The answer lies not in copyright law but in the Italian cultural heritage code, Article 108 of Legislative Decree no. 42 of 2004 to be precise. This article of administrative law imposes a concession fee for the commercial reproduction of publicly owned works to be paid in advance to the institution delivering the work. Notably, the approach is also different from the concept of the Paying Public Domain or domaine public payant that exists in a number of African and Latin American countries and which taxes all uses of Public Domain works. Under the Italian cultural heritage code, fees need only to be paid for works that are held by Italian cultural heritage institutions and directly to that institution, not to the Italian state.

Cultural heritage laws should promote the public interest

We are aware of similar laws existing in Greece (Article 46 of Law no. 3028/2002 on the Protection of Antiques and Cultural Heritage in General), France (Article L621-42 of Code du Patrimoine) and Portugal (Administrative Order no. 10946/2014 on the Use of Images of Museums, Monuments and other Properties allocated to the Directorate-General for Cultural Heritage). Importantly, administrative law in general and this type of cultural heritage code in particular operate on a different logic than intellectual property law, as Simone Ariprandi explains in greater detail. Administrative law as an area of public law governs relations between legal persons and the state and not relations between private individuals. The intention is thus to promote the public interest and not to protect the private interests of authors.

The problem is that this law does quite the opposite of promoting the public interest by de facto curtailing the Public Domain. The Public Domain is an essential component not just of our copyright system, but essential to our social and economic welfare, as expressed in our Public Domain Manifesto:

[The Public Domain] is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The Public Domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction — close to zero — and that all members of society can build upon it.

Imposing a fee for the use of certain Public Domain works restricts access to these public goods and thus stifles creativity. COMMUNIA is built on the conviction that the Public Domain must be upheld and guarded against attempts to enclose it from both public and private actors if we want to ensure the widest possible access to culture and knowledge and creativity to thrive.

Users should be trusted

So why do some EU countries exploit the physical ownership of works for which copyright has long expired? There are two main reasons, which from the perspective of national lawmakers might justify this measure. The first one is financial. The second one could be a paternalistic argument to retain some control over the artifacts held by national cultural heritage institutions and shield them against alleged misuse.

The financial argument does not stand up to a simple cost-benefit analysis. Fees collected through this mechanism do more harm than good, and any revenue generated is far outweighed by the heavy cost for members of society who are deprived of their fundamental right to access and enjoy culture, knowledge and information.

The notion that artists like Botticelli et al. and their work require protection from the general public is also easily dispelled. While we understand that masterpieces like the Birth of Venus are closely associated with the Uffizi and representative of Italian culture in general, this does not justify a financial barrier to the reuse of Public Domain works. There is also little evidence for the inappropriate use of Public Domain works, as stated in CC’s “What Are the Barriers to Open Culture?” report. Thus, we do not see a basis for retaining control by pricing out unwanted uses to ensure that no harm is caused to the reputation of the work, the author or the institution itself. We believe to the contrary that in an open society, the public must be trusted and enabled to make uses that are in line with fundamental freedoms, including freedom of expression.

It is unlikely that the Uffizi are worried that the commercial exploitation of the Birth of Venus per se would create a reputational risk, since this contradicts the institution’s own practice of exploiting its works of art for commercial gain. It is of course a question of personal taste whether one likes Gaultier’s printed multicolor tulle lounge pants or not. Yet a quick look at the Uffizi webshop reveals that the institution is by no means shy to market Botticelli’s masterpiece in similar ways. The visitor will find a shopping bag, a spectacle case (including a spectacle cloth), an oven glove and similar artifacts all incorporating Boticelli’s painting in some way or another. To be clear, the Uffizi should use works from their collection as they see fit to generate income. But to claim that museum professionals know better how to place the Birth on an oven glove is dubious at best.

Botticelli created the Birth of Venus during the 1480s — more than 500 years ago — and yet it remains so iconic not in spite of Jean Paul Gaultier, the Simpsons and other commercial creators referencing or incorporating the work but because of them. The transformative use of the Birth — even in a commercial context — doesn’t diminish the work, but keeps it relevant and ensures that it lives on as part of our cultural memory.

In sum, Italy’s cultural heritage code, although promoting important principles such as preservation and protection of heritage, poses a threat to the public domain, to the detriment of creators, reusers and society as a whole. While the best way forward is to remove this provision from the Italian cultural heritage code, there is in the meantime room for agency for cultural heritage institutions. Cultural heritage institutions can better fulfill their mission and still operate within the scope of the law by choosing not to request the payment of a fee by reusers of public domain heritage. The Uffizi should lead by example and withdraw its claim, and celebrate how cultural heritage is continuously being reinvented in new and unexpected ways through free creative expression.

The post The Uffizi vs. Jean Paul Gaultier: A Public Domain Perspective appeared first on COMMUNIA Association.

While at the beginning of the week only three Member States had fully implemented the Directive (the Netherlands, Hungary and Germany), and could therefore be scored on all performance levels, it is already possible to track the level of activity across the board. As more Member States reach the finish line, we will attribute final scores and throw them into the contest. 

The first, second and third places (so far!)

So far, Germany is the front runner: the Federal Ministry of Justice and Consumer Protection held a transparent and inclusive discussion, which lasted for more than a year, and set a high standard for protecting user rights against overblocking. Hungary is in second place, in part due to the bonus point it got for fast-tracking the implementation of the new digital education exception, during the outbreak of COVID-19, having created room for remote teaching while educational institutions were closed. The Netherlands have been the first out of the door, with a draft text ready for an online consultation less than a month after the publication of the Directive, but the Dutch government failed to demonstrate its commitment to protecting user rights in the implementation, pushing it to the third place so far (with the possibility to still earn some extra points, if the Minister of Justice decides to make use of the power that received in the implementation law, to provide further rules for the application of Article 17).

France and Denmark, which have rushed to implement on time only the provisions that strengthen the position of creators and right holders, have been scored for the implementation of Articles 15 and 17, but will only officially enter the contest once they have implemented the remaining parts of the Directive.

Skipping the parliamentary debate

At this point, all Member States (except Portugal) have, in some way or another, initiated the legislative procedure, but some processes have been far from transparent or inclusive. In France and Italy, the Parliament delegated the legislative powers in the government, meaning that those countries will skip a central stage of the democratic process, which is the parliamentary debate and vote over the concrete implementation proposal put forward by the government. In France, where the Ministry of Culture went through the implementation of Articles 15 and 17 without providing any opportunity for stakeholders to share their views and concerns about those provisions, no public consultation is expected for the remaining parts of the Directive. In Italy, the Ministry of Culture is said to be planning to, at least, run a public consultation once its draft decree is finalized.

In Ireland, the Department of Business, Enterprise and Innovation held a series of public pre-draft consultations, each focused on a different part of the Directed and all carefully prepared, but a few days ago announced that the Directive was going to be transposed into Irish law by way of regulations contained in secondary legislation, without submitting the actual draft law to public discussion and without further parliamentary debate.

In Spain, a first round of public pre-draft consultations was organized at the end of 2019, but since then the Ministry of Culture went silent, leaving meeting requests by civil society representatives unanswered, while at the same time meeting with collecting societies and other industry representatives. Most recently, there have been rumours of a Royal Decree that would give the Spanish government the power to also implement the Directive without any further parliamentary deliberation.

Portugal is the slowest country so far (it has not published any draft text and has not even organized a public consultation), and civil society representatives have also been treated less favourably by the Ministry of Culture than representatives of rightholders: the latter have been invited to provide feedback on the implementation and have been granted the opportunity to meet with the Minister of Culture, while meeting requests sent by civil society organisations (including by COMMUNIA) to the Ministry have been left unanswered.

Meaningful consultation procedures: some more, others less

Fortunately, the procedures in that handful of countries seem to be the exception, rather than the rule. The vast majority of Member States attempted to give all stakeholders, and not only a selected few, opportunities to participate in the discussions. Some countries decided to consult stakeholders at the very beginning of the process, before embarking in the drafting process, others kept discussions alive throughout the process, and others yet reserved most time for dialogue after releasing the draft.

Of the 19 Member States that organized pre-consultation processes, 8 held formal consultations, 8 opted for setting up working groups or entering into other forms of dialogue with stakeholders on the provisions of the Directive, and only 3 organized both a consultation and meetings with stakeholders before starting the drafting process. After the release of the draft, 7 countries organized formal consultations, 6 engaged in dialogues with stakeholders, and 2 (Germany and the Netherlands) opted by running formal consultations and engaging also in constructive dialogues with the stakeholders.

So far, Greece, Italy, Finland, Malta, Norway, Portugal, Poland, Spain, Sweden are the only countries that have not publicly released any draft implementation text. France and Denmark have yet to release proposals for the parts of the Directive that have not yet been implemented.

It is safe to say that the Eurovision DSM contest is far from over, and that the results can still change dramatically. We will keep tracking the process and updating not only each country’s scores, but also each country’s page in our implementation tracker, where detailed information and documentation about each process can be found.

The post Eurovision DSM Contest: the once in a decade copyright reform contest appeared first on COMMUNIA Association.

As we have noted before, Portugal is, along with France and Spain, one of the countries that supports the Commission’s plan to force online platforms to install upload filters that would prevent any uses of copyright protected not explicitly approved by rightsholders. Portugal has also been pushing forward amendments proposed by the French Government that would significantly change the way online platforms operate. Under the rules proposed by the French, operating open platforms would only be possible with permission from rights holders.

Portugal can still make it right!

The signatories of the letter acknowledge the negative impact that such proposals would have on the fundamental rights of the Portuguese citizens and on the booming Portuguese ecosystem of startups and entrepreneurs, which is as important to the Portuguese economy as the tourism industry. They, thus, ask to the Portuguese Government to depart from its initial position, which privileges the interests of a small class of commercial copyright holders, and to embrace the future of digital innovation instead.

This open letter is yet another reminder that copyright policy cannot be based on the interests of commercial rightsholders alone and a reminder that it is important to challenge the positions of national governments on this important issue (see this helpful overview by MEP Felix Reda for other governments that need to be reminded that we need copyright rules that embrace the future instead of the past).

The post Open Letter challenges Portuguese Government’s position on art. 13 appeared first on COMMUNIA Association.

What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.

Download the Best Case Scenarios #fixcopyright poster

So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.

We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:

1. Balance copyright with the public interest

All copyright exceptions we featured have one crucial thing in common – they always negotiate the exclusive rights against an important public interest. Literally each use can strike that balance differently and no regulation can envision all life situations.

Freedom of expression includes quoting, documenting or criticizing somebody else’s work. Securing access to modern education is so important for societies that it is fundamental to use all sorts of copyrighted materials in class instruction, lectures, tests, research, etc. Public interest justifies the limitation of rights holders’ prerogatives. A good exception is grounded in a right that is a fundament of a free, democratic society.

2. Open up to all sorts of use

In our fast-changing world, devising regulation that works only for a certain type of use is pointless. We see that with copyright everyday: provisions that had worked when music was distributed on CDs are dysfunctional in the age of internet.

So if you want an exception to work, do not write it for today’s technology – use broad terms that let people reproduce, distribute, communicate and make works available to the public, as well as  transform or adapt in any way they see fit and by any means technology allows them to.

3. Include all kinds of users

In today’s culture it is hard to say who is a creator and who isn’t. The teaching process takes place in a classroom but it also includes online instruction, non-formal settings and peer-to-peer learning. These conditions are constantly evolving and new settings for creation and teaching become widely recognized.

So if you want your copyright limitation to be truly great, consider that the circle of users who can benefit from it is not limited to labels such as “photographer”, “teacher”, “blogger” or “educational institution”. Do not limit access to specific groups of people.

4. If you have to limit, focus on the purpose

Some exceptions are limited in their purpose, just like the Estonian educational exception. It is broad and includes virtually everybody so if there was no limitation on it, it would effectively erase the use of copyright.

If there’s a must, the clever way to calibrate an exception is to focus on its purpose – in Estonia the broad educational use is only possible if it illustrates teaching and the process of learning in general. Any use that cannot be justified by the purpose is not considered to be exempted.

5. Consider benefits of commercial use

Users can benefit commercially from a parody in France or from a movie shot in a public space in Portugal. Consider that today it is very hard to determine if the use is commercial or not. If people post their pictures or memes on social media, would it be recognized as a commercial use? After all, Facebook is a commercial entity that monetizes the activity of its users.

An excellent regulation is a result of a cost and feasibility analysis. Would it be at all possible to enforce the non-commercial prohibition? Or would the cost and futility of it prevail over the benefits? If the answer to the latter is yes, allow use with a commercial benefit.

6. Make the use free of charge

The point of a copyright limitation is to make it simple, if not intuitive, for users to benefit from its existence. This would not be the case if a user had to pay for quoting a book or taking a picture of beautiful surroundings. In fact, if you have to pay, you can hardly call it an exception.

Copyright should enable rights holders to profit from creations. A copyright limitation is an exceptional case, where both the significance of public interest and the intuitiveness of use limit the copyright. Society benefits from it and the culture is richer. Make the use free.

You’ve now mixed all the ingredients, so make exceptions mandatory across EU!

The more flexibility EU allows in transposing its regulation, the more the legal systems in member states vary. Harmonizing the copyright in general and the exceptions in particular is crucial if we want to turn the Digital Single Market into something more substantial than a catchy phrase.

In Europe we have no internal borders anymore, but there are borders in the European internet and between member states’ copyright systems. These should be brought down, and the EU is in a unique position to do it.

Exceptions are a right and not a favour!

The good news is that we have many great copyright exceptions ready in the InfoSoc directive and waiting to be marked as mandatory across Europe. The hard work is done, EU, you can #fixcopyright with one simple provision and make Europe a better place!

• Download the Best Case Scenarios #fixcopyright poster
• Download the Best case scenarios for copyright – full brochure
• Read more at https://communia-association.org/bcs-copyright
• Talk to us: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post How to #fixcopyright with a great copyright limitation? A recipe for lawmakers appeared first on COMMUNIA Association.

Within the Best Case Scenarios for Copyright series we present Portugal as the best example for freedom of panorama. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Freedom of Panorama in Portugal legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Freedom of Panorama
Country: Portugal

What is freedom of panorama?

1. Derived from the German word Panoramafreiheit, freedom of panorama generally refers to the right to visually document works of architecture, sculptures, street art, or other copyrighted works, as long as they are permanently located in public spaces. In Portugal, the exception covers all sorts of documentation—not only photographs and video footage.
2. The exception is justified by freedom of expression and public interest.

How does it work?

1. All uses are exempted: users can share pictures, videos, drawings, or other reproductions of works located in public places. They are also permitted to create and share adaptations — all without infringing rights in the original work.
2. All works permanently located outdoors or in public interior spaces can be documented.
3. Users may benefit commercially from the reproductions and adaptations created under the exception, as long as such uses pass the three-step test (see “limits” below).
4. Users must give credit to the authors of the underlying works.

Who can use it?

Anyone can benefit from the freedom of panorama exception: citizens, individual artists,  organizations, and companies.

Is it free?

Yes, it is free. No remuneration is due to authors or rights holders of the featured work.

What are the limits to the freedom of panorama exception?

The three-step test: by law, uses are only exempted if they do not conflict with the normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the rights holder. A correct application of the three-step test requires a fair balance between  freedom of expression and the interests of the right holders.

Economic and societal impact

It is hard to imagine European culture and imagery without documentation of our public art and surroundings. Artists use city skylines, public architecture, and familiar landmarks as the raw materials to express collective and personal identities through painting, photography, and films. Historically, panorama artworks provide invaluable evidence to natural, urban, economic, and societal transformations over the centuries.

Examples of use

1. The Lisbon Municipality runs Galeria de Arte Urbana, a project presenting graffiti, street art and other urban artworks located in public spaces all over Lisbon to the public. GAU includes free publications on street-art made available online at Issuu, a Facebook page, where the Lisbon Municipality and fans alike post new entries regularly, and other social media activities that also promote urban art events.
2. Several Portuguese filmmakers and photographers rely on the freedom of panorama to create their own works. For instance, Mónica de Miranda is a Portuguese artist whose work is based on themes of urban archeology and personal geographies. Her art project “Underconstruction” (2009) includes panoramic photographs, photographs of buildings, and a panoramic video journey across a road in Lisbon, Portugal.

Law

• Article 75.º, paragraph 2, point q) of the Portuguese Code of Authors’ Rights and Neighboring Rights (Código do Direito de Autor e dos Direitos Conexos), created by the Decree-Law no. 63/85 of 14 March 1985 (as last amended by the Law no. 49/2015 of 5 June 2015)
• The wording is similar to the 2001 InfoSoc Directive: “the use of works, such as, for instance, works of architecture or sculpture, made to be located permanently in public places” without the author’s consent is permitted
• First introduced in 2004, with the implementation of the InfoSoc Directive

Why we chose the Portuguese example?

When it comes to the so-called freedom of panorama, Portugal has taken “full advantage of all policy space available” under the European Union law. This was achieved by almost literally transposing into national law the freedom of panorama exception “prototype” provided for in the “InfoSoc Directive” into national law – it has been argued that this is the best way to achieve the most flexible implementation of the optional EU exceptions. That is what Portugal has done.

Moreover, for freedom of panorama, instead of limiting the scope of application of the national exception to reproduction, communication to the public, making available to the public, and distribution, the Portuguese legislator decided to further apply the exception to include the unharmonised right of adaptation.

As a result of this national strategy, in Portugal we now find a relatively abstract norm that allows for a broad spectrum of unauthorised uses, provided that the three-step test criteria is met.

Further reference

For details on how the freedom of panorama functions in Portugal, please see the Best Case Scenario for Copyright – Freedom of Panorama in Portugal analysis prepared by Teresa Nobre, LL.M. IP (MIPLC) on behalf of the Communia Association.

• Download the Freedom of Panorama Factsheet
• Download the Best Case Scenario for Copyright – Freedom of Panorama in Portugal
• Download the Best case scenarios for copyright – full brochure

Read more at https://communia-association.org/bcs-copyright

Talk to us: Best Case Scenarios for Copyright: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post Time to #fixcopyright and free the panorama across EU appeared first on COMMUNIA Association.