COMMUNIA Association - best case scenarios https://communia-association.org/tag/best-case-scenarios/ Website of the COMMUNIA Association for the Public Domain Thu, 16 Mar 2017 19:44:34 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.2 https://communia-association.org/wp-content/uploads/2016/11/Communia-sign_black-transparent.png COMMUNIA Association - best case scenarios https://communia-association.org/tag/best-case-scenarios/ 32 32 How to #fixcopyright with a great copyright limitation? A recipe for lawmakers https://communia-association.org/2016/07/13/bcs-fixcopyright-recipe/ Wed, 13 Jul 2016 13:41:57 +0000 http://communia-association.org/?p=2360 With the Best Case Scenarios for Copyright series we have proved that copyright has a brighter side for users. For satire and critique, in teaching, research and journalism, even while preserving memories of beautiful spaces – copyright exceptions help artists, audiences, students, and tourists alike benefit from access to culture and education. What is important, […]

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With the Best Case Scenarios for Copyright series we have proved that copyright has a brighter side for users. For satire and critique, in teaching, research and journalism, even while preserving memories of beautiful spaces – copyright exceptions help artists, audiences, students, and tourists alike benefit from access to culture and education.

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.

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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!

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.

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The right to think is the right to quote – #fixcopyright with wide quotations exception! https://communia-association.org/2016/07/08/quotations-bcs-copyright/ https://communia-association.org/2016/07/08/quotations-bcs-copyright/#comments Fri, 08 Jul 2016 08:49:19 +0000 http://communia-association.org/?p=2351 The right to quote is a pivotal element of science, study, critique, and art. By evoking somebody else’s words and creations we are able to enter into an intellectual dialog that is a foundation of our culture. Quotations substantiate scientific discourse and discovery of new knowledge. They are used widely in memes that have become […]

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The right to quote is a pivotal element of science, study, critique, and art. By evoking somebody else’s words and creations we are able to enter into an intellectual dialog that is a foundation of our culture. Quotations substantiate scientific discourse and discovery of new knowledge. They are used widely in memes that have become a signature feature of social media.

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

Exception/Limitation: Quotations

Country:  Finland

04 - Quotations Share

What is a quotation exception?

  1. A quotation exception to copyright refers to citations or other uses of protected works as a way to support intellectual creation.
  2. The exception is justified by the freedom of intellectual creation.

How does it work?

  1. A quoted work may be incorporated in a play, in a book, in audiovisual materials, etc. “Mere” quotations that do not result in a new work are also covered.
  2. The exception covers all acts of use (reproductions, making available to the public, translations, etc.) and it’s technologically neutral, which means that quotations can be made in digital formats and in online contexts.
  3. All types of copyrighted materials (including images, films, phonograms and broadcasts) can be quoted. Only works that have been made public with an author’s permission can be quoted, but it is irrelevant if the copy of the work used for the quotation is a legal source or not.
  4. The extent of a quote depends on the type of work being quoted and on the context of use. A quotation of an entire work, such as a photograph, may be permitted.
  5. Authors of works that include quotations are free to benefit from it commercially as long as it is in accordance with proper usage (see point 4 in “limits” below).
  6. Users must mention the source of the quote and the author’s name.

Who can use it?

Anyone can benefit from the quotation exception including citizens, individual artists, organizations, and companies.

Is it free?

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

What are the limits to the quotation exception?

  1. Only necessary changes – a quoted work may be translated or otherwise adapted but the changes must be limited to what is necessary for the quotation.
  2. Clear identification of a quote  – quotes need to be clearly marked so that they are not confused with the work in which they are incorporated.
  3. The proper usage – it refers to general ethical standards and is somehow similar to the idea of ‘fair practice” found in the Berne Convention and in the InfoSoc Directive. For instance, works made entirely from citations or that use citations only to be more appealing are not exempted.

Economic and societal impact

Culture lives when people reflect on it and find new interpretations of sentences, images and performances by weaving parts of these works into their new creations. Science can only advance when it is based on evidence and quotes substantiate insights and theories that create new knowledge. The right to quote is a foundation of art, science, and – as a result – our civilisation.

Examples of use

  1. A highschool teacher created learning materials analysing the life of the Finnish singer Juice Leskinen that included quotations of his lyrics. These materials are available online as open educational resources.
  2. A university prepared e-learning materials that instruct on various musical styles and artists by using quotes of musical notes and fragments of music recordings.

Law

  • Section 22 of the Finnish Copyright Act (Tekijänoikeuslaki), approved by 8.7.1961/404, amendments up to (155/2016) included
  • The wording resembles more art. 10(1) of the Berne Convention than art. 5(3)(d) of the InfoSoc Directive
  • First introduced in 1961

Why we chose the Finnish example?

All member states exempt quotations, but several national legal provisions have some sort of a drawback. For example, some legal provisions specify the kinds of works that can be quoted, this way excluding the quotations of audiovisual works, others do not allow the quotation of entire works. Sometimes the context of a quotation is specified or the wording used is not technologically neutral.

In Finland, similarly to the other Nordic countries, the quotation exception is presented as a “relatively open rule of reason”. The Nordic quotation exception is a norm that is flexible and open. It permits a relatively broad spectrum of unauthorized uses that exceed the traditional connotation of citation.

Further reference

For details on how the quotation exception functions in Finland please see the Best Case Scenario for Copyright – Quotations in Finland analysis prepared by Teresa Nobre, LL.M. IP (MIPLC), based on research by Maria Elisabeth Rehbinder, LL.M., on behalf of the Communia Association.

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.

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Wide education exception is the best case scenario to #fixcopyright in EU https://communia-association.org/2016/06/24/education-exception-bcs-copyright/ https://communia-association.org/2016/06/24/education-exception-bcs-copyright/#comments Fri, 24 Jun 2016 09:28:24 +0000 http://communia-association.org/?p=2325 The education exception benefits teachers, students, and researchers who need access to all types of educational and informational resources that are often protected by copyright. This exception balances the right to education with the rights of authors. Maintaining the balance is never easy, and some issues still await their interpretation in Estonia. Still, Estonia enjoys […]

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The education exception benefits teachers, students, and researchers who need access to all types of educational and informational resources that are often protected by copyright. This exception balances the right to education with the rights of authors. Maintaining the balance is never easy, and some issues still await their interpretation in Estonia. Still, Estonia enjoys the widest education exception provisions among all EU member states.

Within the Best Case Scenarios for Copyright series, we present Estonia as one of the best examples for education. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Education in Estonia legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Education

Country: Estonia

 

03 - Education Share

What is an education exception?

  1. An education exception to copyright relates to cases where protected works of all types are used for educational purposes or scientific research, both offline and online.
  2. The exception is justified by the public interest of access to education.

How does it work?

  1. All acts that are necessary for educational purposes are exempted: users can copy, adapt, translate, and transform protected works.
  2. All types of copyrighted materials that are publicly available can be used for teaching and study, including films, phonograms, and broadcasts.
  3. It is possible to use a protected work to the extent required to fulfill the purpose of a particular teaching or scientific activity. If the use of an entire work is necessary, it also falls under the exception.
  4. It is mandatory to credit the author of the protected work.

Who can use it?

  1. Anyone can benefit from the general teaching and scientific exception, including citizens, organizations, and educational institutions.
  2. Physical copies of works may be created by educational and research institutions, and by citizens in general for research and private study, under other exceptions.
  3. Only educational institutions may take advantage of the right to organize recitals, plays, dance shows, etc., based on a protected work, performed in front of an audience. (see “limits” point 3).

Is it free?

It depends. No remuneration is due to the authors or rights holders of the works used for the educational purpose as long as no physical copies of the works are made.

What are the limits to the education exception?

  1. Educational or scientific purpose is required – it is possible to use a work in education and scientific research, including in lectures, tests and teaching compilations, as long as it illustrates the process of teaching, learning or research.
  2. Non-commercial use – users may not benefit commercially from the fact that they carry out scientific research or illustrate teaching with copyrighted works under the exception.
  3. For performances, the audience is limited to the school’s close social circle – to benefit from the exception, a performance must be staged by students and staff for the audience consisting of people directly involved with the school, such as parents and caregivers.
  4. 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 the public interest in access to education and the interests of the right holders.

Economic and societal impact

Estonia is one of the most technology-friendly countries in Europe, with widely used e-services for citizens, and excellent internet access. Many educational institutions, teachers, and researchers collect and share educational resources with their students and colleagues, as well as create online courses. This is a crucial trend in advancing the education in times when computers and mobile devices are becoming the primary point of access to knowledge and literacy. Taking advantage of technology in education is possible because of the wide and flexible education exception.

Examples of use

  1. Estonian Information Technology Foundation for Education keeps a digital repository of thousands of teaching materials from over 60 vocational schools and universities.
  2. An Estonian history teacher runs a blog, where she publishes her students’ works for further study and dissemination of knowledge.

Law

  • Articles: § 19 subsection 2 and 3, and § 22 of the Estonian Copyright Act, adopted on 11 November 1992 (as last amended on 10 April 2016)
  • The wording of § 2 section 2 is similar to the 2001 InfoSoc Directive that has been transposed in Estonia in 2004

Why we chose the Estonian example?

We believe that copyright benefits education when it stays out of the classroom. An exception or limitation to copyright for educational purposes must be flexible, neutral with regard to media type, format, and technology, and covering all necessary uses by all sorts of users. In other words, the best scenario for education would be a provision covering all exclusive rights and at least as broad as the EU exception under the InfoSoc Directive, which is only applicable to certain rights (reproduction, communication to the public, making available to the public, and distribution).

As far as we are aware, Estonia is the EU country that has come closest to a literal transposition of the InfoSoc provision. This has been done, however, without restricting the scope of application of the legal provision to certain exclusive rights.

The fact that we have selected the Estonian model does not mean, however, that this example is as good as it could be. There is one main legal provision in the Estonian Copyright Act and two other overlapping exceptions, one of which causes some interpretation issues on who can benefit from reproductions made for educational purposes. There are no court cases on the issue, but the most generous interpretation seems to prevail in educational practice in Estonia. This is probably due to the fact that the Estonian Copyright Act allows, since its original version, broad unauthorized uses of protected materials for educational purposes.

The planned Estonian copyright reform may resolve these issues on the legislative level. We sincerely hope, that the harmonization of EU copyright that includes a mandatory broad educational exception will solve it across Europe first.

Further reference

For details on how the educational exception functions in Estonia please see the Best Case Scenario for Copyright – Education in Estonia analysis prepared by Teresa Nobre, LL.M. IP (MIPLC) and Alari Rammo on behalf of the Communia Association.

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 Wide education exception is the best case scenario to #fixcopyright in EU appeared first on COMMUNIA Association.

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EU, #fixcopyright and adopt the parody exception across Europe https://communia-association.org/2016/06/15/parody-exception-bcs-copyright/ https://communia-association.org/2016/06/15/parody-exception-bcs-copyright/#comments Wed, 15 Jun 2016 08:59:22 +0000 http://communia-association.org/?p=2300 The parody exception cultivates the French tradition of satire. When the goal is to make people laugh, anybody can freely create a distinctively different mockery of a protected work. This encourages creativity and freedom of expression. Within the Best Case Scenarios for Copyright series, we present France as the best example for parody. Below you […]

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The parody exception cultivates the French tradition of satire. When the goal is to make people laugh, anybody can freely create a distinctively different mockery of a protected work. This encourages creativity and freedom of expression.

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

Exception/Limitation: Parody
Country: France

02 - Parody Share

What is a parody exception?

  1. Rooted in ancient Greek, the term “parody” includes works of mockery, as well as quoting or referencing an older work in a modern interpretation of it. In France, parody implies adapting or borrowing from a work with the intention of having fun.
  2. The exception is justified by freedom of expression.

How does it work?

  1. All acts that are necessary to create a parody work are exempted – users can copy, perform, adapt and transform the protected work.
  2. The resulting parody can be published, performed, made available online or otherwise used without infringing the rights to the original work.
  3. All types of copyrighted works that are publicly available can be used for parody. Parody has also been recognized for trademarks.
  4. Authors of works of parody are free to benefit from it commercially, as long as their goal is to provoke laughter and/or criticize (see “limits” point 2 below).
  5. A parody can result in a work that is not original itself and not protected by copyright. It can also result in a protected work of a different genre (for example, a song can be a parody of a play, or an image can be a parody of song lyrics).
  6. The creator of the parody is not obliged to credit the parodied work.

Who can use it?

Anyone can benefit from the parody exception: citizens, individual artists,  organizations, companies.

Is it free?

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

What are the limits to the parody exception?

  1. Confusion between the original and its parody – it is possible to make a parody of an entire work as long as there is no risk the parody work would be confused with the original.
  2. Goals different than the humorous intent – for example, advertising parodies are not exempted, and require authorization from the rights holder of the underlying work because the main goal is to sell products and not to make people laugh.
  3. Moral rights and personality rights of the author – the parody work must not demean or degrade the original work, and must respect its author. It must balance the right to laugh and the rights of the author chosen as the target.

Economic and societal impact

The Treatment of Parodies under Copyright Law in Seven Jurisdictions study commissioned by the UK Intellectual Property Office in 2013 has shown a positive social and economic impact of the parody exception. Studies show no evidence that parody causes economic harm the parodied work. It has also shown that works of parody can promote creativity, especially online.

Examples of use

  1. The French magazine “Charlie Hebdo” often bases its mockery on pop culture figures and topics, as well as widely-known characters such as Batman, or Asterix and Obelix.
  2. The famous character Tintin has been given a parallel life full of adventures and ironic jokes on current geopolitical events.

Law

  • Article L.122-5 of the French Code of Intellectual Property (Code de propriété intellectuelle) created by the law of 1 July 1992 (as last amended on 25 April 2016)
  • The wording is similar to the 2001 InfoSoc Directive: when the work has been disclosed, the author may not prohibit “parody, pastiche and caricature, taking into account the rules of the genre”
  • First introduced in 1957

Why we chose the French example?

Only a few countries have an explicit parody exception in their copyright laws. Where such exception does not exist, courts may permit parodies under freedom of expression and freedom of the arts. Germany, for example, permits parodies on the basis that adaptations are free, under certain conditions. Other countries exempt parodies if they constitute a new original work – that had been the case of the Netherlands before the InfoSoc Directive was transposed.

The problem with the above-mentioned approaches is that if the parody work does not meet the necessary conditions to be considered an adaptation or a new work, it will infringe on the exclusive rights of the author, including the right of reproduction. That does not happen in the EU member states that have implemented the parody exception as provided in the InfoSoc Directive, since the exception applies to all the rights: reproduction, communication to the public, making available to the public, and distribution.

The French parody exception served as a model to the EU parody exception. France has a long parody tradition, with plenty of examples of commercial and non-commercial parodic uses of copyrighted works found in the national case law. The key criteria developed by French courts for assessing whether a certain parody work is permitted or not, seem to be aligned with the recent European Court of Justice decision on the EU parody exception.

Further reference

For details on how the parody exception functions in France please see the Best Case Scenario for Copyright – Parody in France analysis prepared by Alexandra Giannopoulou on behalf of the Communia Association.

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

Talk to us about 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 EU, #fixcopyright and adopt the parody exception across Europe appeared first on COMMUNIA Association.

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Time to #fixcopyright and free the panorama across EU https://communia-association.org/2016/06/07/freedom-panorama-bcs-copyright/ https://communia-association.org/2016/06/07/freedom-panorama-bcs-copyright/#comments Tue, 07 Jun 2016 19:28:06 +0000 http://communia-association.org/?p=2262 Freedom of panorama is a fundamental element of European cultural heritage and visual history. Rooted in freedom of expression, it allows painters, photographers, filmmakers, journalists and tourists alike to document public spaces, create masterpieces of art and memories of beautiful places, and freely share it with others. Within the Best Case Scenarios for Copyright series […]

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Freedom of panorama is a fundamental element of European cultural heritage and visual history. Rooted in freedom of expression, it allows painters, photographers, filmmakers, journalists and tourists alike to document public spaces, create masterpieces of art and memories of beautiful places, and freely share it with others.

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

Best Case Scenarios FoP

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.

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.

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Best Case Scenarios for Copyright https://communia-association.org/2016/06/06/bcs-copyright/ https://communia-association.org/2016/06/06/bcs-copyright/#comments Mon, 06 Jun 2016 10:06:04 +0000 http://communia-association.org/?p=2249 The copyright was originally meant to promote creativity and innovation, but instead it’s become outdated, overly complicated, and even threatening to some users. Fortunately there are still ways to fix copyright and the EU is in a unique position to do it. The European Commission should look into best examples of national-level solutions and apply […]

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The copyright was originally meant to promote creativity and innovation, but instead it’s become outdated, overly complicated, and even threatening to some users. Fortunately there are still ways to fix copyright and the EU is in a unique position to do it. The European Commission should look into best examples of national-level solutions and apply them within the current reform. We present several best examples of exceptions and limitations that should benefit citizens in their access to culture and education across Europe.

Time to #fixcopyright and free the panorama across EU

EU, #fixcopyright and adopt the parody exception across Europe

Wide education exception is the best case scenario to #fixcopyright in EU

The right to think is the right to quote – #fixcopyright with wide quotations exception!

How to #fixcopyright with a great copyright limitation? A recipe for lawmakers

Best case scenarios for copyright – full brochure

Reform – the dealmaker or the dealbreaker for citizens?

The current copyright system fails us on so many levels that we know the forthcoming EU copyright reform won’t fix it all. Given the pressure from creative industries to introduce new rights in order to protect their existing business models, the outlook is not very good. Instead of engaging in discussions and actions that would rebalance copyright, users and public interest organizations engage in battles against bad policy ideas.

Best Case Scenarios

It is time to tell the EU that while it plays with the elusive vision of the Digital Single Market by inventing how to tax linking, there are some good solutions that already work in member states. Exceptions and limitations to copyright, so dreaded by many rights holders, do not break the creative industry in Portugal and France or the educational systems of Estonia and Finland. They simply work! To the benefit of creators, artists, students and users, reinforcing creativity, freedom of expression and providing good balance of the interests of rights holders and citizens.

EU, harmonize towards the common advantage!

At Communia we believe that the EU should look into how the freedom of panorama benefits artists in Portugal, how parody reinforces creativity in France, how Estonian education benefits from a wide copyright exception, or how the right to quote works for multiple purposes in Finland enabling new transformative uses. These best case scenarios for copyright are already foreseen in the InfoSoc Directive – the EU just needs to make them mandatory across Europe.

Each week of June we will present one of these exceptions: how it works, who can benefit from it and what is the impact on the society, creativity and freedom of expression. We urge you to tell the EU that copyright is about your right to access culture and education, too. Use these examples in advocacy, when you explain copyright to people, on social media.

Yes, the copyright fails us when it doesn’t work. But we also know what works. Let’s use that knowledge to #fixcopyright.

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

The scenarios are based on case studies developed by Alexandra Giannopoulou (France), Alari Rammo (Estonia), Maria Rehbinder (Finland) and Teresa Nobre (Portugal). Teresa – an IP lawyer, Creative Commons Portugal legal lead and a member of Communia – is also the project’s legal lead.

Anna Mazgal is the project’s campaign lead. She is the managing director of the Polish Centrum Cyfrowe, a think-and-do tank turning society digital. Anna is also a COMMUNIA representative at the Observatory of IP Infringements at EUIPO.

The graphic design has been created by Manufactura Independente and all materials are available under a CC0 license. Manufactura Independente is a Portuguese design research studio focused on free culture and critical engagement with design tools.

 

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