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 day after tomorrow, the Legal Affairs (JURI) Committee will vote on Copyright in the Digital Single Market. The educational exception in the Directive is not what we hoped when the copyright reform process started. The European Commission promised – in its DSM strategy – to reduce differences between copyright regimes and to provide greater legal certainty for cross-border use through harmonised exceptions. The Copyright in the DSM Directive furthermore proposed to reduce transaction costs for users, including educators and educational establishments.

These promises have not been met.

This is why we sent a policy letter to all members of the JURI committee asking for a better copyright for education last week. We hope this will help the committee members remember what is at stake for education in this vote, and that they will support an open, broad and flexible exception.

In the current proposal article 4 allows for an override of the exception with licensing mechanisms – which benefits rightsholders, but increases transaction costs, cause legal uncertainty for cross-border use and leads to a lack of harmonisation of copyright law, as it applies to education.

Our recent study of 10 licensing schemes for educational uses (in France, the United Kingdom and Finland) shows that (i) licences restrict the scope of protection of the educational exceptions, (ii) licenses grant questionable rights to rightsholders, and (iii) licenses impose burdensome obligations on schools.

We are concerned that the language of the new education exception will not be able to achieve its purpose of allowing cross-border use because it only allows the use within an educational establishment and within an electronic environment. This will not facilitate cross-border use across institutions and across countries.

The post Dear MEP, will you support an open, broad and flexible education exception? appeared first on COMMUNIA Association.

Teresa Nobre (Communia Association) and MEP Axel Voss (EPP, Germany), photo Education International, CC BY NC

Licenses are not a solution for education

If we were to choose one thing that worries us the most in the ongoing copyright reform as it relates to education, it would certainly be the possibility of license override. According to the current proposal for the  Directive on copyright in Digital Single Market, licences that are easily available in the market can take precedence over the mandatory educational exception.

While this might seem like a way to adjust copyright to national specificity, licensing mechanism will spell new barriers and costs for educational systems across Europe. For countries where educational licenses have not been available to date, this means that there is a possibility that schools will have to pay for materials that have been available to them for free. But educational licenses are not just a matter of money.

Unfair terms and conditions in educational licenses in Europe

During the conference, Teresa Nobre presented our recent study about educational licenses in Europe. We have analysed 10 educational agreements from Finland, France, and the United Kingdom to see what license priority can bring to other countries. Unfortunately, there are reasons to worry. In the cases we studied, copyright holders could collect students data without restrictions, are allowed to disclose and make commercial use of student performance data or enter the schools’ premises at any time to ensure compliance.

Some licenses impose burdensome obligations on schools – such as ensuring that an act of infringement ceases, and preventing any recurrence thereof. Educational institutions cannot easily defend against such unfavorable provisions. In our opinion, the only way of ensuring that such conditions do not affect negatively educators across Europe is to remove the license override mechanism and ensure that schools can force right holders to eliminate or replace unfair or unreasonable terms.

Problems with cross-border educational activities

The aim of the Commission’s proposal was to introduce a mandatory educational exception to enable digital and cross-border teaching activities. In our view, the Commission’s efforts to harmonize digital education at the EU level will be of little consequence if Member States can ultimately decide to subject the application of exception to the availability of licenses. Steven Stegers from EUROCLIO, which is a member of  Copyright for Education Network, argued that the current proposal will spell challenges for teachers wanting to share their own educational materials online.

EUROCLIO – European Association of History Educators has created an online portal to share open educational resources across borders. Teachers create resources that often use fragments of music, artworks, press photos, or a video clip. It is impossible for them to teach about current events using only copyright free materials. Unfortunately, the shape of the proposed Directive leaves educators with the problem of clearing copyright each time they want to publish something online.

Andrew Todd (LLLP) and Steven Stegers (EUROCLIO), photo Education International, CC BY NC

Supporting teachers as creators

During the conference, educators were seen as not just users, but also creators of content. ETUCE stresses the importance of proper remuneration and attribution of teachers in its Statement on copyright in the DSM. To a large extent, these issues should be solved not through copyright reform, but by better standards for academic and educational institutions that employ educators Nevertheless, the discussion about teachers as creators fits into some themes of the ongoing debate on copyright reform: not just remuneration of creators, but also the use of content filters and the introduction of a new link tax – both of these factors could limit the ability of educators to create, publish and share content.

Excluding textbooks from the scope of the educational exception

Unfortunately, it seems that any of those above mentioned problems are not a concern either for European Parliament members or Member States working within the Council. Instead of dealing with these issues, MEP Voss assured that textbook will be excluded from the scope of educational exception – and argued that the textbook publishing market is small and in need of protection. He seems to ignore the fact that currently 18 out of 28 states have non-remunerated educational exceptions and that the textbooks market is usually well-funded from public funds. The proposal is not ready, but publishers suggest a distinction between content with primary and secondary educational uses.

Balanced approach

Efforts to modernize the EU copyright are entering the final phase. During the conference, MEP Voss confirmed another postponement of the JURI Committee vote, which is now scheduled for 20-21 June. There is very little time left to work on education regulations that will benefit the whole education ecosystem. The most important thing, however, is to find the right balance between the rights of creators and the rights of users in the education sector and listen to the voices of both sides of this debate. We all care about quality education. Let’s choose the best way to achieve it.

The results of the conference will soon be presented in the form of recommendations from the education sector.

If you want to get involved join Vox Scientia – a group of organisations and individual educators, researchers, librarians, cultural heritage professionals and students who stand up and aim to be the ‘Voice of Knowledge’ – ‘Vox scientia’ – in the current EU copyright reform. Communia is an active supporter of this campaign.

Video documentation of the conference is available here. A report of the conference by Education International is available here and more pictures of the event can be found here.

The post Balancing Education and Copyright – reflections after Conference on Copyright in Higher Education and Research appeared first on COMMUNIA Association.

EC proposal will make teachers life harder

Current European Commission’s proposal is so complicated that even lawyers can’t provide a simple answer when and how educational exception will apply. EC proposed mandatory exception, but it can be override by licenses. Teachers won’t be able to use the same educational materials conducting classes in a public library and school building. Different rules will apply depending on the digital and analogue use of works. This is just the beginning of a long list of outrageous things that will affect everyday teacher’s life. Teachers should teach, instead of becoming experts on copyright law.

EC proposal will lower the quality of education

What teacher fear the most is lowering the quality of education. If a publisher offers a license to buy a material that teacher were using under the exception, they will be forced accept the terms and prices or just to stop using the material. It can prevents educators to use the best educational sources just because it takes too much time or money to get a license. As a result students will get only a partial view of history or current events.

Join us to make better copyright for education

We are fighting for better copyright for education since the beginning of copyright reform in Europe. In February we sent a joint letter to MEPs, which was supported by 34 organisations and 17 individuals. In the letter we note our concerns on proposed educational exception to copyright. As we promised, we are continuing our work.

That is why on Monday, November 13th we have met  in Brussels with representatives from key educational institutions in Europe and advocates for copyright reform to discuss the recent developments around the DSM proposal. Not much time has left, because the vote in the most important committee (JURI) on the DSM Directive is currently planned for January 2018. But we know that this is a once in a generation opportunity to create law that fits modern education.

We believe that educators should have freedom to teach and to choose resources that they need. We are now preparing an action plan for the coming weeks to make sure the voice of educators is heard in Brussels. If you want to be part of our community and raise your voice for better copyright for education, let us know at education@communia-association.org and sign up for our monthly newsletter.

The post Educational Institutions in Europe advocate for a better copyright reform for education appeared first on COMMUNIA Association.

We fully agree with President Juncker that we need to “break down national silos in copyright”. As was noted by President Juncker in his opening statement, one of the challenges standing in front of the Digitial Single Market is a modernisation of the  copyright rules in the light of the digital revolution and changed consumer behaviour. We fully support this position, which considers copyright a fundamental regulatory mechanism for a modern economy.

The current system of IP protection is not only over-complicated, but also unclear to all its stakeholders. Thus one of the goals of this modernisation should be a simplification of rules, and in particular a harmonisation across Member States and jurisdictions. Typically, harmonisation is mentioned with regard to territoriality and market fragmentation that affects commercial content. We want to point out that it is just as important to harmonise copyright rules that create freedoms for public institutions, certain uses beneficial to society (for example, educational and research uses) or for individual citizens.

These issues are often, wrongly, seen as of secondary importance, because of the fact that they are exceptions, functioning largely in non-market environments. Yet in the context of the Digital Single Market it is necessary to point out that there is also significant economic potential related to these user freedoms – for example in areas related to education, research or health care, not to mention SMEs and entrepreneurs. Proper copyright exceptions and limitations lead not only to greater user freedoms, but are also themselves significant added value. A broadly understood public domain is in this aspect similar to Public Sector Information, which is well understood in Europe to be a raw material, on which added value is created through re-use (provided that we provide adequate reimbursement to right holders where necessary and protect privacy and personal data).

Due to a lack of such harmonised exceptions across Europe, we not only miss out on potential economic and social gains. Different legal rules between Member States lead to uncertainty for anyone attempting to engage in cross border activities. Massive open online courses (MOOCs) are but one example of educational enterprises that could benefit from greater legal clarity in this regard.

For those reasons, we urge the Commission to expand and adapt current copyright exceptions and copyright limitations so that they serve public benefit in the digital, online environment. Furthermore, we ask that the Public Domain, a body of knowledge and heritage that can be freely used, is protected, strengthened and widened. We also believe that an open provision that ensures flexibility with regard to digital technologies and social practices should be introduced to support innovative business and civic developments. The following pillars could be the base for Digital Single Market reforms:

1. HARMONISATION OF EXCEPTIONS AND LIMITATIONS. Europe should harmonise exceptions and limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to ongoing technological transformations. The limited list of Exceptions and Limitations established by the Copyright Directive restricts the possibilities to adjust the copyright system to the rapid pace of technological innovation that shapes how we interact with copyright-protected works. This not only limits the abilities of citizens to gain access to our shared culture and knowledge but also imposes restrictions for innovative business models, and as a result, economic growth. In the absence of open-ended exceptions such as a fair use clause it is imperative that exceptions and limitations can be adjusted to the needs of society at large and innovative economic actors in particular.

2. TERM OF PROTECTION. The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility to our shared knowledge and culture. There is no evidence that copyright protection that extends decades beyond the life of the author encourages the production of copyright protected works. Instead, there is compelling evidence that the requirement to obtain permission for works by authors that have long died is one of the biggest obstacles for providing universal access to our shared culture and knowledge.

3. REGISTRATION. In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only get moral rights protection. One of the unintended consequences of the near universal access to electronic publishing platforms is an increase in the amount of works that are awarded copyright protection even though their authors do not require or desire such protection. This extension of protection threatens to undermine the value and effectiveness of protection for works where copyright protection is necessary and desired.

4. LEGAL UNCERTAINTY. As a prerequisite for unlocking the cultural, educational and economic potential of the public domain, identification of works in the public domain should be made easier and less resource-intensive by simplifying and harmonizing rules of copyright duration and territoriality. The rules for establishing the duration of the term of protection of individual works have become so complex that it is almost impossible to establish with certainty whether a work is protected by copyright (including all neighboring rights) or whether it is in the public domain. This complexity in the system makes it very difficult to automatically calculate the status of a work. Two factors have contributed to this situation: the divergence of legislation between the different Member States, and a large number of (national) exception clauses. This situation can only be remedied by intervention on the European level, preferably by simplifying the rules and harmonizing them across Europe. The work on public domain calculators has highlighted the incredible complexity of copyright term rules which makes it very difficult to determine the copyright status of individual works. This means that one of the biggest obstacles to positively identifying public domain works (and thus unlocking their cultural, educational and economic potential) lies in the cumbersome process of determining the term of copyright protection.

5. DIGITAL REPRODUCTIONS. Digital reproductions of works that are in the public domain must also belong to the public domain. Use of works in the public domain should not be limited by any means, either legal or technical. The Internet enables the widespread re-use of digital reproductions of works of authorship whose copyright protection has expired. The public domain status of these works means that there is no owner of the works who can impose restrictions on their re-use. At the same time the owners of the physical works (such as heritage institutions) often feel that they are entitled to control over digital reproductions as well and that they can impose restrictions on their re-use. However, digitization of public domain works does not create new rights over it: works that are in the public domain in analogue form continue to be in the public domain once they have been digitized.

6. PUBLIC FUNDING OF DIGITIZATION PROJECTS. Digitization projects that receive public funding must at the minimum ensure that all digitized content is publicly available online. Allowing for the free redistribution of digitized content should be considered since it is beneficial for the sustainability of the access to digitized cultural heritage. When public funding is used for digitization projects it needs to be assured that the public benefits from these efforts. At the minimum this means that digital versions need to be available online for consultation by the public that has paid for the digitization effort. Public funding bodies should prioritize digitization projects that will increase the amount of our shared and culture that is available to the public. Memory institutions that receive public funding should consider making available digitized collections with as little restrictions as possible. Free availability of collections which includes the free redistribution and re-use of the digital artifacts will result in wider availability and reduce the risks inherent to centralized storage.

We would like to express our true devotion to support the above mentioned recommendations.

Since the European Commission encourages also sharing of graphical and multimedia elements, we would also like to submit a set of thematic postcards. Each one combines a treasure of European cultural heritage with one of our policy recommendations. The postcards are available here.

The post COMMUNIA position paper on EU Digital Single Market 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.

The post Poland restricts access to digitized cultural heritage appeared first on COMMUNIA Association.

Despite nearly 25 years of efforts to fully harmonise digital law in Europe, the road to a harmonised copyright system is certainly not a speedy highway. In fact, each Member State still has its own copyright system that applies within its own territory. One of the areas where this is most visible are the rules for determining when a particular work enters the public domain because the copyright term has expired.

Antoine de Saint-Exupéry was killed in 1944, during a flight over the Mediterranean Sea. “The Little Prince”, his best-known book, is the third most popular novel in the world, translated into over 250 languages over more than 600 translations. More than 80 million copies have been printed. If you know a bit about the rules for determining when a work goes out of copyright, we can assume that on 1st January 2015 “The Little Prince” became part of the public domain. This is because in France copyright lasts for 70 years after the death of the author. And since Saint-Exupéry died in 1944, this would put “The Little Prince” into the public domain in France.

However, the harmonization of the duration of copyright is not uniform. In France, works of authors who died for France during the First and Second World Wars benefit from additional copyright protection. Copyright for works created by these authors is extended for an additional 30 years to compensate for the losses and difficulties in the commercial exploitation of their works during the war.

Beginning this year, “The Little Prince” is in the public domain almost everywhere in Europe. But in France, the novel will pass into the public domain sometime between 1 May 2033 and 1 January 2045, depending on your interpretations of the rules! Interestingly, Canadians have been freely using “The Little Prince” for the last 20 years, as copyright expires there 50 years after the death of the creator.

The French exception may seem surprising to you, but it’s not an outlier. There are multiple other such exceptions present in various European countries. When such irregularities are combined with inconsistent terminology within the European Directives (not to mention differences in the ways the Directives are implemented at the national level) along with unreliable information on the dates of death of the authors, we see we’re a long way from sensible harmonization of copyright law across Europe.

Fortunately, there is good news: establishing a single European framework that enables cross-border flow of products and services is one of the priorities of Jean-Claude Juncker, the newly elected President of the European Commission. The recent report by MEP Reda on the evaluation of the Copyright Directive (2001/29/EC), and tweets made by Commisioner Oettinger and Vice-President Ansip about the need of new copyright rules, are all hopefully signs of coming change. We hope that we’ll be able to report about it during Copyright Week 2016.

Europe needs new #copyright rules. Sensible balance between the interests of users and authors. http://t.co/zGnoS5tiAQ

— Günther H. Oettinger (@GOettingerEU) January 12, 2015

(Paul Keller wrote about “The Little Prince” and the public domain on this blog in 2012).

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