As a result these platforms need to prevent uploads containing Public Domain or openly licensed works from being blocked or removed as a result of copyright claims from (alleged) rightholders or face sanctions. For example, the German implementation of Article 17 explicitly requires that “after an abusive blocking request in respect of works in the public domain or works whose use by anyone is authorised free of charge, service providers must ensure, to the best of their ability […], that these works are not blocked again”.

To comply with such obligations providers of these platforms will need to maintain repositories of known Public Domain and openly licensed works that can be used as allow-lists. In the white paper published today Reda and Keller argue that, instead of building their own private repositories, service providers should work together to build a shared public repository of Public Domain and openly licensed works. Such a shared public repository would provide value both to the platform providers themselves and to the public. The public would benefit from having access to a growing repertoire of verified Public Domain and openly licensed works, while platform providers would have access to an industry standard resource that allows them to fulfil their obligations under Article 17 and reduce their liability arising from wrongful removals of uploads containing Public Domain and openly licensed works.

The white paper will be presented today during the “Protecting Open Licenses in the EU Copyright Reform” session at the Creative Commons global summit.

With the white paper the authors intend to start a conversation with online content sharing platforms, the EU Commission and civil society to explore the feasibility of their proposal.

The post A Proposal to leverage Article 17 to build a public repository of Public Domain and openly licensed works. appeared first on COMMUNIA Association.

As in previous years COMMUNIA will contribute to a number of sessions at the summit which has turned into one of the prime venues for driving the discussion about global copyright reform forwards. Below we have compiled a list of sessions that are particularly relevant to our area(s) of interest and that will see participation from COMMUNIA members: 

The debate around policies and advocacy promoting the Commons will be at the heart of several discussions, including a get together of the Creative Commons Copyright Platform on Monday at 1430 CEST. The CC Platforms Working Group will host a session on online platforms’ copyright liability on Monday at 1330 CEST; CC’s General Counsel Sarah Pearson will host a session on  the phenomenon of aggressive enforcement of CC licenses with Kat Walsh – CC OpenGLAM Director – on Tuesday at 2030 CEST and Brigitte Vézina – CC Director of Policy, Open Culture and GLAM – will explore how to develop an attribution standard for public domain GLAM materials on Tuesday at 1500 CEST. 

There will be space for a closer look at copyright reforms around the globe, with Paul Keller (Open Future) and Felix Reda (Gesellschaft für Freiheitsrechte) reporting on achievements in securing meaningful protection for public domain and the commons in the German implementation of the CDSM Directive on Tuesday at 1400 CEST; and Dimi Dimitrov (Wikimedia DE) outlining the situation of EU Policy & the Commons with Anna Mazgal (Wikimedia DE) on Thursday at 13:00.

On Thursday at 2230 CEST Jennifer Zerkee (Simon Fraser University) and Stephanie Savage (University of British Columbia) will review the Canadian Copyright Act, and Lisa Macklem (University of Western Ontario) will showcase the influence of US lobbyists in South Africa and Canada on Friday at 1930 CEST. 

On Thursday at 1600 CEST Maja Bogataj (Intellectual Property Institute) will make a comparative analysis of public engagement strategies adopted by different organizations worldwide when communicating copyright reform issues and on Friday at 1330 CEST Wikimedia DE will report on the successful partnerships with different institutions to make their knowledge open and accessible.

The problematic relation between copyright and Research & Education will be discussed in a panel discussion with Teresa Nobre on Wednesday at 2130 CEST. COMMUNIA’s copyright for education team will present the survey about open remote education during the pandemic on Thursday at 1300 CEST. A special focus on how international policy could be reformed to better meet the needs of modern research and education will be given on Wednesday at 0530 CEST by Justus Dreyling (Wikimedia DE).

The challenges raised by  the use of CC licensed material for AI training will be examined  by Alek Tarkowski (Open Future), Anna Mazgal, Adam Harvey, Ben Macaskill (Flickr) and Valentina Pavel (Ada Lovelace Institute) when introducing the AI_Commons project on Wednesday at 1330 CEST. Anna and Alek will also investigate the tie between mechanisms of controls of free expression and the logic of monetization on Thursday at 1200 CEST.

The Summit will also provide a space for analysis of the challenges and opportunities for the Open Movement 20 years after its emergence: on Monday at 2200 CEST, Jennie Rose Halperin (Library Futures), Kaitlin Thaney (Invest in Open) and Alek Tarkowski will facilitate a conversation and support a community of practice. This will be followed by a session on the Paradox of Open with Paul Keller, Alek Tarkowski, Nicole Ebber (Wikimedia DE) and Derek Slater (Google) on Wednesday at 1600 CEST. On Thursday at Anna Mazgal,  Alek Tarkowski, will continue this thread with a session on Openess and the Crisis of Control over Creative Freedom. 

The post COMMUNIA at the CC Global Summit 2021 appeared first on COMMUNIA Association.

Communia’s bread and butter over the last several years has been advocating for a progressive copyright reform in Europe that will protect users rights and improve the legal situation for both creators and institutions that want to share in the digital age.

After 30 months of working on the reform package, at the end of March the European Parliament voted in favor of the Directive on Copyright in the Digital Single Market. Last week the EU council approved it as well, sealing the deal. Soon the directive will be published in the Official Journal of the European Union. From the date of publication, the Member States of the EU will have two years to implement the provisions contained in the directive into their national laws.

As civil society organisations who’ve been working on the copyright directive re-group to adjust for the opportunities and requirements of the transposition phase at the Member State level, the Creative Commons Summit can provide a timely and useful venue to discuss how CC members and advocates in Europe could work together to ensure that the national implementations do the least harm to user rights and maximise the potential benefits for the commons. There are several sessions that will explore this and related topics around supporting productive copyright reforms.

Here’s a quick preview of some of the sessions we’re interested in, contributing to, or helping lead. Click through for more information, and if you’ll be in Lisbon please join us at these events.

Copyright reform related sessions

How to win the (c) wars?

Thursday, May 9, 9:00am – 10:55am

Despite compelling evidence on the overwhelming evidence supporting fair and flexible copyright exceptions, fair use or its equivalent is politically toxic to many governments. What can we learn from recent failures/obstacles? What do we need to do better?

The State of Copyright Filtering

Thursday, May 9, 12:30pm – 1:25pm

The first part of the session will be an overview of recent policy proposals around the world that seek to mandate online intermediaries to filter content for copyright infringement. The second will be a hands-on look at the filtering systems currently deployed by major web platforms. In understanding the limitations of these tools, we can improve the debate around their use, particularly as lawmakers consider proposals to require web platforms to filter.

Communicating Copyright and Coalition Building – Public Education and Advocacy

Thursday, May 9, 12:30pm – 1:25pm

Copyright law is central to three activities for CC advocates: (1) explaining the function of the licenses themselves and (2) advocating for laws and policies that support the creation of openly licensed materials, and (3) arguing for copyright flexibilities and copyright law reform. However, copyright education and policy advocacy can seem technical and separate from many users and creators core interests. This workshop brings together CC members who have worked to build coalitions around copyright or open policy advocacy topics and discuss successes and failures in public copyright education.

Open Business and the EU copyright reform

Thursday, May 9, 2:00pm – 2:55pm

With the EU copyright reform, many of the thriving businesses that have emerged in Europe over the past 20 years might be negatively affected and many may not even survive. It is now crucial to keep the discussion active and bring these business together so they understand the power they still have to (help) revert these recent political decisions and continue to promote a more open and sustainable business culture, more aligned with the technological progress and social challenges we are facing today (namely, in terms of labor).

The Exceptions Agenda at the World Intellectual Property Organization

Friday, May 10, 1:30pm – 2:25pm

Panel members will include current participants in the World Intellectual Property Organization Standing Committee on Copyright and Related Rights. We will discuss the current plans for work of the Standing Committee on Copyright and Related Rights – including regional meetings in Asia, Africa and Latin America — and how chapters can get involved.

The European Copyright Directive: Past, Present, Future

Saturday, May 11, 10:00am – 11:55am

The opening lecture (“5 Years of EU Copyright Reform – The Good, the Bad and the Ugly”) will trace the copyright reform process back from its origins in 2014 until its conclusion earlier this year and evaluate the impact of the various measures adopted. It will evaluate where we have made progress, were we have suffered defeats and why we have ended up where we have ended up. This session draws on the experiences of COMMUNIA’s five year long involvement in the copyright reform process. In the second part representatives from organisations promoting access to knowledge that have been closely engaged in the European copyright reform over the past years will discuss ways to positively influence the national implementations of the directive. This workshop will provide an opportunity for anyone interested in working on the implementation on the national levels to join this effort and to discuss strategy and the opportunities offered by the implementation on the national level.

Developing Projects for the Copyright Reform Platform

Saturday, May 11, 2:30pm – 4:25pm

At previous summits we’ve worked on sharing information about copyright reform opportunities, wrote the rationale for the platform, and updated our goals and objectives with broad input from the community. This year we’d like to focus on bringing people together to dig into the development of collaborative projects in service of the platform goals and objectives.

Other sessions of interest!

Internet is for the people

Saturday, May 11, 4:30pm – 5:25pm

Tired of apocalyptic scenarios and Black Mirror episodes? Then join us to work backwards from imagining better futures, in which internet is for the people. Let’s kick things off with stating the futures we want and then we will plan ways of getting there. In order to have time for in-depth discussions we will brainstorm, speculate and sketch ideas in small groups. There will be several opportunities to share back and discuss with the whole group.

Strategies for defending the commons and the users

Saturday, May 11, 2:30pm – 3:55pm

The roundtable will discuss the possibility of developing a framework for digital policies that is based around such concepts as the commons, decentralisation, self-determination and public provision of goods.  As a starting point, we will take the experience of our project “Reframe Digital Europe”, in which we have designed such a framework for digital policymaking in Europe. We believe that an alternative, high-level frame is needed to move us away from the market orthodoxy that dominates much of policy debates – not just in Europe, but all over the world.

One size fits no one. Building a strategy for advocacy in a global movement

Saturday, May 11, 4:30pm – 5:25pm

In July 2018, Wikimedia movement launched 9 working groups that have been tasked with developing a strategy for the next 12 years. Advocacy is probably one of the topics that go the most beyond the movement itself and that touch on achieving change benefitting literally everyone. But is is possible to have a strategy that encompasses contexts that are open to citizen voice and those that are not? Can the variety of political and non-political methods form a cohesive tactics? Are we ready to charge free knowledge with the potential to change the world?

The post Preview: Creative Commons Summit and copyright reform appeared first on COMMUNIA Association.

But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far.

Expanding the scope to cover facts

First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.

Mandatory remuneration

Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users.

There are several problems with this approach. First, it’ll just prompt aggregators to only include content from publishers with whom it’s financially viable to work with. Small publishers or journalism startups would not be worth it for the aggregators to worry about, so they just wouldn’t enter into agreements with them at all. This doesn’t bode well for improving access to information, for ensuring diversity of the press, or in the prospect of boosting young businesses via online channels.

Second, the inalienable right directly conflicts with publishers who wish to share freely and openly use Creative Commons licenses. An unwaivable right to compensation would interfere with the operation of open licensing by reserving a special and separate economic right above and beyond the intention of some publishers. For example, the Spanish news site eldiario.es releases all of their content online for free under the Creative Commons Attribution-ShareAlike license. By doing so, they are granting to the public a worldwide, royalty-free license to use the work under certain terms. Forcing publishers who use CC to accept additional inalienable rights to be remunerated violates the letter and spirit of Creative Commons licensing and severely limits them in their freedom to do business.

Links aren’t taxed…unless they are

Voss’ text includes a provision that the press publishers right “shall not extend to acts of hyperlinking which do not constitute acts of communication to the public,” and includes in the recitals an extended note of the recent CJEU judgments on the issue. But there’s a big disconnect in simply adding the text above, and understanding the situation on the ground. As MEP Felix Reda explains,

“Links today almost always automatically include short parts of the article, such as the headline (either because it is part of the web address itself, or because the link is shown with an automatically-generated preview). Because the proposed right would protect even headlines, these links would necessarily be communicating protected content to the public. Therefore, the exception will not apply to them.”

This is not a workable compromise, delete Article 11

It is no real surprise that MEP Voss pays no attention to the one reasonable idea of how to fix the mess of Article 11. By now it is clear that MEP Voss has his very own definition of the term “compromise”. With regards to Article 11 this is especially unfortunate since this is one of the few contentious issues where a real compromise between the proponents and opponents of the new right has been identified: The approach presented earlier by MEP Voss’ predecessor MEP Comodini (and also contemplated in the Estonian presidency) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.”

In the absence of such a compromise Article 11 should be deleted. It will restrict access to information, doesn’t contribute to supporting quality journalism, and will do nothing to grow the digital single market. Many (likely most) publishers and news producers don’t want it. And research commissioned by the European Parliament itself says it won’t work. Voss’ “compromise” is a perverse, empty bargain.

The post MEP Voss doubles down on worst elements of Article 11 appeared first on COMMUNIA Association.

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.

We’ll be joining many of the sessions, especially in the Policy & Advocacy track. As Lisette explained last week, the Policy & Advocacy track will focus on sharing information about our work in support of copyright reform and commons advocacy, and increasing the effectiveness of our community in the current and future hotbeds of law and policy change. These are exactly the areas in which COMMUNIA has been working since the summer of 2014, when we rebooted as an advocacy team to respond to the then-upcoming reform of the EU copyright rules. We know that other governments around the world are engaged in (or planning) updates to rules that govern the creation and sharing of creativity and knowledge. Some of these changes acknowledge the importance of user rights in the digital and online world, but many of the proposals only call for an increase in protection and enforcement of copyright that benefits powerful rights holders and content publishers.

At the summit, we’ll share our experiences in education and advocacy efforts around copyright reform in the EU. And we’ll listen to, discuss, and work with community members who are engaging in similar initiatives elsewhere. There are plenty of interesting and useful sessions around these topics, including:

• Fixing Copyright for Education
• Copyright Reform Community on the 2017 Canadian Copyright Review
• Copyright and Trade Deals: How to Advocate for a Progressive Agenda?
• Campaigning for Copyright Reform: New Perspectives and Lessons Learned
• OMG OFG! Open, Flexible and General Copyright User Rights
• Kickstarting a CC-wide Copyright Reform Platform in Support of the Commons

A unifying theme of the CC Summit will be the discussion and adoption of a new structure for working together as a global community. CC has been working on these proposed changes for the last 18 months, and recently completed a public consultation on it. The point of the shift is to be more inclusive to new people and organisations that wish to contribute the Creative Commons project, and to promote collaboration among supporters and advocates worldwide. This is especially important in areas of law and policy reform, where collaboration and collective action can push for policies that strengthen the commons. We hope that as a result of the Summit, will provide the community with the venues for discussion and planning to mobilise action for copyright reform.

The post Creative Commons Summit: Opening the Next Chapter for Action on Copyright Reform appeared first on COMMUNIA Association.

Creative Commons—which is a founding member of COMMUNIA— reported a major milestone this year: over 1.1 billion CC licensed photos, videos, audio tracks, educational materials, research articles, 3D models and more have now been contributed to the shared global commons. More people and institutions than ever before make use of CC’s tools to free up rights-protected content for everybody to re-use.

In addition, CC noted a huge increase in the number of works shared in the public domain using the CC0 Public Domain Dedication and out-of-copyright works marked with the Public Domain Mark. According to the data, the total number of public domain works using these tools in 2014 was about 17.5 million. That number jumped to nearly 35 million in 2015. This means that the size of the CC-marked public domain nearly doubled over the last year. This is in part due to the tools being more widely and adopted by platforms like Europeana and Flickr. Providing clear information about the public domain status of works is crucial so that subsequent creators know they can use those works without any restriction.

You can read the full report, check out the data behind the numbers, and even make a donation to Creative Commons to continue this important work.

The post Doubling the size of the useable public domain appeared first on COMMUNIA Association.

In 2013, during the previous CC Summit, Creative Commons adopted a position on copyright reform. CC re-emphasized that even though the licenses are an essential mechanism to share creativity within the existing bounds of the law, it is now more important than ever to engage in a review and modernisation of copyright law itself. This commitment was confirmed during this year event.

Communia was especially honored to have MEP Reda, the author of the European copyright evaluation report, give a keynote at the Summit. Reda stressed that while CC has been successful in showing how the copyright debate can be reframed, the values embraced by CC are not present enough in policy debates. Even worse, the existence and successes of Creative Commons licensing can be used as proof that the current system of copyright works, and that no fundamental change  is needed. “Be more than a fig leaf”, Reda told CC activists.

The danger, according to Reda, is that CC will become “an island of free culture in a broader sea of automated takedowns and enforcement”. If we are to avoid that, we need to move the policy debate. Activists have been good at blocking the worst reform proposals, including SOPA, PIPA, or ACTA. We have been much worse at formulating a positive reform agenda.

Reda challenged the summit participants to think big—to imagine a legal and social system in which Creative Commons is the default and all rights reserved copyright is the exception. Or of a new international treaty protecting both the rights of creators, the rights of the public, and the right to share. Or even of building an international coalition to change the Berne convention.

Copyright advocacy: EFF’s tools and tips

But thinking big is also a great challenge when you take into account that most of the people just don’t think that copyright issues affect their lives, and also because of the tired memes and irrational arguments against sensible reform—the concept of a “starving artists” or “theft of intellectual property” is still very strong. During the second day of Summit, EFF’s Director of Copyright Activist, Parker Higgins, and EFF’s Global Policy Analyst, Maira Sutton, discussed how to design issue-specific campaigns to engage with audiences beyond our core group of interested activists.

Where should we start? One place is to Identify problems that matter and using a theory of change figure out what you can do to achieve the final goal, step by step. Using the EFF project “The TPP Copyright Trap”, we went through some useful techniques for crafting effective campaigns, including tools and tips on social media, branding and identifying political targets.

Next steps: copyright-free education

Members of the CC network have been involved over the last few years in a surprisingly broad range of advocacy work on copyright reform. Latin American organisations are fighting the Trans-Pacific Partnership trade agreement, civil society groups are working with us on European copyright reform, the Creative Commons United States affiliate team is co-creating a policy model for open norms, and similar efforts related to copyright reform and open licensing policy development are taking place in by CC affiliates in South Korea and Australia. The CC network made a commitment to coordinate work and cooperate at a global level.

One area of particular interest to many CC affiliates and supporters is education. The CC network has been heavily involved in the growth of the Open Educational Resources (OER) model. The time is right to extend these activities to include copyright reform work on exceptions and limitations for education. CC has made a commitment to participate in the building of an international network that can engage in advocacy work on “copyright-free education”. The CC network, with its broad, global base of members and partners, and with strong involvement in educational issues, is a perfect place to begin such work.

Common members will also be involved in this effort. We recently launched a “Copyright untangled”, a series of articles on copyright in education on Medium. Have a look at the first one, “Dear teacher, copyright concerns you”.

photo: CC Korea, CC BY.

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The statement issued by CC makes it clear that the success of the CC licenses should not be used as an argument that current copyright legislation is flexible enough since it enables voluntary licensing schemes like Creative Commons:

Creative Commons (CC) has enabled a new approach to copyright licensing over the last ten years. CC licenses facilitate novel social, educational, technological, and business practices, and support productive relationships around networked knowledge and culture.

We are dedicated stewards of our licenses and tools, and we educate users, institutions, and policymakers about the positive benefits of adopting CC licenses. Our licenses will always provide voluntary options for creators who wish to share their material on more open terms than current copyright systems allow. But the CC vision—universal access to research and education and full participation in culture—will not be realized through licensing alone.

Around the world, numerous national governments are reviewing or revising their copyright law. Some proposed revisions would broaden the scope of uses of copyrighted works permitted without the rightsholder’s permission. In response, it has been suggested that the very success of CC licenses means that copyright reform is unnecessary—that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.

Our experience has reinforced our belief that to ensure the maximum benefits to both culture and the economy in this digital age, the scope and shape of copyright law need to be reviewed. However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.

More background information on the statement can be found in this blogpost on the Creative Commons website.

The post Creative Commons comes out in support of copyright reform appeared first on COMMUNIA Association.

At this stage the draft opinions written by the rapporteurs for the four non-leading committees have been published. These opinions take the form of amendments proposed to the text of the directive (sometimes these are accompanied by short justifications).

In our policy paper from January we identified two main issues with the proposed directive: The first one concerns the transparency of repertoire information that has to be provided by collective management organisations and the second concerns the relation between collective management and open content licenses. In our analysis the proposed directive fails to sufficiently address these two issues.

We are happy to see that among the four published opinions the draft opinion of the Committee on Culture and Education authored by Helga Trüpel shares the concerns voiced in our policy paper. In the introduction of the document she writes:

The Rapporteur would like to stress that rightholders should have the possibility to make their works available under an open content license of their choice, for instance under Creative Commons, without necessarily opting out from the collective management system.

Furthermore, the Rapporteur would like to give even more flexibility to rightholders in the management of the rights. CMOs should provide accurate repertory information, in particular for works falling into the Public Domain. CMOs should ensure that the information in respect of the works whose term of protection terminates is accurate and regularly updated, in order to exempt such works from licensing and avoid claims to be enforced by CMOs in that regard.

In the following we take a closer look at the relevant amendments contained in the draft opinion of the Committee on Culture and Education:

Use of open content licenses by members of collective management organisations

While recital 9 of the Commission proposal contains language (‘Finally, this Directive should not prejudice the possibilities of rightholders to manage their rights individually, including for non-commercial uses.’) that clearly indicates that the directive is intended to create more flexibility for members of collective management organisations to exercise their rights individually, the actual provisions of the Commission proposal are somewhat ambiguous in this regard. Given this our policy paper suggests:

…to modify Article 5. This provision currently gives right holders the right to authorise (and terminate such authorisation) the management of ‘rights, categories of rights or types of works and other subject matter of their choice’. By changing this language into ‘rights or categories of rights or works or types of works and other subject matter of their choice’, authors would be effectively enabled to remove some works from the collective management system. This would allow them to make these works available under an open content license of their choice…

In line with this proposal the draft opinion contains three amendements (30, 31 and 32) that, if adopted, would allow rights-holders to remove individual works from from the collective management system. That would enable them to manage these works themselves, giving them the ability to make them available under the terms of open content licenses, including those that allow for the royalty-free commercial use of the licensed works.

In addition the draft report contains an amendment (29) that introduces a new sub paragraph 2 a in Article 5 (‘Rights of rightholders’). This amendement would give members of collective management organisations the right to grant free licenses for non-commercial uses of their works:

Rightholders shall have the right to grant free licences for the non-commercial use of their works and rights. In this case, rightholders shall inform in due time the collective management organisations authorised to manage the rights of such works that such a free license has been granted.

The addition of this sub paragraph is very welcome as it allows members of collective management organisations to make use of some open content licenses (those that only allow for non-commercial uses of the licensed work) without having to remove these works from the collective management system. Having this possibility means that members of collective management organisations can enjoy the benefits of collective rights management (effective collection for royalties form large groups of commercial uses) as well as the flexibility offered by non-commercial open content licenses.

Transparency

With regards to transparency our main concern has been that the measures intended to
increase the transparency with regards to the information about collective management organisations membership and their repertoire are insufficient. Given this we are happy to see that the draft opinion of the Committee on Culture and Education contains a number of amendments that would increase the transparency of membership and repertoire information.

Amendment 34 proposes a new paragraph 5 a in Article 6 (‘Membership rules of collecting societies’) that would require collective management organisations to make membership and repertoire information publicly accessible:

Collective management organisations shall make publicly accessible the list of their members and their respective rights or category of rights or works or type of works and other subject matter which the rightholders authorise the collective management organisation to manage, provided that the protection of the personal data of rightholders is preserved.

In addition amendments 61, 62 and 65 add language to articles 18 (‘Information provided to rightholders, members, other collecting societies and users on request’) and 19 (‘Disclosure of information to the public’) of the proposed directive that reiterates the requirement to make available membership lists and information on the managed repertoire through publicly accessible and searchable interfaces. As we had mentioned in our policy paper the last addition is crucial in an environment where automated data processing is fast becoming the norm.

Finally amendment 66 addresses another issue raised in our policy paper, the accurate and timely identification of works that have fallen into the Public Domain. In our policy paper we had suggested that…

…the legislator should give incentives for CMOs to provide accurate repertory information. In particular, CMOs shall ensure that the information in respect of the works whose term of protection terminates – thus ‘falling’ into the Public Domain – is accurate and regularly updated, so that Public Domain works are duly exempted from licensing.

This suggestion is taken up by amendment 66 which proposes to introduce a new paragraph 2 a under Article 19 (‘Disclosure of information to the public’) of the proposed directive:

Collective management organisations shall ensure that, in accordance with point (ab) of paragraph 1, the information on repertoire is accurate and regularly updated. In this respect, they shall particularly ensure that the information concerning the works whose terms of protection terminate is accurate and regularly updated, and made available to the public.

Conclusion

We are happy to see that most of the issues that we had identified are addressed by the draft opinion of the Committee on Culture and Education. The amendments discussed above would significantly strengthen the directive and therefor deserve broad support. If these amendments end up in the final version, the directive would strengthen the rights of authors who are members of collective management organisations with regards to the use of open content licenses. In addition it would strengthen the position of all users of protected works by ensuring the availability of accurate information on repertoires that are represented by Europe’s collective management organisations.

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