We discuss the considerations of the use of copyright-protected works and other protected subject matter as training data for generative AI models, and provide two recommendations for lawmakers. Here, we leave aside questions relating to the output of AI models (e.g. whether the output of generative AI models is copyrightable and in how far such output can be infringing exclusive rights), which we will address in another, yet to be published paper.

This paper is without prejudice to the position of COMMUNIA or individual COMMUNIA members regarding this discussion in other jurisdictions.

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The best way to achieve the proper balance of interests at stake is through the adoption of an exception or limitation to copyright for educational purposes that meets the following requirements:

• it should be able to address local and cross-border education needs;
• it should be mandatory;
• it should be neutral with regard to media type, format, and technology;
• it should be flexible; and
• it should cover all necessary uses provided they are in accordance with fair practice.

We note that an exception or limitation to copyright for educational purposes is crucial because licensing will never be a wholly adequate solution to provide access to these works.

The full policy paper can be viewed online or downloaded as a PDF here.

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Our position is based on the 14 policy recommendations that are at the heart of our organisation, as well as on our previous policy documents. We start by defining three basic principles:

1. Exclusive rights should be limited.
2. The public domain should not be eroded by legal or technical means.
3. Limitations and exceptions to copyright should continue playing their role of adapting copyright to technological changes.

Based on them, we formulate 12 positions on  the EU copyright framework reform. We will be using them as guidance for our own advocacy work – but we present them also as recommendations for policy makers.

These positions are result of a discussion on ways of translating a general principle of defending and expanding the public domain into recommendations that fit onto current policy debates in Europe.  In this light we are pleased to see that the majority of our positions have been covered by MEP Reda in her draft report on the implementation of of the InfoSoc directive.

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

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

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

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

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The Public Domain ensures the free dissemination of knowledge and provides everyone with the potential to access and create new works based on previous works. Thus, all Public Domain works should be free for everyone to use and reuse. Yet, as many cultural heritage institutions are entering into contractual agreements with third parties for the digitization of Public Domain works, there are serious concerns regarding the conditions of access, use and reuse of the resulting digitized copies.

Ideally, digital copies of Public Domain materials would be made immediately and freely available to the public. However, in practice, many of these public-private partnerships impose contractual restrictions that limit access and re-use of Public Domain materials. These restrictions have the same effect as introducing a new proprietary right over the digitized copies of Public Domain material, thereby substantially limiting the use and reuse of content that belongs to the common cultural heritage by subjecting it to a requirement of prior authorisation.

This risk is further increased with the introduction of the PSI 2013 regime, which allows the conclusion of exclusive agreements between private entities and PSBs under restrictive terms and with a potential perpetual validity.

A work in the Public Domain should have the same legal properties, regardless of the format or medium it is in. Hence, works that are in the Public Domain in analog form [should] continue to be in the Public Domain once they have been digitised (see the Europeana Public Domain Charter, Principle #2, and Communia Public Domain Manifesto, Recommendation #5). Contractual agreements as regards the digitization of Public Domain works should acknowledge and respect the fundamental properties of these works, and not attempt to subvert Public Domain principles through contract and other legal mechanisms.

To ensure the broadest availability and long-term accessibility of Public Domain works, their digital copies should be made available to the public in a format and medium allowing for easy identification, retrieval and modification, while ensuring the maximum interoperability of these works. The use of metadata and open formats constitutes an important requirement to ensure that the value of the Public Domain is properly understood and that the works belonging to the Public Domain will always remain freely (re)usable.

In view of this, we make the following recommendations:

No copyright protection

• over the digitized version:

All parties to the partnership should expressly state that they do not claim copyright nor sui generis rights in the digitized copies of the Public Domain material.

• The digitized version should be marked as in the Public Domain using a tool such as the Creative Commons Public Domain Mark, or, alternatively, if digitization itself gave rise to new related rights, these should be waived by applying a Public Domain dedication tool such as CC0.
• Up-to-date metadata and the database (if protected by sui generis rights) should be made available and dedicated to the Public Domain using tools such as the CC0 Public Domain Dedication following the model of Europeana, the Digital Public Library of America, Harvard Library and the British Library.
• for newly published works:

In countries where copyright law grants an additional term of protection to the publishers of Public Domain works that have never been published before, the rights holder should dedicate the work to the Public Domain by means of tools such as the CC0 Public Domain Dedication.

No contractual restrictions

• Access and reuse to Public Domain works should be unrestricted, both on premises and on the Internet for any type of use and reuse, including for commercial purposes.

• No exclusive agreements should be made between the cultural institution and the commercial vendor that would preclude another vendor or institution from digitizing or distributing the same Public Domain material.

Openness & Transparency

• The institution should use standardized, open technological formats and request the contractor to transfer digitized material and metadata in standardized open technological formats.

• Bidders’ offers should be made publicly available. Transparency should prevail in the decision-making process affecting public access to our common cultural heritage collections.

The Communia International Association calls for cultural institutions, such as libraries, archives and museums to observe the following guidelines, and to promote them in their negotiations with contractors, donors and legal owners of materials.

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The COMMUNIA Association welcomes the European Commission’s efforts to modernise collective management in Europe by providing rules for multi-territorial licensing of rights in musical works for online uses, and more generally by increasing the standards for transparency and accountability of Collective Rights Management Organizations (CMOs) operating in Europe.

Copyright management plays a central role in determining legal certainty for the digitisation of the European cultural heritage and for enabling an accessible and reusable digital Public Domain. This proposed directive intervenes at a crucial moment in the evolution of the information society and in the history of the European copyright system, where innovation and public access to knowledge should be a priority of policy-making.

The policy paper draws attention to two issues where the proposal should be improved. The first one concerns the transparency of repertoire information. We consider the proposed measures not sufficient and suggest an amendment to require that CMOs must provide this information more widely. The second issue concerns the relation between collective management and open content licenses. In our opinion, the proposed directive fails to address the existing incompatibilities between the collective management of rights and open content licensing.

The full COMMUNIA Association reaction on the Directive proposal on Collective Management of Copyright can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.

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This work-in-progress document presents policy recommendations and strategies aimed at the transnational level, namely WIPO CDIP and SCCR. Legal language will be drafted at a later stage.

Policy recommendations are:

1. 1. Definition of a positive status for the Public Domain
2. 2. Recognition of the validity of voluntary dedication to the Public Domain
3. 3. Facilitating the identification of the Public Domain status

The full policy paper can be downloaded as a pdf: Communia Positive Agenda for the Public Domain and the full text is also available below/after the jump.

Preamble: what is the Public Domain?

The Public Domain consists of all material that can be freely accessed and reused:

• creations which are no longer covered by copyright or related rights,
• information, facts, data, and ideas which are outside of the scope of copyright protection.

These materials are the basis of the exercise of many fundamental human rights and values, such as the right to cultural expression and to education, freedom of expression, citizen democratic participation and economic and social innovation.

Rationale: why strengthen the Public Domain?

The role of the Public Domain, already crucial in the past, is even more important today, as the Internet and digital technologies enable us to access, use and re-distribute information with a marginal cost of zero. It has thus become necessary to reform the copyright system to recognise the existence of the Public Domain, so as to counteract the continuous extension of copyright protection threatening the right to access and reuse culture, education, science and public information for the shared benefit of all creators and members of the society.

Policy recommendations

1. Definition of a positive status for the Public Domain

The Public Domain deserves a positive recognition to better identify works and usages which are available for creators and users to build upon. It should not be defined as a mere non “Intellectual Property” protection zone. This would be consistent with the history of “Intellectual Property”, which used to consider the Public Domain as the rule and copyright as the exception, as a temporary and limited monopoly of exploitation. This crucial balance should be clearly reintroduced within the copyright regulatory framework.

Implementation:

1.1. Positive definition

Copyright law should include a definition for the Public Domain.

Proposed legal language:

The Public Domain consists of all material that can be freely accessed and reused. This shall include:

1.1.1. Material being no longer covered by copyright protection: these include copyrighted works but also data, databases, compilations, performances, phonograms and broadcasts subject to copyright-related protection.

For example, Chilean Law No. 17,336, article 11 recognises the existence of the Public Domain as a common pool of works that “may be used by anyone, provided they respect the ownership and integrity of the work.” This includes, inter alia, “(a) Works whose term of protection has been extinguished.”

1.1.2. Information, facts, data, and ideas which are outside of the scope of copyright protection: these include all materials that are not eligible for protection under copyright or related rights.

Copyright legislations usually provide a list of material subject to protection but not of items which should remain out of protection. This contrasts with patent laws in many jurisdictions, which often include specific provisions stipulating what is specifically excluded from protection.

1.2. Legal safeguarding

The Public Domain should be safeguarded from private appropriation and closures through legal, contractual or technical barriers. Works that are in the Public Domain in analogue form should stay in the Public Domain once they have been digitised.

Implementation:

1.2.1. Safeguarding the Public Domain from private appropriation

A positive definition of the Public Domain should be accompanied by guarantees of freedom of access and re-use for all, without the possibility for adding legal, contractual or technical restrictions.

The WIPO 1996 Treaties should prohibit the use of technical protection measures on Public Domain material.

There should be a system for legal recourse allowing Public Domain users to prevent attempts of Public Domain misappropriation. Legal sanctions should be devised to prevent false or misleading attempts to claim exclusivity over Public Domain material.

For instance, Chilean Law No. 17,336, article 80 provides that “(a) anyone who knowingly reproduces, distributes, makes available or communicates to the public a work belonging to the public domain […] under a name which is not that of the true author” or “(b) anyone who claims or demands economic rights in works in the public domain” shall be “deemed to have committed an intellectual property violation.”

1.2.2. Preserving the digital Public Domain

Digital reproductions of works that are in the Public Domain shall also belong to the Public Domain. The use of works in the Public Domain should not be limited by any means, either legal or technical.

The internet enables the widespread re-use of digital reproductions of works whose copyright protection has expired. The Public Domain status of these works means that there is no owner who can impose restrictions on their reuse. Nonetheless, the owners of the physical works (such as heritage institutions) can consider themselves entitled to control digital reproductions and impose restrictions on their reuse conditions. However, the digitisation of Public Domain works does not create new rights: works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitised.

Therefore, the law shall consider such restrictions to access and reuse of digitised Public Domain material as void (with possible legal sanctions).

2. Recognition of the validity of voluntary dedication to the Public Domain

Dedicating a work or any copyright protected item to the Public Domain should be considered as a legitimate way to exercise one’s exclusive right in order to contribute to a common pool of reusable works. (We recommend the use of “dedication” to the Public Domain as a more positive expression than “voluntary relinquishment of rights”).

The legal enforceability of voluntary dedications (or “rights relinquishments”) should be recognised in all jurisdictions and interpreted as compatible with rightholders’ moral rights.

A positive status for the Public Domain should recognise in all jurisdictions the legitimacy and enforceability of voluntary dedications to the Public Domain by the use of tools such as CC0. Moral rights should not be seen as impediments, as dedicating a work to the Public Domain is in fact a way to exercise one’s moral rights. Since moral rights are compatible with the Public Domain, they are also compatible with the voluntary Public Domain.

For example, Chilean Law No. 17,336, article 11 stipulates that the Public Domain shall include, inter alia, “(c) works whose owners have waived the protection granted by [copyright] Law” which “may be used by anyone, provided they respect the ownership and integrity of the work.”

Besides, the mandates between collective rights management organisations and their members should guarantee the ability of rightholders to fully exercise their rights to dedicate their works to the Public Domain.

3. Facilitating the identification of the Public Domain status

It is difficult to assess whether a work is in the Public Domain due to the complexity and the lack of harmonisation of national copyright rules. The need for legal certainty for users in this respect calls for clarification. Beyond registration and Rights Management Information systems, copyright law shall allow for a clear identification of the Public Domain status of a work or any subject-matter eligible for copyright or copyright-related protection.

Implementation:

3.1 Simplified and harmonised copyright duration and territoriality rules

The rules to determine the term of copyright protection have become so complex that it is almost impossible to establish with certainty whether a work or other subject matter is protected by copyright or whether it is in the Public Domain. Harmonising the legal framework with regard to copyright duration and territorial scope would allow for an easier identification of Public Domain contents across the world.

The way to reduce the divergence between national legislations as regards copyright scope and duration should be clarified at WIPO and EU levels.

3.2 Rights Information Measures

The role of Rights Management Information (RMI) in the identification of the contents of the Public Domain should be recognised. The use of a “Public Domain Mark” such as the tool developed by Creative Commons or a stronger equivalent with metadata carrying the stamp of the declarant – be it a national library, the ministry of culture or public and private registries – would be extremely useful to identify Public Domain material and prevent their misappropriation by adding a layer of rights.

Such technical informational tools identifying Public Domain contents shall be coordinated on a trans-national level by existing rights management structures such as collecting societies.

The definition of “Rights Management Information” in the 1996 WIPO Treaties should include any electronic information pertaining to Public Domain material as recommended by Prof. Severine Dusollier.

3.3 Registration tools

The relevance of registration tools to help identify and locate rights holders and Public Domain contents has to be acknowledged and further analysed. Easier identification and location of rights holders and Public Domain material would help avoid situations like the “orphan works” phenomenon and foster innovative digitisation initiatives. In this respect, the re-introduction of copyright protection formalities would deserve further analysis.

In order to prevent a default protection system being not in line with both digital needs and rightholders’ will for less protection, full copyright protection should only be granted upon registration. Non-registered items eligible for copyright protection should only get moral rights protection. This would help users identify resources being in the Public Domain, either at the end of rights duration or following a Public Domain dedication.

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COMMUNIA is supportive of the Commission’s suggested changes to the PSI Directive — most notably the decision to include cultural heritage institutions into the scope of the amended Directive. Access to and re-use of public sector information (PSI) has been one of the issues that has featured prominently in the work of COMMUNIA. The EC proposal to amend the PSI Directive is aligned with one of COMMUNIA’s January 2011 policy recommendations (#13), which states, “The PSI Directive needs to be broadened, by increasing its scope to include publicly funded memory organisations – such as museums or galleries – and strengthened by mandating that Public Sector Information will be made freely available for all to use and re-use without restriction.”

The policy paper draws attention to two issues where the proposal to amend the Directive should be improved. The first one concerns the conditions for re-use of public sector information that falls within the scope of the Directive and the second one deals with public domain content that is held by libraries, museums and archives.

Conditions for re-use of public sector information 

From the perspective of COMMUNIA the way the amended Directive addresses licensing of public sector content remains underdeveloped and as such has the potential to create diverging and potentially incompatible implementations among the Member states. The article of the amended Directive dealing with licensing mentions “standard licenses,” but does not sufficiently clarify what should be considered to be a standard license, and encourages the development of open government licenses. Instead of recommending the use and creation of more licenses, COMMUNIA suggests that the Commission should consider advocating the use of a single open license that can be applied across the entire European Union. Such licenses (stewarded by the Open Knowledge Foundation and Creative Commons) already exist and are widely used by a broad spectrum of data and content providers.

Public Domain Content held by libraries, museums and archives

COMMUNIA supports the decision to include cultural heritage institutions under the purview of the PSI Directive, as such a move will improve citizens’ access to our shared knowledge and culture and should increase the amount of digitized cultural heritage that is available online. While the amended Directive makes it clear that documents held by cultural heritage institutions in which there are no third party intellectual property rights shall be re-usable for  commercial or noncommercial purposes, it does not address the largest category of works held by cultural heritage institutions — those that are not covered by intellectual property rights because they are in the public domain. COMMUNIA thinks that explicitly including public domain content held by libraries, museums and archives in the re-use obligation of the amended PSI Directive will strengthen the Commission’s position with regard to access and re-use of public domain content.

The full COMMUNIA association reaction to the EC’s proposal to amend Directive 2003/98/EC on re-use of public sector information can be downloaded here. For further information about the paper please contact the COMMUNIA Association at communia DOT association AT gmail DOT com.

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COMMUNIA is especially concerned with the narrow focus of the directive and its one-sided view on diligent search. In its current form the directive does not meet COMMUNIA’s March 2011 policy recommendation on orphan works:

Recommendation #9: Europe needs an efficient pan-European system that guarantees users full access to orphan works. Both mandatory exceptions and extended collective licensing in combination with a guarantee fund should be explored. Any due diligent search requirements should be proportionate to the ability of the users to trace the rights holders.

According to the policy paper, a main weakness of the proposed directive is its narrow focus on public cultural heritage institutions as the only beneficiaries of the proposed exceptions allowing the use of orphaned works:

It is COMMUNIA’s position that the group of users who may benefit from the orphan works directive should be widened to include everyone. The targeted group of end users should include individuals as well as non-profit initiatives like Wikipedia, which would currently not benefit from the proposed directive. Wikipedia is one of the most important platforms for access to cultural heritage information drawing more than 136.9 million European users alone.

A further concern is the vague standard for search.

There need to be mechanisms to determine the location where a search has to be carried out in cases where the works have not been published or where it is unclear where the works in question have been first published.

The full set of comments in the COMMUNIA policy paper on the proposed orphan works directive can be downloaded here. For further information about the paper please contact the COMMUNIA Association’s Orphan works working group at communia DOT association AT gmail DOT com.

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