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.

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

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

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

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

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

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

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

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

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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.

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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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