The event was kicked-off by COMMUNIA president Paul Keller, who in his opening remarks (reproduced in full at the end of this post) argued for the need to put discussion about copyright policy back on the agenda of the EU legislator: three years after the adoption of the DSM directive, it is clear that the EU copyright framework remains a fragmented mess that does not adequately address the needs of users and creators in an increasingly complex digital environment. Paul Keller stressed that COMMUNIA hopes that the new set of policy recommendations will contribute to an open and respectful debate with policy makers and stakeholders from across the copyright policy spectrum about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by digital transformation for users and creators alike.

In a first reaction, MEP Tiemo Wölken (S&D) welcomed COMMUNIA’s ambition and highlighted the importance of improving the EU copyright framework in the context of ambitions to strengthen the digital public sphere in Europe. See here for a recording of his intervention.

His intervention was followed by the presentation of the new policy recommendations by Paul Keller and Teresa Nobre. In her remarks, Teresa highlighted the evolution of the recommendations to more explicitly address the concerns of both users and creators (instead of users’ rights, the new recommendations focus on usage rights) and the increasing importance of (procedural) safeguards against copyright abuse. Paul and Teresa then walked the audience through the 20 individual recommendations:

The presentation of the recommendations was followed by a reaction from Prof. Séverine Dusollier, who echoed the overall need to reform the EU copyright framework and welcomed the level of ambition contained in the new recommendations. See here for a recording of her reaction.

Opening remarks by Paul Keller

So why are we assembled here today and why are we launching a set of 20 policy recommendations for improving the EU copyright framework? Isn’t copyright policy a discussion that was wrapped up during the last Commission’s mandate? With the adoption of the DSM directive that followed almost three years of debate of almost unrivalled intensity?

We would argue otherwise. Yes, in the end the EU legislator managed to adopt a compromise. And yes, even the most controversial provisions of the DSM directive have been upheld by the Court of Justice. But that does not mean that the EU copyright framework is perfect or that it is fit for purpose. Looking back from a distance, the DSM directive has made the EU copyright landscape even more messy than before.

So far only 14 of the 27 EU member states have fully implemented the directive. And after last month’s decision by the CJEU it is very questionable if most of these implementations meet the Court’s requirements for fundamental rights compliance.

And while the DSM directive has harmonised (to some degree) some important aspects of the EU copyright framework — the protection of the public domain status of reproductions of public domain works, the new mandatory exceptions for education, text and data mining, and preservation of works held by cultural heritage institutions come to mind, the rules for access to out of commerce works and the rules strengthening the contractual position of authors and creator come to mind, important parts of the EU copyright framework are still very much fragmented.

While the implementation of the DSM directive would have been an opportunity for the Member States to update other parts of their copyright systems as well, national lawmakers have largely shied away from this opportunity. Only in very few cases have national legislators decided to reform national legislation in order to better align it with the objective of increasing access to knowledge and culture or to further harmonise rules across member states.

Exceptions and limitations that protect fundamental rights exist in some member states but not in others. Procedural safeguards to enforce usage rights are missing in action in most member states and the copyright framework still constrains too many activities that it should enable — for example e-lending.

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This all takes place against a background of a substantial strengthening of usage rights, both through recent CJEU case law but also through the language of the final article 17 compromise that helped the DSM directive across the finish line. As we have discovered over the last three years, Article 17 does contain in itself a number of elements that substantially strengthen the rights of platform users.

After the amount of opposition against Article 17 from us and many others this feels somewhat counter-intuitive, but who would have thought that what was proposed by the Commission in 2016 as an attempt to curtail the liability privileges of large online platforms would become a vehicle for enshrining the concept of exceptions and limitations to copyright as users rights into the EU framework and at the same time harmonise the so far optional exceptions covering citation, caricature, pastiche and parody through the back door?

But as last month’s CJEU ruling also makes it clear, these conceptual changes will only become meaningful if the legislators implement accessible procedural safeguards for all types of platform users, be they consumers or creators.

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So with all of this in mind we think that it is high time to put copyright policy back on the agenda. The work is far from done and with important work on the big digital projects of this legislative period almost completed we think that it is time to start thinking about the future evolution of the EU copyright framework and the role of Europe in global discussions about copyright, so that the challenges and opportunities can be reflected in the agenda of the next European Commission.

By presenting our recommendations today we want to open the debate and give it direction. These recommendations will guide our work over the next decade and if our previous set of recommendations — which guided our work over the past 10 years is any indication — then we should see at least some of them becoming legislative reality by the end of Europe’s digital decade.

By launching the recommendations here today we hope to open a dialogue with policy makers and stakeholders from across the copyright policy spectrum and we hope that these policy recommendations can contribute to an open and respectful debate about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by the digital transformation for users and creators alike.

We are really looking forward to working with all of you on making these recommendations happen over the next couple of years!

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Our new policy recommendations address key policy opportunities for EU lawmakers to expand the Public Domain, increase access to and re-use of culture and knowledge and leverage the power of the digital transformation for society.

The policy recommendations will supersede the 14 existing policy recommendations that have guided our work in the past decade and have made a real contribution to the evolution of the EU copyright framework. On the 31st we will discuss the new policy recommendations with lawmakers, activists and academics. For this, we will be joined by MEP Tiemo Wölken and Professor Severine Dusollier (SciencePo).

After the launch of the recommendations (and of our new website), there will be a networking reception with the ability to exchange views with the COMMUNIA core team.

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

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Less than a year ago, we celebrated COMMUNIA’s 10th anniversary, assessing how its foundational 14 policy recommendations contributed to the expansion of the public domain during the 2011-2021 decade. At that time, we also announced that we would update our policy recommendations for the decade to come.

We have consulted with many copyright experts and key stakeholders over the past months to identify new priorities for the decade to come. That process has now come to an end and we are looking forward to presenting the results publicly, in an in-person event that will bring together EU policymakers and academics. The discussion will be followed by an apéro reception at the venue.

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

COMMUNIA

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To kick off the festivities, we reviewed the 14 policy recommendations that COMMUNIA issued 10 years ago to see what happened to them over the past decade (from 00:03 to 00:21 in the recording). As it turns out a fair number of them have been at least partially – or  even fully – implemented, in many cases thanks to advocacy work that we and our partners have done 

For the second part of the event, we brought together three friends from academia who have influenced our work in important ways to reflect on COMMUNIA’s work. 

First, Prof. Juan Carlos de Martin (Politecnico di Torino and founding father of the COMMUNIA project) reflected on what makes COMMUNIA a unique community which started 15 years ago as an EU-funded network and that continues the importance of public funding for communities advocating for the public interest to this day.

His intervention was followed by Prof. Bernt Hugenholtz (University of Amsterdam) who stressed that public interest copyright advocacy remains needed for the decade to come. In particular, he highlighted the need to ensure copyright exemptions for all public works and databases in the EU.

Finally, Prof. Pamela Samuelson (University of California, Berkeley) reminded the audience of the urgency of reviving the general interest in the public domain, which sometimes feels detached from society. In this context, she encouraged us to revive the interest for flexible exceptions to copyright in Europe.

After these contributions, Marco Giorello, the long-time Head of the European Commission’s Copyright Unit shared his thoughts on the future of European copyright policy (from 00:47 to 01:00 in the recording). As part of his intervention, he pointed out that the struggles connected to Article 17 of the DSM Directive are only the beginning of a much larger challenge to redefine the relationship between fundamental rights and automated copyright enforcement.

The event concluded with a panel discussion on the future of the EU copyright policy (from 01:01 in the recording). Catherine Stihler (Creative Commons) expressed hope for a more unified civic voice defending the Public Domain as we’re entering the next policy cycle (from 01:02 to 01:06 in the recording). Melanie Dulong de Rosnay (Centre Internet et Société CIS-CNRS), argued that strategic litigation is a crucial form of copyright advocacy, an area in which we haven just taken first steps (from 01:07 to 01:15 in the recording). Finally, Felix Reda (Gesellschaft für Freiheitsrechte) highlighted the need for public copyright registration systems to ensure the protection of the public domain, users rights and to ensure fairer remuneration flows in the online environment (from 01:17 to 01:24 in the recording).

We are grateful to all the speakers for their contributions and to everyone who celebrated our birthday with us. The discussion showed that our efforts to promote the public domain have borne fruit, yet we still have a long way to go. The event has shed a light on some of the policy challenges on which we should focus in the upcoming decade.

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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.

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