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.

The purpose of the refreshed directive is to promote the use of open data and stimulate innovation in products and services in the Digital Single Market. The directive says Member States should approach the re-use of PSI according to the principle of “open by design and by default.”

Communia has been active in the discussion on the legal framework for re-use of public sector information in the EU for many years, producing position papers in 2012, 2014, and 2018, and providing feedback to the recast proposal in July 2018. We’ve supported changes that would expand the scope of the directive, and pushed for increased legal clarity around aspects such as standard open licenses for PSI. The final Directive addresses some of our concerns, but after it is formally approved by the Council of the EU, it will be up to the Member States to implement the recast directive rules into their national laws. Transposition must be completed within two years.

Below we discuss a few pieces of the directive we’ve been following.

Article 8: Standard licenses

Article 8 states, “In Member States where licences are used, Member States shall ensure that standard licences for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically. Member States shall encourage the use of such standard licences.” Standard licenses, as defined in Article 2, means “a set of predefined re-use conditions in a digital format, preferably compatible with standardised public licences available online.”

The nod to standard open licensing is a step in the right direction. The directive says, “Any licences for the re-use of public sector information should in any event place as few restrictions on re-use as possible, for example limiting them to an indication of source.” The Commission should continue to push for liberal open licenses for the sharing of open data and public sector information (as they’ve even done internally with an updated policy for sharing Commission documents), because if Member States remain unclear about which licenses are acceptable for application to PSI, it could create confusion or interoperability problems. The European Commission’s 2014 guidelines provided a decent baseline for Member States, and recommended using Creative Commons 4.0 licenses or the CC0 Public Domain Dedication for the sharing of PSI. Communia urged the Commission to codify these guidelines, and also ensure accurate licensing metadata across PSI and open data portals that reflects those licensing options. The updated PSI Directive reaches for this ideal, but it’ll be up to the Member States to fully implement standardised, permissive open licensing requirements.

Article 9: Practical arrangements

Article 9 discusses practical arrangements such as the development of tools and online portals that make it easier for users to find and re-use open data and PSI. In relation to open licensing, it is important that search tools and repositories properly mark datasets and other documents with the appropriate license metadata, otherwise, users won’t be able to find and know how they can re-use a particular resource. For example, on https://www.europeandataportal.eu/ there are about 50 license options listed, including non-standard licenses, or standard open licenses with different spellings of what appears to be the same license. It will be important for Member State and EU-wide portals to ensure correct implementation of standard open licenses, and provide education to PSI publishers and re-users alike.

Article 10: Research data

Article 10 outlines how publicly funded research data has been included within the scope of the updated directive. It obliges Member States to “support the availability of research data by adopting national policies and relevant actions aiming at making publicly funded research data openly available (‘open access policies’) following the principle of open by default and compatible with FAIR principles.” This is a welcome expansion of the PSI directive and could help ensure — alongside various other EU policies promoting open access to research — improved re-use of publicly funded scientific data. While the provision is right to include important exemptions for personal data protection and security, other considerations such as “intellectual property rights,” “knowledge transfer activities,” and “legitimate commercial interests” will surely prevent at some PSI from being re-used. As described at TechDirt, it could now be “permissible for companies and academics to invoke “confidentiality” and “legitimate commercial interests” as reasons for not releasing publicly-funded data … Clearly, that’s a huge loophole that could easily be abused by organizations to hoard results.”

Article 12: Exclusive arrangements

The 2013 PSI directive update expanded to cover museums, archives, and libraries (including university libraries), and the current recast is claimed to “limit the conclusion of agreements which could lead to exclusive re-use of public sector data by private partners.” However, the rules on exclusive arrangements, particularly as they relate to cultural heritage institutions and the private companies they contract with for activities like digitisation, doesn’t seem to uphold the principle of broad re-use of cultural works considered PSI under the directive. Article 12 states, “where an exclusive right relates to the digitisation of cultural resources, the period of exclusivity shall in general not exceed ten years.” Apparently this exclusive giveaway to restrict re-use “might be necessary in order to give the private partner the possibility to recoup its investment.” The text claims that this window of exclusivity be “as short as possible, in order to respect the principle that public domain material should stay in the public domain once it is digitised.” It’s an insult to the public and our publicly funded cultural heritage institutions that private companies engaged in digitisation should be permitted to control access to re-use of these works for 10 years (or even longer), possibly keeping digitised works that should be in the public domain under private control.

Coda: Database rights

An important clarification in the final directive text is the provision that where databases fall under the scope of the updated PSI Directive, the public sector body responsible for the database may not use the Database Directive to prevent or restrict the reuse of documents. It’s a good (and long overdue) revision.

As we’ve seen, the recast of the PSI Directive takes positive steps to expanding re-use potential for publicly funded open data. But as usual, the devil will be in the details as Member States soon begin to transpose the directive into the national legislation. When they do, they should look for ways to ensure as broad re-use as possible by supporting standard open licenses, building repositories and portals that make it easy for users to find and re-use PSI, and limiting the exploitation of carve-outs by private entities who want to skirt the rules and keep publicly funded open data in the dark.

The post European Parliament Approves Updated Directive on Open Data and Public Sector Information appeared first on COMMUNIA Association.

This time, the European Commission has proposed to make more research data available, extends the scope to public undertakings (including transportation data), and further limits the scenarios in which public entities may charge for data. This proposal was preceded by public consultations (see COMMUNIA’s response).

We support the proposal to amend Directive, but at the same time we want to draw attention to some issues where the proposal should be improved. Below are our recommendations.

Re-use of research data held by educational and research establishments

We fully support the extension of the scope of the directive to “certain research data, a specific category of documents produced as part of scientific research, namely results of the scientific fact-finding process (experiments, surveys and similar) that are at the basis of the scientific process”. However, the extension of the scope of the directive in this respect should be combined with making them available under permissive open licenses (such as CC BY), or even put into the worldwide public domain using a tool like the CC0 Public Domain Dedication.

At the same time, the proposal excludes publications in scientific journals from its scope. The Horizon 2020 programme Model Grant Agreement already requires that grantees must ensure open access to all peer-reviewed scientific publications — meaning that “any scientific peer-reviewed publications can be read online, downloaded and printed.” It should go further to require that re-use rights be granted to both publications and associated datasets, by requiring that permissive open licenses be applied at the time of publication. For this reason, we urge the Commission to ensure that policy efforts to improve access to publicly funded scientific research (including the upcoming Horizon Europe framework) are complementary — and not in conflict with — each other.

As Member States will be obliged to develop policies for open access to research data resulting from publicly funded research while keeping flexibility in implementation, we urge the Commission to prepare guidelines in this area.

Open licensing as standard mechanism for sharing PSI

Unfortunately, the new proposal doesn’t go far enough in requiring open licensing for PSI. Instead, it only relies on the 2014 guidelines. The 2014 guidelines provided recommendations for standard licences, datasets and charging for re-use of documents, and put a lot of emphasis on the use of standard open licenses. Therefore we recommend the ​Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.

​Charging for re​-use

COMMUNIA welcomes improved language for clarity on charges and changes in the general rule of charging for PSI, which cannot be more than the marginal costs for dissemination. We are pleased that re-use of research data and the high value data-sets must be free of charge.

In our previous position paper we pointed that “works made available for re-use by cultural heritage institutions that are publicly funded should be available at the costs incurred similar to the public information bodies. It does not make sense that these CHIs can charge fees at a different scale than other PSI bodies seeing that they have similar tasks in providing access to publicly funded resources with minimal restrictions.”

Therefore, we recommend that cultural heritage institutions should only be able to charge marginal cost. The same rule should apply as well to publicly funded undertakings, which are also excepted from ‘marginal costs at most’ principle.

Third party intellectual property rights

In 2014, we noted that Recital 9 of the 2013 Directive introduces some uncertainty to understanding the scope of the Directive because of third party intellectual property rights. The issue of the interpretation of Recital 9 of the Directive was also addressed during a meeting with representatives of member countries under the ‘PSI Group’, which took place on September 10, 2014.

Recital 9 might be interpreted as implying that any document currently held by a library but originally owned by a third party and whose term of protection has not yet expired is a document for which third parties hold an intellectual property right, and therefore is excluded from the scope of the Directive. This reading seems contrary to the provisions established in Article 3 (consolidated version) and contradicts the overall objectives and principles enshrined in the Directive (to open ­up public knowledge for re­use). With this amendment, the Commission did not take the opportunity to clarify this discrepancy and left Recital 9 without major changes (new Recital 49).

This provision requires further investigation, but in our opinion the situation leads to a lack of harmonization of the scope of cultural heritage resources that are re-used and is not conducive to the creation of international projects, applications, and services that are based on cultural heritage resources.

You can read the entire document here.

The post The European Commission’s new proposal for re-use of public sector information: improving but some fixes still required appeared first on COMMUNIA Association.

The Commission’s evaluation study confirms some of our suspicions that the sui generis right is doing little to increase the production of databases in the EU. The report notes, “the effectiveness of the sui generis right, as a means to stimulate investment on databases, remains unproven and still highly contested” (p. ii). Perhaps not surprisingly, the report shows a split between the views of database producers and users. Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside other means of protection, such as contractual terms, copyright and technological measures” (p. ii).

The evaluation of the Database Directive

To recap the issue, the study is about Directive 96/9/EC on the legal protection of databases (Database Directive). The Directive came into force on 27 March 1996. It attempted to harmonise the copyright rules that applied to original databases, and also created a new sui generis right to protect non-original databases on which major investments have been made by database makers.

Last year the Commission launched a public consultation on the application and impact of the Database Directive. Communia responded to the consultation, and published a policy paper with recommendations for the future of the Database Directive. We argued that even though the Directive has successfully harmonised the legal protection of databases with regard to copyright, there is no clear evidence that the sui generis right has improved the interests of businesses or improved EU competitiveness by increasing the production of databases. And the introduction of the sui generis right has increased the complexity and confusion for database producers as well as users.

Our recommendations included the following:

• repeal the sui generis database right;
• harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
• if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right; and
• set a maximum term so that there cannot be perpetual extensions of database protection.

Exclude public sector data sets from the Database Directive

The study observes that many respondents to the consultation — including users and research bodies — “think that [the] sui generis right clashes with PSI directive … [and] that publicly-funded databases should be excluded from the sui generis right protection as official works under the copyright regime” (p. 120). The report concludes:

There is strong evidence that there is no coherence, a clash or no clarity or uncertainty as regards the relationship between the Database Directive or at least the sui generis right and the PSI directives and open access policies. The sui generis right is seen by many as a barrier to innovation and knowledge exchange and thus to economic growth as research and public data cannot be reused either at all (if refusal to license), or less fast or at a greater cost (p. 121).  

The authors of the report suggest that one possibility for intervention would be to remove the protection of the sui generis right for public bodies. This is aligned with the recent proposed revisions to the PSI Directive (released on the same day as this study), which includes a specific clarification that where databases fall under the scope of the PSI Directive, the public sector body responsible for the database may not use the Database Directive to prevent or restrict the reuse of the data.

Repeal the sui generis right? What is possible?

Regarding the future of the sui generis right, the report states, “The Commission may want to consider abolition. There is no evidence that the sui generis right has had a positive effect. There is evidence that it causes problems. There is evidence that it is not needed in the US” (p. 126). At the same time, the study recognises that such abolition “may be as daunting if not more than in 1996 because there are far more Member States and it will also be more costly than keeping the sui generis right as Member States will have to remove it from their law and then the EU will have to invoke another Directive or Regulation to harmonise parasitism and the sui generis right was meant to codify/replace parasitism in the first place” (p. 126).

In our earlier policy paper we called for the sui generis right to be eliminated altogether, with the fallback option being that the right should only be made available to those database producers who have registered for it. That way it would ensure that only those entities who actually need (or truly want) the right would get it. The study considers the recommendation provided by Communia, Creative Commons, Wikimedia, Copyright4Creativity, EDRi, and others to introduce a formality such as registration for database makers to receive the sui generis right.

The report recognises that this is indeed an legally-workable proposal: “Such a registration system would be entirely possible under international law, as the rule against the use of formalities in Article 5 of the Berne Convention applies only in relation to copyright aspects of databases” (p. 71).

Finally, the report comes upon a solution similar to what we recommended in our policy paper and response to the consultation:

Rather than abolishing the sui generis right, the European Commission might reflect on the advantages of (and any objections to) the following course of action:

1. Making the right available by registration;
2. As an EU-wide right;
3. Tailored so as to be balanced, with an array of exceptions equivalent to those conferred in relation to copyright generally;
4. Under an EU Regulation (so as to avoid the divergences that emerge in implementation);
5. With pre-emptive effect on national unfair competition law (so that, in the applicable field, one must register or have no protection) (p. 139).

The sui generis right has not stimulated the production of databases. Instead it has thwarted the legitimate interests of users to access information compiled in databases by creating a confusing legal environment in which users do not know if (or how) their uses are subject to the sui generis right. If full repeal of the sui generis right is not available (or would cause more difficulties), then the registration approach — combined with the harmonisation with copyright limitations and exceptions — is the reasonable path to take.

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The Commission’s 2017 review could lead to further changes to improve reuse of public sector information. We made several recommendations to strengthen access and reuse of PSI.

First, we recommend that scientific research results resulting from public funding should be made available under a permissive reuse rights regime as PSI. The Commission should ensure that policy efforts to improve access to publicly funded scientific research are complementary—and not in conflict with—each other.

Second, we suggest that a revised Directive should ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of PSI national legislations.

Third, we recommend the Commission codify their earlier guidelines on recommended standard licences for PSI, and also ensure accurate licensing metadata across PSI and open data portals that reflects these licensing options.

Finally, we suggest that a revised Directive should ensure that CHIs and public sector bodies that are alike in their aims and funding structure must only be permitted to charge fees for costs directly incurred in providing access. We emphasise the importance of suitable state funding for CHI which will also enable them to make as many resources reusable as possible.

While the Commission has made great strides with improving access to and reuse of public sector information in Europe, there’s now another opportunity to update the PSI Directive to make it maximally useful and impactful. If the Commission decides to amend the Directive, it should seriously consider the recommendations laid out in our policy paper.

You can read the entire policy paper here.

The post New policy paper on the 2017 review of PSI Directive appeared first on COMMUNIA Association.

But establishing a single framework, which enables the cross-border offer of products and services is not an easy thing. According to the last report of the PSI Group, Member States are struggling with many challenges while implementing the Directive into domestic law. As might be expected, the correct choice of licensing, charging and redress mechanisms are especially hard to solve.

In the recent Communia policy paper on the re­use of public sector information in cultural heritage institutions, we were  concerned that if Member States are not careful, the implementation of the changes required by the new Directive could do more harm than good when it comes to access to digitized cultural heritage in Europe. Work on the implementation of the Directive into Polish law shows that this scenario can happen in Poland.

In November 2014, Poland has published a draft proposal of the new bill, which assumes that documents held by cultural heritage institutions are within the scope of the Directive only if they are in the public domain, either because they were never protected by copyright or because copyright has expired.

The problem, therefore, lies in the fact that the remaining resources, even if the institution owns the copyright, have been excluded from the scope of the proposed law. The Ministry of Culture and Digital Heritage, which has been in favour of this very narrow reading of the Directive, believes that it should not apply either to works created by employees of institutions or to works, for which third parties have transferred rights to cultural institutions. What does this mean in practice?

Most importantly, re-use rules will not apply to such important information as descriptive metadata, bibliographic and catalog data. Without metadata and descriptions heritage resources will become useless for those wanting to re-use digital cultural resources. Similarly, public cultural institutions – for example modern art galleries – will still be able to restrict access to the information that they hold, even though it has been produced with public funds.

And such an implementation is in our opinion [see our policy paper p. 4-6]  contrary to the very principle that inspired both the 2003 and 2013 Directives and could lead to the creation of unnecessary hurdles to the re­use of public sector information.

What is maybe even worse, Polish cultural institutions will also be able to impose additional conditions – restricting commercial use (promotion or advertising) or allowing only certain forms and scope of reuse. Even for works that are in the public domain.

This implementation has the combined support of collective management organizations, museums (which in general are much more conservative than libraries in their approach towards digitization and sharing of cultural objects) and the Polish Ministry of Culture and Digital Heritage. One of the concerns raised is that the private sector will be able to build competitive services, museum catalogues or images banks, to those provided by the museums. But wasn’t it the idea of new PSI Directive? In general, it is surprising to see these organizations favour an approach that limits as much as possible reuse of cultural works – since such sharing is explicitly defined as part of their public mission.

All around the world, public domain is treated as the information that is free from intellectual property barriers. Anyone can use and reuse it, remix, combine and translate without obtaining permission. For commercial and non-commercial purposes. But no one can ever own it. In theory. Observing the legislative process in Poland, it becomes clear that in some countries the implementation of the new PSI Directive can indeed not only do more harm than good with regard to access to cultural heritage, but even threaten the idea of the public domain.

We hope that ultimately the Ministry of Administration and Digital Affairs – which is responsible for drafting the bill – will propose a law that supports a modern approach to digital cultural heritage and protects the Public Domain.  And that with time the Ministry of Culture and Digital Heritage will adapt Poland’s cultural policy as well so that allowing access and reuse is seen as part of the public mission, and not as threat to culture.

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The directive attempts for the first time to define a general framework for sharing cultural heritage information all around Europe. Under the amended directive, libraries, museums and archives are now asked to make parts of their collections available for reuse. In particular, documents in the Public Domain (either because never protected or because the protection expired) are under the general re-use rule of Art. 3(1), while documents in which libraries, museums and archives hold intellectual property rights are under the derogatory rule of Art. 3(2): only when institutions allow re-use are they under the obligation to ensure that the general re-use conditions are respected. Accordingly, the re-use requirements of the directive only apply to works that are not covered by third-party intellectual property rights.

While laudable in principle, the inclusion of cultural heritage institutions in the scope of the directive raises a number of questions related to how Member States should implement the new PSI directive. If Member States are not careful, the implementation of the changes required by the new directive could do more harm than good to cultural heritage institutions. In order for the directive to meet its overall objective, i.e. to contribute to opening up the resources held by Europe’s cultural heritage institutions, three main recommendations for member states can be formulated:

1. Member States should implement the Directive in line with the principles established by Article 3 and ensure that all documents that are not currently covered by third party intellectual property rights fall within the scope of the Directive.
2. Member States must not implement the Directive in such a way that encourages or requires institutions to charge for the reuse of works that they make available for reuse. The decision to charge for reuse must be up to the individual institutions. If this is not the case the Directive will limit access and reuse of the public domain.
3. For documents that are still protected by intellectual property rights but where these rights are held by the cultural heritage institutions, Member States should encourage the use of Open Definition-compliant licenses, such as the Creative Commons licenses or the Creative Commons Zero mechanism. This applies in particular to metadata produced by cultural heritage institutions, in the limited cases where these metadata can attract copyright (such as long form descriptions of cultural heritage objects).

For a deeper analysis of these issues see the full policy paper on the re-use of public sector information in cultural heritage institutions.

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The guidelines put a lot of emphasis on the legal aspects of PSI. As part of this the Commission highlights the fact that not all documents need to be licensed, especially those that are in the Public Domain:

A simple notice (e.g. the Creative Commons public domain mark) clearly indicating legal status is specifically recommended for documents in the public domain (e.g. where IPR protection has expired or in jurisdictions where official documents are exempt from copyright protection by law).

In addition to this important clarification the Commission also provides clear recommendations for the use of open licenses:

Several licences that comply with the principles of ‘openness’ described by the Open Knowledge Foundation to promote unrestricted re-use of online content, are available on the web. They have been translated into many languages, centrally updated and already used extensively worldwide. Open standard licences, for example the most recent Creative Commons (CC) licences (version 4.0), could allow the re-use of PSI without the need to develop and update custom-made licences at national or sub-national level. Of these, the CC0 public domain dedication is of particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility for re-users and reduces the complications associated with handling numerous licences, with possibly conflicting provisions. If the CC0 public domain dedication cannot be used, public sector bodies are encouraged to use open standard licences appropriate to a member state’s own national intellectual property and contract law and that comply with the recommended licensing provisions set out below.

This recommendation for the use of Open Definition compliant licenses and tools shows that the Commission has clearly understood concerns about license fragmentation that COMMUNIA and others had raised during during the legislative process that lead to the amendment of the PSI directive. In our 2012 policy paper on the proposal to amend the PSI Directive we had noted:

Instead of encouraging member states to develop and use open government licenses such as those that are currently used by the governments of the United Kingdom and France, the Commission should consider advocating the use of a single open license that can be applied across the entire European Union.

Such licenses do exist and are widely used by a broad spectrum of data and content providers. […] COMMUNIA therefore advises the Commission to consider using an existing open license that complies with the Definition of Free Cultural Works as a pan European standard license for Public Sector Information. Appropriate licenses include the Creative Commons Zero Universal Public Domain Dedication (CC0) or the widely used Creative Commons Attribution License (CC BY).

Lets hope that member states and public sector bodies will follow these recommendations and that the trend towards license fragmentation that accompanied the beginning of the open data movement has abated. In this respect it is encouraging that the list of Open Definition conformant licenses is still relatively short and only contains two licenses that have been developed specifically for a national government.

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We have been providing feedback to the Commission during this process. We last wrote about the Directive in June, and questioned why the Commission had not yet clarified what should be considered a “standard license” for re-use (Article 8). The dangers of license proliferation–which potentially leads to incompatible PSI–is still present. But it’s positive that the Commission is using this consultation to ask specific questions regarding legal aspects of re-use.

Part 3 of the questionnaire deals with licensing issues. One question asks what should be the default option for communicating re-use rights. We believe that there should be no conditions attached to the re-use of public sector information. The best case scenario would be for public sector information to be in the public domain. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into as close as possible to the public domain to ensure unrestricted re-use.

Communia calls on the Commission and Member States to ensure that core datasets are released for maximum re-use, either by exempting PSI from copyright and sui generis database rights altogether, or by requiring that these rights are waived under the CC0 Public Domain Dedication.

Another question first states that the Commission prefers the least restrictive re-use regime possible, and asks respondents to choose which condition(s) would be aligned with this goal. Again, we think that every condition would be deemed restrictive, since the best case scenario would be for PSI to be removed from the purview of copyright protection through law or complete dedication of the PSI to the public domain using CC0.

Some conditions would be particularly detrimental to interoperability of PSI. An obligation not to distort the original meaning or message of public sector data should be deemed unacceptable. Such an obligation destroys compatibility with standard public licenses that uniformly do not contain such a condition. The UK’s Open Government License has already removed this problematic provision when it upgraded from OGL 1.0 to OGL 2.0. Any condition that attempts to discriminate based on the type of use or user, or imposes additional requirements on the re-user, should be avoided. Examples include: 1) fees for cost recovery, 2) prohibitions on commercial use, modifications, distortion, or redistribution, and 3) unreasonable attribution requirements. Copyleft conditions can threaten interoperability with existing “attribution-only” standard licenses.

In addition to mentioning CC licensing as a common solution, the questionnaire notes, “several Member States have developed national licenses for re-use of public sector data. In parallel, public sector bodies at all levels sometimes resort to homegrown licensing conditions.” In order to achieve the goals of the Directive and “to promote interoperable conditions for crossborder re-use,” the Commission should consider options that minimize incompatibilities between pools of PSI, which in turn maximize re-use. As far as we are concerned that means that governments should be actively discouraged from developing their own licenses. They should consider removing copyright protection for PSI by amending copyright and/or PSI law or waive copyright and related rights using CC0.

Part 4 of the questionnaire addresses charging options for PSI re-use. While the Communia Association did not provide an opinion on this matter, Federico Morando, Raimondo Iemma, and Simone Basso have provided an in-depth analysis on the Internet Policy Review website.

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• libraries, museums, and archives are now be covered under the directive

• all legally public documents are subject to reuse under the directive

• any charges are be limited to marginal costs of reproduction, provision and dissemination

• documents and metadata are to be made available for reuse under open standards and using machine readable formats

European Commission Vice-President Neelie Kroes praised the adoption of the new rules on open data:

[T]o make a real difference you need a few things. You need prices for the data to be reasonable if not free – given that the marginal cost of your using the data is pretty low. You need to be able to not just use the data: but re-use it, without dealing with complex conditions […] We are giving you new rights for how you can access their public data for re-use, but also extending rules to include museums and galleries. That could open up whole new areas of cultural content, with applications from education to tourism. Indeed, Europeana already has over 25 million cultural items digitised and available for all to see – with metadata under an open, CC0 licence.

The Communia Association has been keenly interested and involved in seeing public sector data freed for widespread use by making it broadly available in the public domain. In January 2012 we released a policy paper with suggested changes to the PSI directive. Communia is pleased to see that cultural heritage institutions are included under the scope of the amended directive. Another positive aspect of the new reuse directive is the narrowing of the language around acceptable licensing for public sector information through the removal of text encouraging the development of additional open government licenses. At the same time, the Commission has not clarified what should be considered a “standard license,” thus there is an ongoing concern potential for Member states to create diverging and potentially incompatible license implementations. And, the EU lawmakers chose not to address the Communia recommendation of explicitly including public domain content held by libraries, museums and archives under the reuse obligation of the amended directive. But all in all, the updated directive is a step in the right direction.

The new directive will be implemented by Member states over the next two years. In the interim, the Commission will be looking for guidance on licensing issues (among other things) from EU-funded projects such as LAPSI 2.0. Communia is an active member in the LAPSI group. LAPSI will be developing PSI licensing guidelines and good practices as a deliverable to the Commission.

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