At the workshop, three websites/databases tracking the status of users’ rights and copyright flexibilities in Europe: https://www.copyrightexceptions.eu, http://www.copyrightflexibilities.eu and http://www.copyrightuser.eu will be launched. In addition, we will gather feedback on the websites’ functionality and plan their future. We will be joined by copyright experts who contributed to the mapping and stakeholders representing various groups of beneficiaries to discuss the state of copyright flexibilities and policy options at the EU and national levels. 

Represented by Teresa Nobre and Paul Keller, COMMUNIA will showcase the project copyrightexceptions.eu, a collaborative effort of COMMUNIA, Open Future and Digital Republic, mapping the European Union’s copyright framework and providing information on the national implementation of the various exceptions and limitations to copyright and related rights contained in EU copyright law.

Registration for both online and offline attendance is free of charge. Please register here.

For any queries, please contact rosie.allison@libereuriope.org.

Programme

9:00 – 9:15 Introduction and greetings (Paul Keller, Caterina Sganga)

9:15 – 10:15 Three platforms to explain, engage, empower

• copyrightexceptions.eu (Paul Keller, COMMUNIA/Open Future)
• copyrightflexibilities.eu (Caterina Sganga, reCreating/Sant’Anna Pisa)
• copyrightuser.eu (Bartolomeo Meletti, reCreating/CREATe Glasgow)

10:15 – 11:15 Flexibilities for teaching and research

Chair: Teresa Nobre (COMMUNIA)

Speakers: Ana Lazarova (COMMUNIA/Sofia University “St. Kliment Ohridski); Justin Jutte (University College Dublin); Matej Myska (Masaryk University Brno)

11.15 – 11.30 – Coffee break

11:30 – 12:30 Flexibilities for cultural uses and preservations

Chair: Caterina Sganga (reCreating/Sant’Anna Pisa)

Speakers: Francisco Duque Lima (KU Leuven); Rita Matulionyte (Macquarie University Sidney); Leo Pascault (Science Po Paris)

12:30 – 13:45 Flexibilities for freedom of expression (quotation, parody, informatory purposes)

Chair: Paul Keller (COMMUNIA/Open Future)

Speakers: Tatiana-Eleni Synodinou (University of Cyprus); Philipp Homar (Donau-Universität Krems); Julien Cabay (Université Libre de Bruxelles (ULB) and University of Liege); Conception Saiz Garcia (University of Valencia)

13.30 – 14.30 Lunch break

14:30 – 15:30 Roundtable on best practices on Copyright flexibilities

• Presentation of best practices and moderation (Caterina Sganga)
• Open debate

15:30 – 16:30 Roundtable on the way ahead: data collection, editorial boards, platforms maintenance

Moderator: Paul Keller (COMMUNIA/Open Future)

16:30 Wrap up, closing and drinks

The post Mapping, explaining, empowering: COMMUNIA and reCreating Europe Workshop on Copyright Flexibilities 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.

This includes four issues addressed in the Commission’s Proposal for a Directive on Copyright in the Digital Single Market (the exceptions for Text and Data Mining, Education, and Preservation copies, and the measures aimed at improving access to out-of-commerce works), and a number of issues that the Commission’s proposal fails to address, such as on-site access to collections and online document supply.

Exceptions are too narrow

The paper underlines that from the perspective of cultural heritage institutions, EU copyright reform needs to focus on updating and harmonizing copyright exceptions:

We believe that overall welfare is best served by a robust and mandatory set of copyright exceptions which facilitate access to knowledge.

Given this general approach it is not surprising the cultural heritage institutions share many of the same concerns we raised in our analysis of the Commission’s proposal. With regard to the proposed Text and Data mining exception (which we discuss here) they observe:

On text and data mining (TDM), the new exception does not go far enough. […] limiting the TDM exception’s scope is a recipe for uncertainty. Any individual or organisation who has legal access to a work should have the right to mine it, without discrimination as to purpose (commercial or otherwise). […] The potential societal gains [of a broader exception], not least in terms of stopping the flow of research to other countries with better adapted rules, are immense.

And in line with our own recommendation related to the proposed exception for digital and cross-border teaching activities, the paper observes that

On education, new rules should not add complexity for teachers and others involved in formal or informal learning. Given that education itself is one of the original goals of copyright, a simpler option is a mandatory exception for illustration for teaching and scientific research applying both to analogue and digital materials.

Missed opportunities

The paper notes that the Commission’s proposal fails to create clear rules for online document delivery to users for private research purposes, and fails to update the technologically-outdated exception that permits cultural heritage institutions to make works in their collections available for research and private study as long as they do so via dedicated terminals located on their premises (Art 5.3.n of the InfoSoc directive). By leaving the “dedicated terminals” language in place, the Commission shows it’s not committed to a genuine modernization of the EU copyright rules. In an age where most visitors of libraries, archives, and museums carry their own portable devices with access to the entirety of the web, the EU copyright rules continue to be modeled on the technological landscape of the late 20th century.

Out-of-Commerce Works

One of the main areas of concern for the cultural heritage institutions is the Commission’s proposal for improving access to out-of-commerce works held in the collections of those institutions. While the paper welcomes the Commission’s attention to the issue, the cultural heritage institutions are not convinced that the approach proposed by the Commission will actually improve the matter:

As well as being overly complicated, the proposed solution seriously limits the number of works which would be covered. Importantly, the licensing based approach proposed by the Commission does not offer a solution where there is no collecting society for a category (e.g.: audio-visual in many member states) or type of work (e.g. works that have never been in commerce), or where a collecting society exists but it is not able to offer a licence for the making available of commercially unavailable material. It may not even provide an answer to the questions raised by the CJEU. To ensure works are not forgotten and locked away unnecessarily, we need a back-up mechanism.

We therefore propose to add an exception to allow cultural heritage institutions to make out of commerce works and never in-commerce works in their collections available online for noncommercial purposes. Member States would be empowered to ensure that the exception does not apply in sectors and for types of works where licences are available. This would recognise licensing as the primary, if not the only, mechanism for dealing with out-of-commerce works.

The fact that libraries and cultural heritage institutions—who are the intended beneficiaries of the Commission’s proposal—reject it in such clear language should give EU legislators reason to rethink these policies. The last thing the cultural heritage sector needs is another set of well-intended bult ultimately unusable rules.

One can only hope that the failed Orphan Works Directive (more than 2 years after its entry into force a mere 2032 works have been registered as Orphan Works) will serve as a warning sign here.

The post Cultural Heritage Institutions: Commission’s Copyright Proposal fails to address our needs appeared first on COMMUNIA Association.

COMMUNIA’s 2012 analysis of the directive showed that it was bound to be a train wreck. A preliminary comparative study of the situation in the UK, the Netherlands, and Italy undertaken by the EnDOW project reveals that the national implementations of the directive across Europe do not provide the much needed solution for the problem of orphan works.

Under the directive, cultural heritage institutions are allowed to publish works online for viewing (not re-use) after a ‘due diligence search’ has been performed, recorded, and submitted to the orphan works database at OHIM. Works that have been registered in this database can then be digitized and made available online under an exception to copyright. So far the project only published its initial results, but we can already see that this piece of legislation will most likely not contribute to large-scale use of orphan works by Europe’s Libraries, Museums & Archives.

The main reason for this is that the diligent search requirements established by the directive have been implemented by member states in such a way that the cost of undertaking a diligent search is prohibitive. The study collected over 210 sources, databases, and registers that need be checked in diligent searches in the UK alone. Researchers from Italy found 357 possible databases and registers. Of the 87 identified sources in the Netherlands, 40 were not freely accessible, and 36 of these required personal contact or a physical visit to an institute. Since the legislation requires cultural heritage institutions to be diligent, they need to check each and every source to be covered by the limited exception provided by the directive.

These results illustrate that the EU approach to orphan works is unreasonably complex and won’t adequately address the problem it’s trying to fix. This is further shown in the actual number of orphan works available through the OHIM Orphan Works Database, which currently only shows 1,435 registered works. More than half of them are in the collection of the Dutch EYE Film Institute (which has worked on rights clearance for these works since at least 2008).

The preliminary results of EnDOW provide evidence that the European Union has failed in this attempt to provide much needed digital access to Europe’s cultural heritage. Given that the Orphan Works Directive does not help with mass digitisation projects, this means that there is a continued need to provide legal mechanisms that allow cultural heritage institutions to make works in their collection available online.

Note: This contribution has been written by Maarten Zeinstra. Maarten is technical advisor to EnDOW. The ideas expressed in this post should not be attributed to EnDOW.

The post Research: Orphan Works Directive does not work for mass digitisation appeared first on COMMUNIA Association.

In October 2015, Poland completed the process of amending the national Act on Copyright and Neighbouring Rights. Its aim was to adapt Polish law to the EU requirements:

1. the Directive 2011/77/EU (the Directive amending the Directive on the term of protection of copyright and certain related rights);
2. the Directive 2006/115/EC (the Directive on rental right and lending right); and
3. the Directive 2012/28/EU (the Directive on certain permitted uses of orphan works).

Additionally, the amendment aimed at clarifying or modernising some other rules, including copyright exceptions and the regulation of ‘domaine public payant’ (i.e. royalties for the use of works in the public domain).

The amendment was the result of a consultation and legislative process that lasted over two years. During this time, the Ministry of Culture and National Heritage initiated a series of meetings on key reform issues within the framework of the Copyright Forum (Forum Prawa Autorskiego) and gathered feedback from various entities, including Centrum Cyfrowe. This process was characterised by a strong presence of non-governmental organisations, and generated some heated debates between NGOs and representatives of rights holders.

The amendment was divided into two parts. The first part – the so called ‘small amendment’ – was a much delayed implementation of the Directive 2011/77/EU. It extended the term of protection for related rights (artistic performances, phonograms) from 50 to 70 years. In addition, rights were granted to artistic performers in relationship to phonogram producers (for example, the right to terminate the agreement and the right to additional remuneration). The amendment went into effect on 1 August 2015.

The second part – the so called ‘big amendment’ – covers two main areas:

1. copyright exceptions, including the use for educational purposes, the use of out-of-commerce works, the use of orphan works, the right to quote, the use by libraries and public lending right;
2. domaine public payant.

From the perspective of openness and the modernisation of copyright law, the ‘big amendment’ is particularly important. We examine the changes thoroughly below. Most of the amendment provisions went into effect on 20 November 2015.

1. Copyright exception for educational purposes

According to the narrative presented by the Ministry of Culture and National Heritage, the aim of the proposed legislation was to ensure (based on EU law which seeks a balance between the interests of rightholders and users) the widest possible access to works for education purposes through an exception to copyright.

1.1. The scope of beneficiaries

First, the copyright exception for educational purposes has been expanded. Prior to the amendment, the provision had the following wording:

Research and educational institutions shall be allowed, for teaching purposes or in order to conduct their own research, to use disseminated works in original and in translation, and to make copies of fragments of the disseminated work.

With the amendment, the phrase research and educational institutions has been changed to say educational institutions, universities and research entities within the meaning of the Polish Act on the Principles of Financing Science. The amendment also now defines educational institutions as primarily ‘organizational units’ referred to in the Polish Act on the Educational System (which include dozen types of schools and institutions). The aim of these alterations is to clarify the scope of the beneficiaries of the educational exception.

However, this clarification might in fact narrow the group of institutions that can take advantage of the educational exception. If we take a look at recital 42 of the Directive 2001/29/EC (‘the InfoSoc Directive’), we see this:

When applying the exception or limitation for non-commercial educational and scientific research purposes, including distance learning, the non-commercial nature of the activity in question should be determined by that activity as such. The organisational structure and the means of funding of the establishment concerned are not the decisive factors in this respect.

This passage means that uses of copyrighted materials under an educational exception will be judged based on the character of the use, not on the type or user. The final sentence in this language suggests that national copyright acts should not limit the scope of the beneficiaries of educational exception to only entities with a specific legal status—such as an ‘educational institution’ defined by the Polish Copyright Act.

Another difference between the InfoSoc Directive language and the Polish Copyright Act text is that the Act does not require that the use under the educational exception can only be for non-commercial purposes. However, Centrum Cyfrowe thinks that anyone who participates in the education process (even commercially) should be treated in the same way, regardless of whether they are a public university, high school, private language school, local club-room, or NGO. You can read here about how to create a copyright exception for educational purposes.

1.2. E-learning

Concerning e-learning, the amendment added the following provision:

In case of making works available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them, the use mentioned in the paragraph 1 is permissible only for limited circle of learners, teachers or persons conducting scientific research, identified by the entities listed in paragraph 1.

This means that the educational exception may now be used in e-learning contexts. Just like the main educational exception, it is also limited to educational institutions, universities and research entities.

2. Copyright exception for out-of-commerce works

The amendment introduces a new form of exception based on the framework Memorandum of Understanding (MoU) on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works, which was discussed in the European Commission in 2011.

An out-of-commerce work in the Polish Act means a work that is neither:

• available for customers in the course of trade with the consent of its copyright holder;

nor

• placed on the market in the form of copies in number satisfying rational needs of customers;

nor

• made available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them.

The exception allows for the reproduction of out-of-commerce works, and making them available online. However, several restrictions were introduced, including: 

1. the exception applies only to printed works published in Poland for first time before May 24, 1994;
2. the exception applies only to archives, educational institutions, universities, scientific institutions, and cultural institutions;
3. the use of works under the exception is permitted provided conclusion of contractual obligations with a copyright collecting society;
4. the use of works under the exception is permitted only in order to carry out the statutory tasks of mentioned entities, insofar as these tasks serve the public interest;
5. entities mentioned in point e. above shall be entitled to receive revenues from the use of works out-of-commerce, as far as revenues are intended to cover the direct costs of digitization and costs associated with making out-of-commerce works available.

Each of the above restrictions may be justified on the basis of the MoU, except for the limitation on the date of publication (before May 24, 1994).

3. Copyright exception for orphan works

The amendment introduces the possibility to use orphaned works under the obligation to implement the Directive 2012/28/EU (the Orphan Works Directive, which was implemented after a delay). The rules introduced in this area do not deviate from the EU standard.

Therefore, a work is ‘orphaned’ pursuant to the Polish Copyright Act if a copyright holder of the work was not determined or found despite searches that were conducted in the manner precisely defined in the Act. However, there are additional obligations that need to be met in order to deem a work ‘orphaned’:

1. it shall be a printed work, an audiovisual work (or a work incorporated into an audiovisual work), a work recorded in a videogram or a work recorded in a phonogram;
2. it was published or broadcasted first time in the EU or the EEA area;
3. it is in a collection of particular entities (among others libraries, archives, universities).

The reproduction of orphan works and making these works available to the public (in such a way that members of the public may access them from a place and at a time individually chosen by them—it means ‘online’ access) are allowed under following conditions:

1. the use is permitted only in order to carry out the statutory tasks of mentioned entities, if these tasks serve the public interest;
2. entities mentioned in point c. above shall be entitled to receive revenues from the use of orphan works, if revenues are intended to cover the direct costs of digitization and costs associated with making orphan works available.

Moreover, unpublished works may be used if they were made available with the right holder’s consent by other libraries, archives, universities.

4. Right to quote

The amendment specifies that the right to quote may be used regarding the artistic works, photographic works, and uses of polemics, parody, pastiche, and caricature. Moreover, a user may be allowed to unintentionally incorporate a work into another work, as far as the incorporated work has no meaning for the work in which was incorporated (it can be useful in cases such as this one).

5. Public lending right

According to the amendment, authors, translators and publishers may apply for compensation for lending the works they created, translated, or published via public libraries. Such remuneration is required by the Directive 2006/115/EC. It is worth noting that these costs will be covered not by local governments (who are responsible for funding public libraries), but from the state budget, with funds collected from taxes on gambling. Payments will be distributed by the relevant copyright collecting society determined by the Minister of Culture and National Heritage. The collecting society will be selected through a competition and awarded the payment collection and distribution responsibilities for a limited period of time.

6. Copyright exception for libraries

As a result of the amendment,  the copyright exception for libraries, was substantially changed, in particular the list of entities covered under this provision. Now, not only libraries, schools and archives may use the right, but also museums, educational institutions other than schools, universities, research institutes, and scientific institutes of the Polish Academy of Sciences.

7. Domaine public payant

The amendment abolished the special fee paid by producers and publishers of works in the public domain. This fee was a form of ‘domaine public payant’ rarely occurring in contemporary law. Up until now, producers and publishers were obliged to pay a fee amounting to 5% of gross proceeds from the sale of copies of works to the Fund for Promotion of Creative Activity.

In general, the amendment to the Polish Copyright Act is a step in the right direction. First, there is now clarity that the educational exception may be used in e-learning. Second, it implements the EU copyright exception for orphan works and out-of-commerce works into Polish law. Finally, the domaine public payant fee has been discontinued.

But still we need further changes.

The Polish Copyright Act still has a number of unsolved imperfections, such as provisions related to licensing, computer software, and derivative works. The copyright exception for educational purposes is still not fully adapted to the 21st century (although we should note that this problem is not unique to Poland). In Poland, the  educational exception is attached to the legal status of the entity that wants to benefit from the exception, and not the nature of educational activity. This is a clear example of the exception being shaped too narrowly, and it needs to change. Furthermore, potential beneficiaries of the educational exception are still not exactly sure what they are permitted to do with works that fall under the exception. Similarly, the copyright exception for orphan works is being considered in the same way as in the Directive 2012/28/EU – which also brings criticism from various cultural institutions that the implementation of a workable orphan works law has not adjusted to contemporary realities.

Changing copyright law is difficult. The more than two years of copyright reform discussions in Poland have been conducted alongside the EU copyright consultation, which is of course considering at least minor changes to law in Europe. In our opinion, we missed the chance in Poland to have a broader discussion on copyright philosophy because we focused too much on the specific regulations to be changed.

The post Summary of 2015 amendments to the Polish Copyright Act appeared first on COMMUNIA Association.

Last week, the European Parliament approved the draft Directive on certain permitted uses of orphan works. The approval of the Council of Ministers is expected to occur shortly.

This is big news indeed, for it’s the first draft directive in the area of copyright law to make it this far in more than 10 years. It’s been commented and reported by many.

The proposed directive is striking in many respects. Most prominent is the virtually unanimous opinion that the directive ‘is a step in the right direction’, but that it ‘will not facilitate nor promote mass digitization and large-scale preservation of Europe’s vast cultural heritage’. This conjures up the image of the elephant giving birth to a mouse.

The text of the proposed directive went through several iterations before reaching its current stage, including the last amendments brought by the Parliament to the compromise text of last July. Some of the sharp edges have been softened in response to criticism, but the main point of contention remains: how can a cultural heritage institution with millions of items in its collection proceed with digitization if it must conduct prior to use a diligent search for each item? Since this train could not be stopped, cultural heritage institutions are now looking in the direction of their own lawmakers and partner-stakeholders to determine what constitutes a ‘diligent search’ at national level, following the criteria they may establish pursuant to article 3(2) of the directive.

The fair compensation to the reappearing rights holder

Another issue left at the discretion of the individual Member States concerns the determination of the circumstances under which the payment of a fair compensation to the rights holders that put an end to the orphan status of a work is to be organised. Article 6 paragraph 5 of the proposed directive states that the ‘level of the compensation shall be determined, within the limits imposed by Union law, by the law of the Member State in which the organisation which uses the orphan work in question is established’. Recital 18 specifies that ‘for the purposes of determining the possible level of fair compensation, due account should be taken, inter alia, of Member States’ cultural promotion objectives, of the non-commercial nature of the use made by the organisations in question in order to achieve aims related to their public-interest missions, such as promoting learning and disseminating culture, and of the possible harm to rights holders’. In practice, the combination of all these factors could justify the payment of a very low compensation, one that would still qualify as fair.

What the proposed directive omits to mention is how the compensation for past use based on mutual recognition of orphan works status (art. 4) should be regulated. Since the proposed directive emphasises that a work or phonogram so recognised may ‘be used and accessed in accordance with this Directive in all Member States’, does it give a right to fair compensation to the reappearing rights holder in every single Member State? A prudent legislator would, when implementing this provision at national level, make necessary arrangements to avoid that the budgets of its cultural heritage institutions be plundered by reappearing foreign rights holders. The determination of what is ‘fair compensation’ in this case could be linked – in addition to the factors enumarated in Recital 18 – to the total amount of downloads of the work/phonogram in question (actual use) in the Member State. The rights holder of a more popular work/phonogram would therefore receive a higher compensation than one whose work/phonogram hardly was consulted. This element would actually be connected to the criterion of potential ‘harm’ to the interests of the rights holder.

The registry of search records and orphan status

A (somewhat surprising) novelty in the compromise text as approved by the Parliament is the appointment of the Office for Harmonisation in the Internal Market (OHIM) as the publicly accessible online database entrusted with the collection and maintenance of the diligent search records and outcomes for all works declared orphan. Of course, the OHIM is among the few pan-European institutions dealing with intellectual property rights, namely trademarks and designs (the other organization in the field would have been the Commmunity Plant Variety Office) and it certainly has experience with holding registries. But the OHIM has no experience or affinity with copyright protected works or phonograms.

Dealing with trademark and design registration is likely very different from dealing with research records and metadata reflecting the orphan status of works. Moreover, the OHIM is not the first place that comes to mind to look for information on orphan works. Consequently, it could be overlooked by all those who are not familiar with the specifics of this arrangement, e.g. the general public. Wouldn’t it have been more logical to appoint an organisation like Europeana, which is mentioned in Recital 1 of the proposed directive as the main beneficiary of the provisions contained therein.

The ‘legal certainty’ ‘without prejudice to’…

The most striking aspect of the proposed directive is that in its effort to ensure ‘legal certainty with respect to the use of orphan works’ (Recital 25), the application of the provisions is without prejudice to the following:

1. the Memorandum of Understanding on key principles on the digitisation and making available of out-of-commerce works, signed on 20 September 2011 (Recital 4);
2. the arrangements in the Member States concerning the management of rights such as extended collective licences, legal presumptions of representatino or transfer, collective management or similar arrangements or a combination of them, including for mass digitisation (Recital 24);
3. any arrangements concerning the management of rights at national level (art. 1(5));
4. national provisions on anonymous or pseudonymous works (art. 2(5));
5. provisions concerning, in particular, patent rights, trade marks, design rights, utility models, the topographies of semi-conductor products, type faces, conditional access, access to cable of broadcasting services, the protection of national treasures, legal deposit requirements, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, the law of contract, and rules on the freedom of the press and freedom of expression in the media (art. 7);
6. any acts concluded and rights acquired before (a certain date) (art. 8(2));

In addition to all these rules or arrangements that may be given precedence over those of the proposed directive, whenever dealing with musical works, a cultural heritage institution will have to take account of the future rules deriving from the proposed directive on collective rights management and multi-territorial licensing of rights in musical works for online uses.

All and all, not an easy task ahead for the main beneficiaries the provisions of the proposed directive on certain permitted uses of orphan works… Cultural heritage institutions may choose instead to stick to the ‘contractual method’… which may not bring much freedom to European orphans after all.

The post Are European orphans about to be freed? appeared first on COMMUNIA Association.

The Government, following the Hargreaves Review, made a number of proposals to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.

These measures bring some currently unlawful or unlicensed activities within the scope of legal activity, allowing licensing to occur and thus benefiting right holders and licensees alike. They have potential to cut costs and improve compliance with copyright law, and to improve confidence in the UK copyright system.(p.7)

In the light of the discussion about the ‘Orphan works’ directive the first two of these should be of interest beyond the borders of the Island Kingdom.

Hostage works

The section on ‘improvements to copyright licensing’ is a bit misleadingly titled since these improvements are aimed exclusively at finding a solution for the hostage works problem. The policy statement outlines the problem in such a clear cut fashion that it is worth quoting at length:

The Government’s position, following the Hargreaves Review, is that it benefits no-one to have a wealth of copyright works be entirely unusable under any circumstances because the owner of one or more rights in the work cannot be contacted. This is not simply a cultural issue; it is also a very real economic issue that potentially valuable intangible assets are not being used, and an issue of respect for copyright if they are being used unlawfully. The Government therefore proposed an orphan works scheme that allows for both commercial and cultural uses of orphan works, subject to satisfactory safeguards for the interests of both owners of ‘orphan rights’ and rights holders who could potentially suffer from unfair competition from an orphan works scheme. (p.7)

This analysis of the problem is spot on and it is nice to see that the UK government explicitly recognizes the economic aspects of the hostage works problem. The solution outlined by the policy paper is not entirely surprising either. The UK government follows the diligent search approach that also underpins the EU directive. While the policy statement is not sufficiently detailed to fully evaluate these plans, a number of positive aspects stand out when comparing the proposed approach to the compromise text of the EU directive.

From the text of the UK policy statement it appears that the government intends to apply a less restrictive definition of diligence when it comes to searches that need to be carried out by prospective rights holders. It intends to balance this with the obligation to pay license fees for uses of orphan works and to hold these fees in escrow for a certain period of time on behalf of possible reappearing rights holders (the “Awaiting Claim” approach):

• Diligent search before something can be used as an orphan work is key to the scheme. The Government believes that it is important to strike the right balance between a relaxed standard of diligence and for an “awaiting claim” approach, as against ensuring that absent rights owners’ needs are protected. The Government is mindful of the need to ensure the process is sufficiently straightforward to be useful to potential users. The authorising body will verify the diligence of the searches.
• Commercial and non-commercial uses of orphan works in the UK will both be permitted, both to maximise the economic potential of proposals and because making a firm distinction between the two is difficult in practice.
• This permission should come at an appropriate price – a market rate, to the extent that one can be established (though the difficulties that may attend establishing that, for example in respect of works not created for publication that are in museums’ collections, are noted).
• This price should be payable in advance (or at agreed times if there is a royalty element) and set aside for any rights holders who may still appear even after a diligent search has not found them.(p.8)

As long as the standards for a diligent search have not been determined and as long as the licensing fees have not been established (which can be notoriously difficult as pointed out by Hugenholtz and Korteweg in this study) it is difficult to say what the effect of this will be on mass digitization projects and use of hostage works by memory institutions in general. In any case this approach should create much more certainty and predictability than the approach chosen by the EU. In addition this approach also enables commercial uses of hostage works—a clear advantage over the EU approach.

How this approach relates to another important criticism raised by COMMUNIA—the fact that there is only a very limited list of potential beneficiaries who will be allowed to use hostage works under the EU directive—is not entirely clear from the UK policy statement. At first reading it appears that use by parties other than existing memory institutions might be possible, but we will need to wait for further details later in the legislative process. Needless to say we would urge the UK government to explicitly endorse use by a broader set of beneficiaries.

All in all these are substantial improvements over the proposed EU directive. The UK government recognizes this by making it explicit that the scope of uses enabled by their proposal is wider than the one of the EU directive (although the part about the exception is a bit confusing since the EU directive requires implementation in the form of an exception):

The scheme will not take the form of an exception to copyright, but will be based on authorisation by an independent body, i.e. not the same body which wishes to exploit the orphan works.

The UK scheme will be compatible with the emerging European system, as set out in the draft Directive, but broader in applicability (in particular allowing commercial use in the UK) to maximise potential benefits to the UK. (p.9)

It’s unfortunate that these extra possibilities and the less stringent approach will most likely not be implemented at the EU level, but at least the UK proposal points to an approach wherein more progressive member states will provide additional room for users of orphan works within their own territorial boundaries. This of course will lead to further splintering of EU copyright legislation which will make it more difficult for the EU to finally create a single digital market (one could argue that this means that with the orphan works directive the Commission has not only failed to address the issue it wanted to address, but that it has also shot itself in the foot doing so).

Extended Collective Licensing

Extended Collective licensing (ECL) is often seen as a different approach to the hostage works problem and the larger copyright issues presented by mass digitization projects. The European Commission has largely sidelined this approach with the orphan works directive (although Article 1.2c of the proposed directive ensures that the two approaches can coexist). Many memory institutions view ECL as a very promising approach and therefore it is good to see that the UK government is proposing to introduce legislation that will allow ECL arrangements on a voluntary level. Having this approach available alongside the diligent search model provides memory institutions and rights holders additional options to manage large scale digitization projects and to operate in the digital environment.

The post UK government proposal to modernize copyright underlines failure of EU approach to hostage works appeared first on COMMUNIA Association.

Given all of the above, it is unfortunate that the text also is a legislative train wreck that fails to make any substantial improvements to the situation in which memory institutions engaged in digitization efforts find themselves. The compromise text of the proposed directive (‘compromise’ refers to a compromise between the three EU legislative bodies the Commission, the Council and the Parliament, not a compromise between the many stakeholders affected by this legislation) has essentially abandoned the initial purpose of the proposed directive. That purpose was to ensure that the public gains access to those works that are held hostage by the copyright legislation that has failed to keep up with social and technological change. Instead, the proposed directive has morphed into a twisted attempt to protect the ideology underpinning 20th century copyright legislation against the effects of the problems created by the rigidity of this very ideology.The compromise text reaffirms the principle that no matter what situation we find ourselves in, we need to be guided by the ideology that it is the exclusive right of authors to determine what society can or cannot do with the bits and pieces of cultural production that make up our shared culture. The proposed orphan works directive re-affirms this principle even in the situation where the limitation of this approach is most visible:

No one benefits from the fact that works protected by copyright for which a rights holder cannot be located cannot legally be used: This is true for the authors who have created these works, the memory institutions that have invested considerable resources into collecting and preserving these works, and the general public that is funding these efforts and wants access to these works. Legislation that would enable memory institutions to make use of these works without having to jump through complex hoops for the simple sake of pledging allegiance to the principles of 20th century copyright law would benefit all of these stakeholders: authors would see increased access to their works (and would be provided with the ability to re-claim control over their works if they so desire), memory institutions would be free to focus their resources on their core mission of providing public access to culture, and the public would have access to a much wider spectrum of works and could build upon them.

Looking at the compromise proposal, none of this is very likely to happen on a substantial scale.

There are several positive aspects of the compromise proposal. Looking back at the COMMUNIA policy paper that was published in reaction to the original Commission proposal, and at our first guess on the compromise text, we can conclude that the co-legislators have agreed on a text that solves most of the technical problems that we pointed out: the directive now also applies to unpublished works, it can be applied to ‘partial orphans’, and it no longer ties the use of specific types of works to specific types of memory organizations.

Also on the plus-side is the fact that in order to allow memory institutions to use orphan works, the directive creates a new Europe-wide exception to copyright. This approach is interesting insofar as it hints to a new thinking about copyright policy making in the EU. In doing so, it could free itself from the restrictions derived from the limited list of exceptions to copyright that was introduced by the 2001 copyright directive.

But this is where the positive parts of the compromise end. At the core of the compromise are four substantial shortcomings that – taken together – render the directive effectively useless. These shortcomings affect the way hostage works are identified as being ‘orphan’ works, the way reappearing rights holders have to be compensated, the way these works can be used, and the group of beneficiaries that can actually use them.

1. With regard to the identification of ‘orphan works’, the directive requires that ‘a diligent search is carried out in good faith for each work‘ by the memory organization attempting to use such a work. Memory organizations have repeatedly pointed out that conducting a diligent search for each work makes making available ‘orphans‘ prohibitively expensive and will likely mean that the directive will not be used in mass digitization projects.Regardless of these complaints by the very organizations that are the intended beneficiaries of the directive, this issue has not only failed to be addressed, but has even been made even worse. The compromise text adds the requirement that the diligent search is carried out ‘in good faith‘. This language introduces a second layer to the legal test that an organization making use of the directive could potentially fail to pass.

   This has the effect of both increasing the risk for memory institutions and also insulting them by insinuating that they exist to purposely harm rights holders (The same is true for the newly inserted recital 16a that reminds the memory institutions of the obvious fact that they risk remedial action under copyright if they wrongfully identify a work as being ‘orphan’ work).

   Therefore, instead of addressing the very real concerns over the usefulness of the directive, the compromise text creates even more legal uncertainty for those memory institutions who are intended as the beneficiaries of the directive.

2. This uncertainty is made worse by the introduction of a requirement to compensate rights holders for past uses of their works if the rights holders reappear and claim their works (thus ending the works’ ‘orphan’ status). The initial Commission proposal did not contain such a requirement (it only stated that reappearing rights holders have a right of compensation for future uses), which provided reduced financial risks for organizations making available ‘orphan‘ works over the current status quo.The introduction of the requirement for retroactive compensation means that even after an organization has invested into a diligent search, it continues to face financial risks, thus reducing the appeal of the directive for its intended beneficiaries even further.
3. Third, the compromise text of the directive does not change the limited list of permitted uses of the Commission proposal. According to the directive, memory institutions may use orphans ‘by making them available‘ and ‘by acts of reproduction […] for the purposes of digitization, making available, indexing, cataloging, preservation or restoration‘.This list of allowed uses is problematic in two ways. First, it refers to uses that are not covered by the copyright directive (cataloging and indexing), which can be seen as a subtle attempt to expand the reach of copyright protection. Second, a limited list of uses is fundamentally shortsighted in a situation of rapid technological change. In order to provide some room for memory organizations to adapt to new technologies, the directive should allow the beneficiaries to use ‘orphan’ works for the purpose of carrying out their public interest mission without creating an inherently incomplete list of only specifically-sanctioned uses at the time of publication of the directive.
4. Finally, the compromise text contains the same limited list of beneficiaries as in the Commission proposal: The directive only allows uses of ‘orphan‘ works by ‘publicly accessible libraries, educational establishments or museums, as well as archives, film or audio heritage institutions and public service broadcasting organizations‘ in the context of their public interest missions. As we have argued in our policy paper, this is far too limited in the context of how cultural works are currently being accessed:
   

   [The beneficiaries named in the directive] are not the only sources of access to our shared culture and heritage. It is COMMUNIA’s position that the group of users who may benefit from the orphan works directive should be widened potentially to include everyone. The targeted group of end users should include individual end users and non-profit initiatives like Wikipedia, which would currently not benefit from the proposed directive. […]

   In this regard, the proposed directive falls short of recognizing the changes of how we access and deal with cultural heritage. Europeans are increasingly accessing and using cultural heritage information without mediation by the formal institutions that the proposed directive targets. This development will likely continue in the future and any legislative proposal that does not take these changing realities into account will only worsen the situation by cementing the status quo-ante.

   In addition, this limitation also means that it will be very difficult for memory organizations to form public-private partnerships (PPPs) to digitize ‘orphan‘ works. The main incentive for private parties engaging in PPPs with memory organizations is that they can make the digitized works available through their own services. As long as commercial partners are not entitled to use ‘orphan‘ works, such partnerships will need to steer around digitizing ‘orphan‘ works.

All of this means that the compromise proposal will do very little to address the problem it is intended to solve. The memory institutions made this clear when Informations sans Frontières listed 6 problems that needed to be fixed before they could recommend approving the directive. These include three of the four problems outlined above which are still present in the compromise text. Given this the memory organizations would be well advised to make it clear that the compromise does not help them in a significant way.

However, it is not only the memory organizations who should be concerned. This piece of legislation is also a defeat for the Commission. In their quest to adapt copyright to the digital age, they have – under substantial pressure from rights holders – failed to arrive at a legislative intervention that delivers on this goal. At the same time when the Commission is aggressively pushing for an open data strategy that calls open data ‘the new gold that needs to be made available for re-use by anyone‘, it has produced a directive that effectively keeps large parts of 20th century cultural data locked away in the archives and basements of memory institutions.

The orphan works directive presented an important opportunity to broaden the Public Domain by including those works that have been abandoned by their rights holders. What we have received instead is a directive reaffirming the primacy of copyright over the interests of the public and of society at large.

Ultimately, the limitations of the compromise text points us to the need for real reform in the way society grants protection to the creators of cultural and scientific works. We should only award exclusive rights to those creators who want them and who will use them responsibly by not abandoning their works. This can be achieved in a relatively straightforward way by requiring that creators register those works that they want to have protected by exclusive rights and that they renew this registration periodically. Implementing this requires a willingness of all stakeholders to revisit the principles underpinning the current regime of copyright protection. Unfortunately, the ‘orphan‘ works compromise shows us that this willingness does not yet exist.

The post ‘Orphan works’ compromise fails to deliver appeared first on COMMUNIA Association.

Based upon the draft Directive on certain permitted uses of orphan works tabled by the Commission in 2011 (COM/2011/0289), about which COMMUNIA expressed some Policy Recommendations, the two European regulation bodies have come to an agreement. Although the deal is said to be ‘informal’ (it still has to get final approval from the Parliament’s Committee on Legal Affairs, Parliament as a whole and in the Council), it shows the ongoing efforts of the European regulator to move on with the ‘orphan works’ issue. The text of the agreement has not yet been made available. According to the press-release from the Parliament’s Committee on Legal Affairs:

“This legislation would allow everyone to access such “orphan works” and take forward the project of making Europe’s cultural heritage available online.”

It seems that the agreement would not bring major changes to the Commission’s proposal. This lets us think that our concerns about the shortage of the Directive are to remain, especially as regards its impact on the digital Public Domain. Nevertheless, a few elements unveiled by the press-release deserve some comments.

‘Orphan’ status granted after ‘diligent search’:

According to the Directive proposal, a work would be deemed to be ‘orphan’ if, after a ‘diligent’ search made in good faith, it was not possible to identify or locate the copyright holder. The Parliament and the Council concur with the Commission, without adding further precisions about the criteria to be applied to such a ‘diligent search’ process imposed to users.

COMMUNIA argued that the ‘diligent search’ process as proposed by the Commission was flawed and short-sighted. In the meanwhile, the Parliament and the Council seem not to have ceased the occasion to improve the criteria set forth by the legislation proposal, which do not enable full potential of ‘orphan works’ uses and fail to guarantee legal certainty for ‘orphan works’ users.

For ‘any audiovisual or printed material’…

The Parliament and the Council agreed on the categories of works being encompassed by the ‘orphan work’ status, while adding some elements to the Commission’s proposal. The press-release states that ‘orphan works’ status would cover:

“(…) any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.”

Whereas photographs were surprisingly absent from the Commission’s draft (as it was already highlighted in our Policy Recommendations), their express inclusion as a category of works eligible for ‘orphan’ status would be an improvement.

… even unpublished:

As the EU Council had already opened the door to include some unpublished works into the scope of ‘orphan works’ – albeit rather timidly and not fully in line with COMMUNIA’s Policy Recommendations arguing for a clear inclusion of unpublished works (as ‘the orphan works problem is especially acute in respect of unpublished works’) – the message seems to be reasserted more strongly in the latest draft legislation document worded under the Danish Presidency. According to the press-release:

“[The ‘orphan’ status] would also apply to works not published but nonetheless made available by institutions, provided that they could reasonably assume that the right holder would not object to this act.”

Even if the inclusion of unpublished works is still not clear enough and does not fully cope with the ‘orphan works’ problem, the EU regulator seems to be ready to guide Member-States in this respect (contrary to the former Polish Presidency note leaving Member-States decide whether unpublished works could also be deemed as ‘orphan works’).

Securing the interests of public institutions:

The Parliament says to have secured provisions to make it safer and easier for public institutions such as museums and libraries to search for and use orphan works. These provisions would aim at limiting the risk from future copyright infringement claims (the press-release quotes the example of the Google Books project having been blocked in court).

When right-holders come forward to claim their rights on a work after it has been placed on line, the Parliament and the Council would like to limit the amount of money public institutions would have to pay to authors as compensation:

“Compensation would have to be calculated case by case, taking account of the actual damage done to the author’s interests and the fact that the use was non-commercial. This should ensure that compensation payments remain small.”

Such a wording would tend to place public institutions’ interest in front of those of authors in situations where the latter claim rights later in the process of ‘orphan works’ use. The Parliament and the Council say to have further agreed on a new provision allowing public institutions to generate some revenue from the use of ‘orphan works’ to pay search and digitisation costs.

However, we still don’t know the exact wording of these provisions and their genuine impact on ‘orphan works’ use for public institutions.

Lidia Geringer de Oedenberg (Polish MEP for the S&D), who is heading the negotiations on this legislation as Rapporteur in the Parliament, welcomed the deal as a: “first step towards harmonisation of copyright rules in the EU“. Although this assertion sounds rather sibylline in the context of an EU copyright regulation already containing several harmonization Directives, it reflects the high expectations the European regulator has about the legislation on ‘orphan works’ within the whole EU copyright legal system.

In the meantime, we are waiting for the consolidated version of the Directive to be formally released to further comment on it. More to come soon (probably this week).

The post ‘Orphan Works’: European Parliament and European Council Announce Agreement on Draft Legislation appeared first on COMMUNIA Association.

Loren states that the term, which was first introduced in 1999, overlooks the core of the problem:

These works are being held hostage by a set of rules that result in an inadvertent lock-up of the expression these works contain. (p.22)

In the context of hostage works, the incentive for creation functioned as intended: the work was created. But the incentive for distribution has actually backfired. Instead of a risk of underinvestment in distribution we have a manifestation of such underinvestment. Copyright protection is obstructing distribution, not enabling or facilitating it. This is a type of waste: copyright law is “inhibiting access . . . without any countervailing benefit.” In addressing the hostage work problem, we should be focused on a solution that reduces the waste by removing the barriers to non-owner distribution. (p.23)

Focussing on the hostage status of these works helps with devising a system that can deal with the manifest market failure that hostage works represent. While Pallas Loren’s paper discusses possible solutions against the backdrop of US copyright law, her arguments are surprisingly powerful in understanding the current discussion on the European Union level. As we have pointed out before, the current legislative discussion is likely to make the hostage works problem even worse. This is partly to blame on the framing of the problem as an ‘orphan works’ problem that results in a focus on re-uniting these works with their ‘parent-authors’ and protecting them against inappropriate exploitation.

In the second half of her paper, which proposes a solution to the problem, Loren suggests focusing on the role of access facilitators such as libraries, museums and archives (whom, in an somewhat questionable extension of the hostage works metaphor, she refers to as ‘special forces’) and their role in setting hostage works free:

The access facilitators are those entities that are interested in distributing copies of the orphan works themselves but fear the infringement liability for doing so. Libraries, archives, museums and other similarly focused entities see providing access to these works as helping to advance their core mission of spreading knowledge in their fields. (p.23)

[These] access facilitators really are the “special forces” that are freeing the hostages. This role will typically be played by libraries, museums, nonprofit educational institutions, archives, and public broadcasting entities, although my proposal is in no way limited to these entities. In addition to the public that will be obtaining access to a work previously held hostage by the rules of copyright, an important beneficiary of the actions of these special forces will be the derivative work creators who should be able to rely on the identification of works as hostage works and, particularly as time passes without a copyright owner surfacing, be willing to use such works. (p.25)

Loren argues that what is needed is a set of defined rules for access providers that engage in freeing hostage works that need to be coupled with reasonable incentives for the access providers to undertake this effort on behalf of the public at large:

Freedom for hostage works comes in the form of reliable information concerning the copyright status and the copyright owner of the work. Through the sharing of reliable information, the hostage works will be freed for exposure to interested audiences and potential users of such works. Existing databases can assist with the search for such information, but someone must invest resources in researching those databases, connecting the discovered information to a particular work, and disseminating the information discovered. Thus, creating incentives to produce and publicize this type of high quality information should be a prime focus of any approach to solving the “hostage work” problem. (p.26)

This approach sounds a lot like the approach proposed by the Europeana Commission in it’s original proposal for a directive on certain permitted uses of orphan works. As we have pointed out before the proposed directive has become watered down quite a bit especially where it comes to the incentives that encourage access providers to undertake this work. The initial proposal contained provisions that would have offered some form of immunity from legal and monetary liability to access providers that would follow a diligent search according to criteria defined by the directive. This closely mirrors the solution proposed by Loren:

I propose an immunity from monetary liability for entities that act as responsible “special forces” and free hostage works so long as the entity satisfies two criteria. First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. […] Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.(p.27)

This last part of her argument is really interesting and goes beyond what has been proposed so far. The open access requirement for freed hostage works not only prevents freed hostages from being monopolized by another entity, it also underlines the public service nature of the act of freeing such works:

The requirement of providing open access to the work is a way to ensure the public benefit in return for granting a reduction in liability. In a quid pro quo arrangement that is a familiar way to think about the exclusive rights granted by intellectual property protections, I suggest that the public benefit is best accomplished by a requirement to provide a open access copy of the work with attached information concerning the copyright and copyright owner status.(p.27)

The argument brought forward by Loren of linking open access versions together with the information gathered in the process of trying to identify the rights holders is not only essential to solving the hostage works problem, it also points to a new role for cultural heritage institutions in the digital environment:

The information that is gathered and disclosed by the special forces in connection with the open access copy must not be subject to claims of exclusivity. For example, that data should be released under express conditions of no assertion of ownership in that information. This type of metadata must be freely and widely available for re-use. One way to satisfy this important responsibility would be to employ the Creative Commons Zero Universal Public Domain Dedication, a legal tool developed to make data available without restrictions on re-use.

Requiring public disclosure of the hostage freeing information permits inspection by others, and may, in fact, lead to the identification of the copyright owner. If that occurs, that copyright owner should then be able to have the provenance information corrected and, if the owner desires, have that work removed from the open access repository. (p.35)

The required infrastructure for this is of course already in place. Over the last couple of years the European Commission has invested millions of Euros into Europeana, a platform that can provide access to open access copies of liberated hostage works as well as the related hostage freeing information.

The only piece of the puzzle outlined by Pallas Loren that is currently missing is the political will to enact legislation that is focussed on liberating the vast amounts of works held by publicly funded memory institutions that are currently held hostage by copyright. Unfortunately the current legislative proposals seem to be caught up in the ‘orphan works’ logic and primarily focus on re-uniting these works with their parent-authors. Pallas Loren’s paper is a powerful and well-argued reminder why this ‘solution’ will benefit no-one and how a real solution could look like.

The post Time to change perspective: Hostages, not Orphans appeared first on COMMUNIA Association.