hard copy exams only.  Similarly, teachers can write a quote from a book on a blackboard with chalk for free, but a licence fee applies when teachers write the same quote on an interactive whiteboard.
• The educational statutory licences penalise Australian schools for using digital technologies, as giving students access to content using digital technology can be up to four times more expensive than hard copy technologies. For example, printing a hard copy to hand out in class is one remunerable activity; providing the same information in digital form can involve as many as four remunerable activities.
• Modern teaching and learning methods such as MOOCs are transforming the way that education is delivered, but Australian copyright laws limit the ways that schools can take part in this. The Copyright Act does not permit these types of activities. By definition, MOOCs are open; i.e. MOOC courses are not confined to students enrolled at a particular educational institution. Neither the statutory licence, nor the research and study fair dealing exception, usually apply when content is shared with people outside the school.  
• Schools pay millions of dollars of public funds to use freely available internet materials in the classroom. For the most part, the authors of these materials never wished or expected to be paid for these materials (like head lice fact sheets), or works where no copyright owner can be found.
• Government policy and community expectations require schools to take an increasing role in STEM education, industry collaboration, and equipping students with the digital skills they need to be successful in the workforce of the future. Australia’s copyright laws are hampering this. None of the existing copyright exceptions of statutory licences allows schools to use small amounts of copyrighted material when engaging in collaborative projects with the broader community, business, and industry.
• Critically, the absence of appropriate copyright exceptions makes it difficult or impossible for teachers to assist students with disabilities, such as making format-appropriate copies of resources for vision- or hearing-impaired students.  

The reform Australia needs: fair use

Replacing Australia’s out of date educational exceptions with a flexible fair use exception that can adapt to changes in technology and teaching practices would fix the problems listed above. It would bring Australia in line with countries such as Israel, South Korea, Singapore, and the United States. These countries have flexible copyright laws that facilitate, rather than hinder, the innovative teaching practices that prepare students for the digital economy. And it would ensure that the millions of dollars of public funds that schools currently pay every year to use freely available internet materials and orphan works would instead be used to educate students.

The issue of whether Australia should adopt a flexible copyright exception like fair use has been extensively examined in Australia, and a fair use style copyright exception has now been recommended by seven independent review committees over almost 20 years of in-depth consideration.  

The time has come for this reform to be implemented. Fair use would enable sensible public interest uses, while protecting the interests of copyright owners. It would allow educational uses in schools—irrespective of the content used or the technological means of delivery— but only where such uses would not harm copyright owners’ markets.

The existing educational copying regime was designed in the age of classroom-based “chalk and talk” teaching. It is entirely unsuited to today’s world of flipped classrooms, digital learning, and collaboration. Fair use is urgently needed to bring the Australian educational copying regime into the digital age.

For additional information on fair use see the Smartcopying website:

• Answering teachers’ common questions about fair use;
• Yes, Australian schools do pay to use free online content; and
• Mythbusting fair use.

Productivity Commission recommendations

The issue of whether Australia should adopt a fair use exception was most recently referred to the Productivity Commission’s review of Australia’s intellectual property system.  The education sector made multiple submissions to the Productivity Commission’s consultations.  Key aspects of these submissions were:

• Explaining why the recommendation of fair use by previous independent reviews should be implemented as part of Australia’s innovation agenda, highlighting the importance of STEM subjects and equipping students with the skills needed for the workplaces of the future;
• Explaining that the existing educational copyright system is not suitable for the digital environment, and how streamlined statutory licences and a fair use exception would allow Australian schools to take advantage of digital technologies and international best practice teaching methods, as well as allowing student engagement in ways contemplated by the Australian curriculum;
• Highlighting the poor governance arrangements for Australian collecting societies, and the need for greater transparency and oversight of the administration of the educational statutory licences;
• Reminding of the need for a strong Open Educational Resources (OER) policy to support Australia’s innovation policy;
• Highlighting the need for a copyright safe harbour to clarify the legal responsibilities of schools when providing internet access to students and staff; and
• Reminding policymakers of the ongoing need for copyright reform to address challenges of educating students with disabilities due to the absence of TPM exceptions, as well as general concerns about contractual and technological methods being used to limit or exclude the capacity of schools to rely on copyright exceptions.

The Productivity Commission’s final report into Intellectual Property Arrangements was released by the Commonwealth Government in December 2016, and concluded that “Australia’s copyright arrangements lack balance and have been slow to adapt to technological change, imposing costs on the broader community.” It suggests a suite of reforms to maximise the welfare of all Australians.

The Commission recommended reform in all of the areas raised by education sector, including:

• The introduction of a fair use exception;
• The need for expanded copyright safe harbours to include educational institutions;
• The need for improved governance arrangements for copyright collecting societies;
• Provisions ensuring that contractual and technological means cannot be used to override educational copyright exceptions;
• The need for TPM exceptions to enable educational uses, including assisting students with disabilities; and
• Supporting a broader policy on OER.

The Productivity Commission’s recommendation of fair use was supported by the Commonwealth Government-commissioned Ernst & Young cost benefit analysis of the ALRC’s proposed copyright reforms. The report found that an exception that permitted schools to make “fair” uses of content without payment would have a net positive impact on the economy and society. The main benefits would be more effective use of public funds (as schools would no longer be required to pay to use freely available internet content or orphan works, and could use content in other ways that did not harm the rights holders), and greater efficiency in the delivery of education.

Ernst & Young considered—but ultimately rejected—the claims made by rights holder groups that fair use is inherently more uncertain than the existing educational copyright system, and that it would cause harm to educational publishers and reduce the incentives for the creation of educational content.

The Commonwealth Government has called for further submissions on the Productivity Commission’s final recommendations. Submissions are due on 14 February 2017.  The Government has stated in announcing the consultation that it encourages submissions on new issues raised by the Commission, and additional information (rather than re-visiting issues raised in previous submissions).  

The Australian education sector is in the process of preparing a submission. Be on the lookout for another blog post once the consultation has concluded.

The flowchart is licensed under a CC BY 4.0 International License, creator: Australian Copyright Unit. 

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The fact that Google is allowed to do this has received much criticism, not only from authors in the US but also from rights holders and media in Europe. Much of this criticism has been directed to the fact that the ruling allows a commercial entity to provide access to the full corpus of literature published in the US, but misses a much more important point.

As Ellen Euler, the Deputy Managing Director for Finance, Law, Communication of the Deutsche Digitale Bibliothek points out in her guest contribution below, this means that internet users in the US have access to a much broader body of knowledge and culture than the internet users in the EU. According to Euler we should not see Google Books as a threat to culture but rather as a reminder that Europe urgently needs to create a legal framework that enables access to the collections of our libraries, archives and museums, preferably by allowing them to make their collections available via their own online platforms.

Looking beyond Google for online access to EU culture and knowledge

by Ellen Euler

In the the digital and networked 21st century, cultural heritage institutions have an extended mandate: they must not only provide local access to culture and knowledge, but are also expected to make their collections available via the internet. As we spend an increasing amount of our time online, expect to be able to view and enjoy the the rich collections of our libraries, museums, and archives. And it’s important to provide online access to enable the discovery and innovative reuse of our shared cultural commons. As Tim Berners-Lee, one of the inventors of the web, sums up: “What’s not on the Net, is not in the world”.

When we digitize content from cultural heritage institutions, we begin the process of opening those materials to the world. As Armand Marie Leroi, a humanist and professor of evolutionary biology once said, “digitisation transforms them from caterpillars into butterflies”. Digitized texts allow us to pose entirely new questions and acquire new knowledge based on full-text searches and via other analytical tools and methods. This type of information mining is no longer restricted only to texts. Image recognition tools, combined with standardised metadata and geographical data, make it possible to interrogate other types of content too. We can use new quantitative research methods to test hypotheses and create linkages between bodies of knowledge. We can create virtual research environments to enable the contextualisation of collections within a broader framework.

Google Books: A blessing and a curse

Early on, Google recognized the benefits to digitisation, and tapped into the public’s interest in searching across huge textual collections. Since 2004 Google has been digitising millions of books from U.S. libraries for its Google Books product. In the U.S., the scanning triggered a backlash from authors and publishers, who felt that they were losing control over their copyrighted works. It also fuelled fears that the digitised resources within Europe’s cultural heritage institutions would be stifled by the dominance of Anglo-American digital cultural offerings.

Photo: Jürgen Keiper (CC BY)

Therefore, on 28 April 2005, seven EU countries wrote a joint letter to the President of the European Commission (PDF, in French). The letter recognised the potential benefits of availability and searchability of culture and knowledge, and proposed the creation of a virtual library that would make Europe’s cultural heritage accessible to everyone in digital form. With this proposal they wanted to combine existing initiatives, avoid redundancy, and stimulate the growth of the information society and European media industry.

The EU realised that a substantial platform needed to be created to counter the dominance of Google Books. The idea of a European cultural platform (and its national counterparts) was born. Launched in 2008, Europeana now serves as the European entry point for online collections of cultural heritage materials. In 2012 the Deutsche Digitale Bibliothek (German Digital Library) was created to serve the same function at the national level for Germany. Both of these platforms attempt to aggregate digital offerings from cultural heritage institutions, and to increase the visibility of Europe’s cultural heritage online.

As Google’s book digitisation efforts grew, it was sued for copyright infringement in a lawsuit brought by the Association of American Publishers and the Authors Guild. These organisations and Google entered into a protracted legal dispute that lasted for more than a decade. Then, in April 2016, the United States Supreme Court refused to hear an appeal of the case. As a result, the decision of the lower court was upheld, which means that the digitisation and indexing of copyrighted texts by Google is a fair use, and as such does not require permission from the rights holders of the books.

Google Books provides free, full-text access to books that are in the public domain in both the U.S. and Europe. Relying on fair use, the U.S. version of the Google Books product also allows users to search the full contents of books still under copyright. However, the results of these searches only display the search terms alongside short passages of text in which those terms appear. Unless the work is in the public domain, the full text of in-copyright books is only displayed if Google has obtained permission from the rightsholders to do so.

The great benefit of Google Books is indisputable and described in detail in the now confirmed ruling:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Meanwhile, Google has expanded its digitisation activities to cover cultural works other than texts. In 2011 it founded the Google Cultural Institute as well as the Google Art Project—which displays digital art collections from museums around the whole. Together with its partner institutions, Google is able to widely share a wealth of cultural heritage collections, including both public domain and in-copyright materials.

Google relies on fair use to be able to digitise and provide at least minimal levels of access to these resources. But Europe does not enjoy an equivalent to fair use. Europe instead has a rigid, prescribed system of exceptions and limitations to copyright. Many social media and remix uses—such as internet memes, image collages, and the sharing of content over networks—are permitted in the U.S. on the basis of fair use. But in Europe, these types of innovations operate in a semi-legal grey area.

The limits of the European framework for digitisation and access

Currently there is no legal basis that authorizes cultural heritage institutions in Europe to undertake the comprehensive digitisation and indexing of protected works in their collections without permission from copyright holders. It’s often impossible for European cultural heritage organisations to obtain permission to digitize their collections, or to make use of thumbnails to show what is contained in their collections. Rights clearance is a complicated and resource-intensive process, and most cultural heritage institutions do not have the money to make these resources available online. Therefore, many attractive cultural offerings still under copyright can only be made available by well-financed commercial players.

This situation prevents most cultural heritage institutions from developing comparative offerings, even though these would be noncommercial in nature and intended to foster the public interest goals of copyright without causing any harm to rights holders. As a result many European cultural heritage institutions are only digitising and making available collections already in the public domain.

Over the last few years, Europeana has grown to contain almost 55 million digital objects. The Deutsche Digitale Bibliothek now offers almost 20 million digital objects. Imagine the incredible online collections these cultural heritage institutions could offer if only they were permitted to open up in-copyright works.

Why is it problematic that cultural heritage institutions in Europe are so limited in their ability to engage online? And why should these public interest organisations even attempt to provide online access to collections when commercial providers like Google can do it so much better? The answers to these questions must begin with the realisation that Google’s outsized position in the information society is accompanied by far-reaching consequences for our society.

First, Google collects information that could reveal details about a user and her interests. Google’s mission is “to organize the world’s information and make it universally accessible and useful”. But we shouldn’t assume Google’s will share without requiring something in return. It’s naive to assume Google is operating under any other frame than to meet its corporate responsibilities in the pursuit of growth and profit.

There is a need for platforms like Europeana and the Deutsche Digitale Bibliothek to be able to provide access to digital cultural materials based on public-focused missions not driven by commercial considerations. These types of organisations wish to provide sustainable, reliable access to our shared cultural memory in ways that does not violate the rights and expectations of its users. We need institutions to share large pools of data (“Big Cultural Data”) that can be used by anyone for new, innovative methods of analysis and cultural production. That is why we should advocate for full digital access to our shared cultural heritage.

Online public services stand to benefit greatly if they are indexed by Google’s search algorithm. “Linked Open Data” is the magic word for the greatest possible visibility and contextualisation. All resources—from commercial products to openly licensed offerings—should be able to interoperate with each other if they are to produce added value for end users. We should not entrust to Google the entire responsibility for digitising and sharing our cultural heritage materials. At the same time, cultural heritage institutions should not isolate themselves from Google or other commercial intermediaries.

Photo: Jürgen Keiper (CC BY)

For the time being, Google has abandoned its efforts to digitise more extensively in Europe. Historically, Google has been interested in digitisation projects that are of interest to a global public. However, this form of digitisation “cherry picking” can be problematic because it only focuses on popular content. Instead, we need to create a comprehensive online resource that provides access to the entirety of Europe’s cultural heritage. Doing it this way would be the best way to represent the historical and creative diversity of Europe’s cultural heritage institutions. Developing a comprehensive digitisation and access system would support the goals outlined in the 2005 letter from the EU heads of state when they wrote that the vision and values of European culture should be visible in virtual space.

For Europe this means that it must put its cultural heritage institutions on a path for success—not only by offering financial and institutional support, but also by setting up a favorable framework for change. The greatest hurdle to supporting digitisation and access is European copyright law, which is outdated for the digital age and relatively inflexible when it comes to limitations and exceptions to copyright. Previous reform attempts did not improve the situation: it made it clear that a patchwork of remedies based on voluntary measures is not the solution.

Orphan Works Directive: Good intentions, lackluster implementation

The orphan works directive was intended to fill the 20th century content black hole by allowing institutions to digitize and make available works for which rights holders could not be found or identified. But in reality, the orphan works directive has not been very effective to this end. A glance at the Register for Orphan Works at the Office of the European Union for Intellectual Property (where the works have to be registered before use) reveals that after two years there are still no more than 1684 works registered. Nearly twenty countries—including Spain, France and Italy—have not registered a single orphaned work. Even libraries do not see the orphan works directive as a significant step forward with regard to digitisation and access to cultural heritage collections. Even worse, the orphan works directive covers only textual and audiovisual works. It cannot be relied upon when digitising photography or visual art works.

Germany has gone a step further than simply implementing the orphan works directive. As a result of intensive lobbying from library associations, the German legislator has provided a solution for out-of-print works that are no longer commercially available. Under this provision libraries are allowed to digitize and make available out-of-commerce works first published before 1966 without having to undertake a diligent search for rights holders as long as they pay a reasonable fee to a collecting society. Although this provision only came into effect in mid 2015, the register for out-of-print works maintained by the German Office for Patents and Trademarks contains 3,758 works (and counting). Given this relative success, the provision seems suitable as a model for other types of out-of-commerce works held by cultural heritage institutions. However, this setup assumes there will be productive cooperation between cultural heritage organisations and the relevant collective management organisations.

Should collective management organisations be able to collect royalties from uses of orphaned works if the uses are noncommercial in nature, respect the legitimate interests of authors, and intended to advance the progress of culture and science? Or should we we create new exceptions that permit cultural heritage institutions to digitize and make freely available the works they have in their collections?

There’s no consensus on the answers to these questions. But we do know that some copyright holders are not prepared to yield a single step to entertain a progressive change. And historically, the European legislator has supported the interests of rights holders more than the needs of cultural heritage institutions and the public. As a result, Europe will lag behind in the digitisation and access to its cultural heritage materials.

The conclusion is clear: cultural heritage institutions in Europe urgently need a fair, legal framework to enable them to both serve their public audiences, and preserve the rights of authors in the digital space.

Dr. Ellen Euler, LL.M.
The author is the Deputy Managing Director for Finance, Law, Communication of the Deutsche Digitale Bibliothek

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The doctrine of fair use sits under the larger umbrella of limitations and exceptions to copyright. These limitations are a necessary check on the exclusive rights granted to copyright holders. Even though fair use has only been adopted by a small number of countries, in Europe there are several exceptions that are central to supporting permission-free uses of copyrighted content for various public interest goals. Both fair use and flexible copyright exceptions serve the same basic purpose, but under different legal landscapes.

We’ve highlighted several commonsense limitations to copyright that should be adopted and standardised throughout the EU. These include exceptions for educational use, for cultural heritage institutions to be able to share out-of-commerce works online, for freedom of panorama, and for audiovisual quotation. It’s important that these exceptions are made mandatory and are fully harmonised across all EU member states.

We’re especially interested in how limitations and exceptions to copyright can support modern education practices. Last month we published a policy paper outlining the requirements for a progressive EU-wide exception to copyright for educational purposes. This exception should 1) address local and cross-border education needs; 2) be mandatory; 3) be neutral with regard to media type, format, and technology; 4) be flexible; and 5) cover all necessary uses provided they are in accordance with fair practice.

As we observe Fair Use Week 2016, we’re happy to see that users around the world are taking advantage of limitations and exceptions—an important safety valve to the rules of default copyright. We’re hopeful that in the coming months the Commission will support the creation of exceptions that balance the interests of rightsholders with the needs of the public who wish to use copyrighted works in creative and educational ways.

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The Australian Law Reform Commission has just published its report on Copyright and the Digital Economy. At the centerpiece of this report we find the recommendation to replace the existing system of purpose-based exceptions with a flexible fair use style exception. The proposal, on which the 1709 Blog has a very useful summary, combines a fair use clause with a number of illustrative purposes that aims at providing legal certainty for specific types of uses:

Under the proposed framework, determining whether a use is ‘fair’ requires the balancing of the same four factors as those that underpin the US fair use doctrine, ie:

• the purpose and character of the use;
• the nature of the copyright material;
• the amount and substantiality of the part used; and
• the effect of the use upon the potential market for, or value of, the copyright material.

A more extensive (non-exhaustive) list of illustrative purposes than appears in the US statute is also recommended for inclusion. It covers:

• research or study;
• criticism or review;
• parody or satire;
• reporting news;
• professional advice;
• quotation;
• non-commercial private use;
• incidental or technical use;
• library or archive use;
• education; and
• access for people with disability.

In the context of the ongoing EU consultation it is especially interesting to see a set of recommendations that try to combine the advantages of a fair use approach (flexibility and adaptability to new technological developments) with the advantages of an approach that relies on exceptions for certain clearly defined types of use (legal certainty for users that fall into these categories).

A number of the already published responses to the EU copyright consultation are suggesting a similar approach for Europe. These include the response by Copyright4Creativity (to which Communia has contributed) but also the responses by Europeana and by a number of Dutch cultural heritage institutions.

While we are waiting for the next steps of the European copyright reform process, the report by the the Australian Law Reform Commission, which draws on the outcomes of a similar public consultation, shows that a fair use approach certainly has its merits.

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In his report Hargreaves concluded that while it is highly desirable to introduce more open-ended flexibilities into UK copyright law, ‘significant difficulties would arise in any attempt to transpose US style Fair Use into European law.’ (Hargreaves, p.47). Instead of recommending the introduction of a Fair Use exception, Hargreaves looks at the benefits that a Fair Use exception provides and concludes that it is time to explore…

‘… with our EU partners a new mechanism in copyright law to create a built-in adaptability to future technologies which, by definition, cannot be foreseen in precise detail by today’s policy makers. This latter change will need to be made at EU level, as it does not fall within the current exceptions permitted under EU law. […] We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work (this has been referred to as “non-consumptive” use). (Hargreaves, p.47)

While Hugenholtz and Senftleben seem to embrace these conclusions, their study does not deal with introducing additional flexibilities into the European copyright system. Instead they have set out to explore existing room for more flexibility within the system. This system consists of the EU’s 2001 Information Society Directive (a.k.a ‘Copyright Directive), it’s 27 implementations into the national laws of the EU member states, and the WIPO internet treaties.

In their paper Hugenholtz and Senftleben argue that the current European copyright system provides ample room to create more flexible exceptions. According to them, member states seeking to provide more opportunities to users of copyright protected works are well advised to exploit these inherent flexibilities. Where the introduction of new exceptions at the EU level, as advocated by Hargreaves, would only come into effect after a multi-year legislative undertaking with an all but guaranteed outcome, working with existing flexibilities provides those member states who wish to introduce changes a much quicker route to achieve this objective.

So where are these existing but currently unused flexibilities? According to Hugenholtz and Senftleben they can be found in the way member states implement the Information Society Directive in their national laws. After showing the leeway awarded by the directive though a discussion of specific national implementations and relevant case law, they point out that:

The most flexible implementation of permissible EU exceptions, however, can be achieved by including literal copies of the prototypes in the Information Society Directive in national law. […] The norm inevitably remains semi-open because it can hardly empower judges to identify new use privileges on the mere basis of abstract criteria, such as those constituting the three-step test. Article 5 ISD contains an exhaustive enumeration of permissible exceptions. Without changes to the EU acquis, this closed catalogue cannot be reopened at the national level. Recalling several EU exception prototypes with flexible features that have been highlighted above, the envisioned semi- open provision, nonetheless, could take the following shape:

‘It does not constitute an infringement to use a work or other subject-matter for non-commercial scientific research or illustrations for teaching, for the reporting of current events, for criticism or review of material that has already been lawfully made available to the public, or quotations from such material serving comparable purposes, for caricature, parody or pastiche, or the incidental inclusion in other material, provided that such use does not conflict with a normal exploitation of the work or other subject-matter and does not unreasonably prejudice the legitimate interests of the rightholder.’

Further requirements to be found in the relevant provisions of Article 5 ISD, such as use ‘in accordance with fair practice’, use ‘to the extent required by the specific purpose’, or use ‘to the extent justified by the informatory purpose’ can be understood to be covered anyway by the elements taken from the three-step test. Otherwise, these additional requirements – being flexible themselves – could be added without changing the semi-open nature of the proposed provision. (Hugenholtz and Senftleben, p.17-18)

Combining the literal text of the Information Society Directive with the three-step test, which is usually perceived as a limitation of the scope of possible exceptions may, at first, sound like a rather strange recipe to increase flexibility. However Hugenholtz and Senftleben argue that this does not do justice to the nature of the three-step test:

In the context of the Information Society Directive, the reappearance of the three-step test in Article 10 WCT is even more important than the outlined initial understanding of the provision. […] The Agreed Statement Concerning Article 10 WCT, however, could hardly be more explicit with regard to the flexibility inherent in the international three-step test:

‘It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extent into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.’

This balanced Agreed Statement, allowing the extension of traditional and the development of new exceptions and limitations with regard to the digital environment, is the result of the deliberations at the 1996 WIPO Diplomatic Conference that led to the adoption of the WIPO Internet Treaties. […] The Agreed Statement Concerning Article 10 WCT is thus the outcome of an international debate in which the need to maintain an appropriate balance in copyright law has clearly been articulated. (Hugenholtz and Senftleben, p.22)

Armed with this view on the three-step test Hugenholtz and Senftleben arrive at their conclusion that there is room within the current European copyright system to provide a level of flexibility that is comparable with that provided by the US fair use doctrine:

A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. […] In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for instance, fair (i.e. non-commercial) transformative uses in the context of user-generated content. (Hugenholtz and Senftleben, p.29-30)

While they are probably right to point out that ‘initiatives to introduce flexibilities at the EU level […] could easily take ten years’, their conclusion that member states should focus their energies on national legislative changes that make use of the policy space identified in their paper is not convincing.

While the policy space described above does exist on paper, it clearly remains an extremely contested space when it comes to policy making. The arguments brought forward may be persuasive to policy makers and other actors who are seeking to introduce more flexibilities into the current copyright system, but will most certainly be ignored or disputed by those with contrary policy objectives.

To make matters worse, the approach suggested by Hugenholtz and Senftleben hinges on favorable implementation of the legislative framework by the courts. This not only introduces uncertainties, it is also highly questionable whether courts will indeed adopt the non-restrictive interpretations of both the Directive and the three-step test as they are presented by Hugenholtz and Senftleben in their study. As a result, the approach of establishing clearly identified positive norms on the EU level, as favored by Hargreaves, seems much better suited to re-balance copyright in the EU.

The main value of this study is how it shows that the need for more flexible limitations and exceptions for a digital environment was acknowledged at the very beginning of the process of adapting copyright to the reality of emerging digital networks. Unfortunately that initial recognition has lost a lot of ground under the relentless attack of copyright maximalists over the past 15 years.

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