We developed the Manifesto in order to counter the widespread perception that the Public Domain is simply characterised by the absence of copyright. With the Public Domain Manifesto we are proposing a positive definition of the Public Domain that highlights the important role the Public Domain plays for society.

The Public Domain, as we understand it, is the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection, either because it is free from any copyright protection or because the right holders have decided to remove these barriers. It is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. Having a healthy and thriving Public Domain is essential to the social and economic well-being of our societies.

The Public Domain Manifesto goes on to define the Public Domain (something which most copyright laws do not do) and outlines principles and guidelines for a healthy Public Domain. The Public Domain, as aspired to in the Manifesto, is defined as cultural material that can be used without restriction, absent copyright protection. In addition to works that are formally in the Public Domain, this also includes works that have been contributed to the commons under open licenses. In addition, our definition also includes the rights users have under exceptions and limitations to copyright, fair use and fair dealing.

All of these sources that allow for increased access to culture, heritage and knowledge are important and all need to be actively maintained in order for society to reap the full benefit of our shared knowledge and culture. Over the past decade, this “active maintainance” of the Public Domain has primarily taken the form of attempts at copyright reform. Guided by the general principles established by the Public Domain Manifesto activists across the world are fighting for more sensible copyright rules that respect the social and economic functions of the public domain. As a tool to guide copyright reform activism, the manifesto has lost none of its usefulness and urgency over since it was launched. And while there have recently been some promising developments for the Public Domain in the EU copyright reform process the fight to bring copyright back to sensible proportions is far from being over (as evidenced by recent extensions of the term of protection in Japan and Canada).

To express your support for the Public Domain and for more sense copyright rules that put the interests of society at the center of copyright policy, please join us in signing the Public Domain Manifesto.

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While copyright reform generally has a positive connotation, it is important to realise that a reform does not mean that things will change for the better. As we have pointed out before, the copyright reform package presented by the Commission is extremely one-sided. And both the attempt to introduce a new right for press publishers, and the requirements for online platforms to filter user uploads, have the potential to cause a lot of damage to the public domain and the ability of users to access information and express themselves online.

Shrinking the public domain

When it comes to the public domain the proposal to introduce a new right for press publishers contained in article 11 of the Commission’s proposal is the most dangerous, as it has the potential to shrink the public domain. Our 2010 Public Domain Manifesto defines the public domain as being

… comprised of our shared knowledge, culture and resources that can be used without copyright restrictions by virtue of current law.

This definition implies that the scope of the public domain can change in response to changes of the legal environment. The most obvious would be changes to the duration of copyright protection. Lengthening the term of protection would shrink the public domain while shortening the term would grow the public domain (as we argue for in our policy recommendation #1).

A little bit less obvious is the fact that creating new exclusive rights also impacts the public domain. A new publishers’ right would mean that materials which are currently part of the public domain could suddenly become protected. As proposed by the Commission, the new right would apply to any press publication. If such a press publication contains public domain materials, these materials would suddenly be protected under the new right.

The fact that the new right could be used to lift materials out of the public domain (if the new right would apply retroactively) has been noticed by others as well. In its opinion on the copyright reform proposal the Centre d’Études Internationales de la Propriété Intellectuel (CEIPI) argues that

The Directive Proposal does not limit the subject matter to publications presently protected by authors’ rights. It goes far beyond, restricting, for example, uses of works in the public domain. Lifting materials out of the public domain has unwanted consequences, impinging greatly on freedom of expression and democratization, while favouring centralization of information.

An attack on open content

Similar effects can be expected for openly licensed press publications, a term which according to recital 33 of the Commission’s proposal includes news websites. Blogs and websites that contain materials published under Creative Commons licenses would suddenly be protected by a new layer of rights that could be used by their publishers to restrict how these materials can be used. This concern is also highlighted in the Centre for Intellectual Property and Information Law (CIPIL) submission to the UK Intellectual Property Office which has been signed by 37 law professors and scholars:

In addition, the Proposal will create costs associated with huge uncertainties, particularly in respect of the field of application, that the right creates. These costs will need to be incurred by the very many operators who have no interest in the right, but fall within the broad definition of press publication […], who will need henceforth to amend even open-access licences and Creative Commons licences to permit reuses.

A solution that preserves the public domain

All of this illustrates that introducing new rights is a terrible idea. Even more, since there is no demonstrated need for such a right. As we have argued in our position paper on the publisher’s right, there are much more suitable interventions to address what is essentially an enforcement problem faced by press publishers. This assessment is shared in the above mentioned CIPIL submission which notes that:

However, if the real problems facing press publishers relate to licensing and enforcement, the best answer is surely to focus on licensing and enforcement rather than to create new rights. More specifically, the goal of simplifying enforcement might be achieved by a much simpler and proportionate strategy: the amendment of Article 5 of the EC Enforcement Directive, to create a presumption that a press publisher is entitled to bring proceedings to enforce the copyright in any article or other item appearing in a journal of which it is the identified publisher. This would be a presumption that a defendant could rebut by showing that the material used was in the public domain or licensed by the author. The Commission nowhere considers this option.

The fact that the Commission has not even considered such a much less invasive option should be a huge red flag for the European Parliament. From the very beginning the press publishers’ right has been a political project driven by former Digital Economy and Society Commissioner Oettinger. Unfortunately there are no signs that his departure from that post has lead to a re-assessment by the Commission. Instead, it appears that the Commission is digging in to defend the proposal, even though it has yet to make the case why this destructive intervention is needed at all.

The post The proposed publishers right is an attack on the public domain appeared first on COMMUNIA Association.

COMMUNIA advocates for policies that expand the public domain and increase access to and re-use of culture and knowledge. Over the last few years we’ve focused on policy advocacy and copyright reform in Europe, especially in light of the review of the EU copyright rules. The public domain is an essential sphere for creativity and knowledge production, and its limitless potential continues to inform our copyright reform advocacy.

We write in our March 2015 policy paper about several changes to EU copyright law that would better support the public domain. Some of these include capping the term of copyright protection to the minimum required by the Berne Convention, opposing the introduction of ancillary copyrights, protecting the freedom of panorama, and exempting works produced by the public sector from copyright protection. In addition, we call for the introduction of a positive definition of the public domain, the recognition of the legal validity of voluntary dedication of works to the public domain by their authors, and clarity that digitizing public domain works should not generate new exclusive rights.

In June of last year the European Parliament adopted an evaluation report on the existing EU copyright rules authored by MEP Felix Reda. While the EP failed to call for substantial updates to exceptions and limitations, it contains some support for the public domain. It urges the European Commission to clarify that once a work is in the public domain, the simple act of digitisation does not create new rights. It suggests that the term of copyright be held at the international standard (life of the author plus 50 years). It also states that works created by government employees should be in the public domain. Finally, it recognizes that authors should be able to dedicate their works to the public domain.

With its report, the European Parliament also rejected the introduction of an ancillary copyright for for press publishers. This is an important victory as adding such an extra layer of rights to the already extensive body of copyright and copyright-like protections would further limit the public domain. Unfortunately, the European Commission still hasn’t distanced itself from plans to introduce an ancillary copyright on the EU level, which has prompted 83 members of parliament to reconfirm their opposition to it in December.

With legislative proposals promised by the Commission in the first half of this year, 2016 promises to become a crucial year with regard to the shape of the public domain in Europe. On the 25th of January we are kicking the year off with an event in the European Parliament celebrating Public Domain Day (hosted by MEP Felix Reda). Together with creators and policymakers, we will discuss the value of the public domain and how an update of the EU copyright rules can strengthen the public domain for everyone.

The post Copyright Week 2016: The public domain as foundation for EU copyright law reform appeared first on COMMUNIA Association.

Given the limited term of protection granted by copyright law, a large number of works – whose authors died several decades ago – can no longer be owned by anyone and their use can no longer be constrained. They have become part of the common pool of knowledge that constitutes our cultural heritage and that can be freely used by everyone and for any purpose.

This year, in Europe, we are happy to welcome the works of:

Walter Sickert, a German painter who had an important influence on distinctively British styles of avant-garde art in the 20th century.

Grant Wood, an American painter from Iowa best known for his paintings depicting the rural American Midwest. He is best known for his painting American Gothic, an iconic image of the 20th century.

Bruno Schulz, a Polish writer and artist most famous for his collection of short stories The Street of Crocodiles (1934) which centre on a merchant family from a small town in the Galician region.

Arthur Edward Waite, a scholarly mystic who wrote extensively on occult and esoteric matters, and co-created the widely used Rider-Waite Tarot deck.

Stefan Zweig, one of the most famous authors in the world of the 1920s and 1930s;

Franz Boas, a German-American pioneer of modern anthropology often referred to as the “Father of American Anthropology”. He applied the scientific method to the study of human cultures and societies; previously this discipline was based on the formulation of grand theories around anecdotal knowledge.

Robert Musil, an Austrian writer whose huge tome of an unfinished novel “The Man Without Qualities” is generally considered to be one of the most important modernist novels;

… and many more.

The Public Domain Review has compiled a list of the most notable authors whose works are entering the public domain in those countries with a ‘life plus 70 years’ copyright term.

These works can now be freely reproduced and shared to everyone; they can be freely use, reused, translated, adapted or otherwise modified by anyone without asking for permission and without incurring the risk of violating the law.

Yet, it is important to remember that copyright law differs from one country to another. For instance, in the U.S., the Sonny Bono Copyright Term Extension Act – which added 20 years to most copyright terms – effectively “froze” the public domain by stipulating that, unless otherwise stipulated by the copyright owner, all works produced in or after 1923 and still eligible for protection in 1998 would not enter the public domain until 2019 or after. Unfortunately, today, there is not much to celebrate for them.

Hence, before using a work, it is always necessary to check the status of the work in the country where it will actually be used. Yet, given the complexity of copyright law, this can often be an extremely tedious complicated process. To facilitate the task, various tools have been developed –  such the Public Domain Calculators of the Open Knowledge Foundation, and  outofcopyright.eu from Europeana – to help determine which works are in the public domain in various countries around the world.

For more information on the public domain day, check out the Public Domain Day website – an initiative of the international Communia Association for the promotion and the preservation of the Digital Public Domain, with the special support of the Open Knowledge Foundation.

The post Happy Public Domain Day appeared first on COMMUNIA Association.

While this seems rather straightforward it seems like a good opportunity to recall the underlying complexities of calculating copyright term duration: If you have a fast internet connection and a big screen, you may want to take a look at this 25 MB pdf, which depicts the decision trees for 30 european jurisdictions that power the public domain calculators on www.outofcopyright.eu.

The interesting thing about this PDF is not how complex it is in absolute terms, but rather that the subject matter depicted is supposed is something that the EU considers to be ‘harmonized’ (by the 2006 copyright term directive). As you can easily tell by glancing at the image above, copyright duration in the EU is anything but harmonised. In fact, as Christiana Angelopoulos, who compiled the information contained in the pdf, argues in a new paper, we are dealing with 27 different public domains for the 27 member states of the EU.

According to Angelopoulos this is the result of four parallel failures of the harmonisation effort (Gaps in Conceptual Harmonisation, Exceptions to Harmonisation, Related Rights of Unharmonised Term and Incorrect Implementation of the directive). One of the most interesting passages of her paper is the one about the effects of the war-related term extensions that are part of French copyright law:

In France, the Intellectual Property Code contains three provisions extending the term of protection for works which were in copyright during WWI and WWII or whose authors died for France. To compensate the loss and difficulties in the commercial exploitation of works during the two World Wars:

1. The rights of authors, composers and artists of works published before the signing of the Treaty of Versailles and which had not fallen into the public domain on 3 February 1919 were extended by 6 years and 152 days;
2. The rights of authors, composers and artists of works published before 1 January 1948 and which had not fallen into the public domain on 13 August 1941 were extended by 8 years and 120 days;
3. The rights of authors, composers and artists who died for France during WWI or WWII were extended by 30 years.

It should be noted that the two first extensions can accumulate in cases of works published during WWI, which can then benefit from an extension of up to 14 years and 272 days.

[…]

The fate of the 30-year extension in favour of authors who died for France has not been decided upon by the courts. If the provision remains valid, then depending on the applicability of the other extensions, the term of protection of a musical work whose author died for France may range from 100 years pma (70 years pma + 30 years) to 114 years and 272 days pma (70 years pma + 30 years + 6 years and 152 days + 8 years and 120 days). With regard to non-musical works, commentators are divided on whether the added mileage would salvage the other two extensions as well: some commentators consider that the extensions due to the wars remain absorbed by the new harmonised term of protection. In this case, a non-musical work whose author died for France, whether published during WWI or WWII or not, will benefit from a term of protection of 100 years pma (70 years pma + 30 years). Others argue that, given that the accumulated extensions will certainly result in a term longer than that of the Directive, the calculation should be made on the basis of the old 50 years pma rule. As a result, the term for non-musical works whose author died for France would vary between 80 years pma (50 years pma + 30 years) and 94 years and 272 days (50 years pma + 30 years + 6 years and 152 days + 8 years and 120 days), depending on the date of publication of the work.

The case of a non-musical work published during WWI or WWII and written by an author who died for France is not hypothetical. Several famous authors belong to this category, including Antoine de Saint-Exupéry, Guillaume Appolinaire and Charles Péguy; uncertainty thus surrounds the term of protection of their works. For example, the entry of Antoine de Saint-Exupéry’s famous novella The Little Prince into the public domain oscillates from 1 May 2033 to 1 January 2045, depending on the interpretation accepted. (Christina Angelopoulos: The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States, IIC, 2012-5, p. 567.)

These extensions can make life rather difficult for anyone compiling lists of authors whose works will enter into the public domain. More generally the lack of harmonisation points to a bigger problem though. If copyright is indeed the primary system of assigning ownership in knowledge driven economies then we should be seriously concerned about the complexity of the system, which makes it extremely difficult to ascertain if a work can be used without permission from the author or not. COMMUNIA has pointed this out in our policy recommendation #4 and it appears timely to point out the need for more harmonisation in the light of the upcoming public domain day on the 1st of January 2013.

The post The Little Prince and the Public Domain appeared first on COMMUNIA Association.

What unites all these organisations is that they share the common goal of encouraging the dissemination of knowledge and information, including – but not limited to – works that are in the public domain.

After an introduction by Adrienne Alix (Wikimedia France) and Mélanie Dulong de Rosnay (ISCC/Communia), the event started with a screening of Georges Méliès’ science fiction movie “A Trip to the Moon” from 1902. This was followed by a presentation of works that entered the public domain on January 1st 2012. A list was created by sorting the entries of Wikipedia according to the authors’ deaths and is available at the following address. The list includes famous French authors such as Maurice Leblanc (Arsene Lupin), as well as the painter Robert Delaunay. It also includes internationally renowned authors such as James Joyce and Virginia Woolf, to name a few.

After the initial celebration, Lionel Maurel (Bibliothèque Nationale de France) and Primavera De Filippi (Open Knowledge Foundation) went on to illustrate the role of open bibliographic metadata in its relation with the public domain. While accurate and precise metadata is necessary for the purpose of identifying works that have fallen in the public domain, it is often difficult for libraries and other cultural institutions to provide all necessary information to properly determine the legal status of a work. This also was the occasion to present the Public Domain Calculators of the OKF and the challenges that must be addressed as a result of the complexities of French copyright law.

This intervention was followed by a round table between Philippe Aigrain (La Quadrature du Net), Rémi Mathis (Wikimedia France), Jérémie Zimmermann (La Quadrature du Net), Tangui Morlier (Regards Citoyens) and Lionel Maurel (Bibliothèque Nationale de France), accompanied in the background by a series of silent movies from the Lumière brothers.

Rémi Mathis started to discuss the fonction assumed by the public domain in the dissemination of culture and information, focusing on the various projects of Wikimedia. He began by explaining the concept of the public domain and the advantages it might bring to society, to subsequently present a number of initiatives, such as Wikicommons and Wikisource, which are strongly related to the public domain. There are however still several challenges to be addressed before one can rely upon the public domain in order to create a common cultural heritage at the national and international level.

Philippe Aigrain went on by explaining the relationship that subsists between the public domain and the common good, a relationship that is difficult to establish because of the poorly defined concept of the public domain. challenges faced by the public domain as a common good and its impact on society. From an historical perspective, Philippe Aigrain draws a distinction between “res nullius” (what does not belong to anyone) and “res communis” (what belongs to the community), and argues that the copyright system should shift from a situation where anything that is not in the public domain cannot be freely reused to a situation where anything can be freely reused unless it has been specifically provided otherwise.

It was then the turn of Jérémie Zimmermann, whose speech starts with an important question: “Does society need to change according to the rules of law, or is it the law that must change to better comply with society?” Jérémie presented the dangers threatening the public domain, as a result of the constant expansion of intellectual property laws, the introduction of sui-generis rights on formerly non-protected materials, and the growing imposition of contractual restrictions on the legitimate use of a protected work. He contended, however, that the most fundamental thing to preserve is the free Internet, intended as a network that is not affected by governemental control or corporate censorship. Given the recent issues at stake, Jeremie concluded his talk with a series of warning concerning the biggest threats to the free Internet, known under the acronyms of ACTA, SOPA, PIPA, URAA and so forth.

Tangui Morlier went on to present the activities of Regards Citoyens and how their activities are affected by similar issues to those affecting the public domain. As data are not subject to the french copyright but to a sui-generis right on facts and information, public domain means, for the Open Data community, more “res nullius” than “res communis”. To make government data part of the Commons as Regards Citoyens would wish, new legal tools are needed such as a real Freedom of Information Act and a public list of all public government data made accessible to private entities. Unless these tools are built, it is currently necessary to consider what is the most effective contractual tool. The answer is obviously to encourage the use of free/libre licences (such as the ODBL, CC-Zero or the « Licence Ouverte » in France) in order to allow anyone to freely use and re-use public and governmental data.

Finally, Lionel Maurel closed the discussion with an important observation. The fundamental problem of the public domain is that it does not exist, given that in France, at least, it can only be defined as a negation of rights. In this respect, he referred to the Public Domain Manifesto of the Communia network which constitutes a preliminary attempt to define the public domain from a more positive stanpoint.

The event ended with a series of informal discussions around a cocktail in order to celebrate the public domain and the success of the public domain day.

The post Public Domain Day 2012 (Paris) appeared first on COMMUNIA Association.

Journée du domaine public
Jeudi 26 janvier de 18h à 21h
Institut des Sciences de la Communication du CNRS (ISCC)
Maison des Sciences de la Communication et de l’interdisciplinarité (MSCI)
20, rue Berbier du Mets 75013 Paris
Metro Gobelins

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The New Year’s festivities are just behind us and with these the celebrations around Public Domain Day 2012 that took place in different cities in and outside Europe (Warsaw, Zurich, Turin, Rome, Haifa etc.).

2012 brings with it the joy of using James Joyce’s masterpieces without asking the estate for prior authorization (which more often than not met with a ‘no’ for an answer!). No one needs to be afraid of using the works of Virginia Woolf any longer! And the fans of Arsène Lupin, the French ‘gentleman burglar’, are now able to borrow – for good! – the ideas of its author, Maurice Leblanc. The works of several music composers are also free for reuse, including those of Frank Bridge and Johan Wagenaar.

The Public Domain Day IS important and SHOULD be celebrated annually, for it gives us the occasion to reflect on the significance of works of past authors and to measure the wealth of our common knowledge and culture. But unlike the New Year’s celebrations, however, those of the Public Domain Day do not attract much attention among the general public. Festivities of this sort are usually low-key, taking place in libraries, universities or cafés and gathering only the selected few of the well informed and culturally savvy.

Any cramped optimism concerning the public domain is further discouraged by the fact that the term of protection for copyright and related rights is 1) highly unharmonized across jurisdictions and 2) still being strechted beyond recognition through constant legislative action.

As an illustration of the first point, let me mention the case of world famous writer Ernest Hemingway (1899-1961) whose works have fallen into the public domain two days ago in Canada, but neither in his home country, the United States, or in Europe, where copyright lasts for the life of the author + 70 years.

In Europe, the calculation of the term of protection for copyright and related rights is rendered particularly complex due to the lack of proper harmonisation of the governing rules in EU jurisdictions. Although the adoption of the EC Term Directive was an attempt to alleviate disparities between the Member States, harmonisation gaps persist. As a result, the composition of the public domain will differ depending on the country in which protection is sought, as works fall out of copyright on different dates in different EU jurisdictions. This effect is illustrated in the Public Domain Calculators by the need for separate calculators, giving upon occasion very different results, for each of the 30 jurisdictions covered, including the 27, ostensibly harmonised, EU Member States.

In relation to the second point, 2012 will inevitably see the first pieces of national legislation emerge in the EU Member States towards the implementation of Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. Through this statutory amendment only sound recordings published or communicated to the public before 1941 will be free for use. In practical terms, this means that none, not even the early recordings, of Maria Callas will be available for re-use without prior authorization of the record company holding the rights.

Finally, the march towards term extension does not seem to have reached its limit if one only takes a look at the clauses contained in bilateral and mulilateral trade agreements currently negotiated by the United States. Article 4.5 of the Trans-Pacific Partnership, for example, would bring the copyright term of protection of signatory countries up to the American (and European) level, as has been the case in the past in the context of bilateral agreements (with Australia and many countries of Central and South America, to name but these).

These are very sobering thoughts indeed! If the alcohol fumes of the New Year’s party still had any effect, one could even be tempted, for simplicity’s sake, to just make copyright protection perpetual…

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In principle, all the above activities are perfectly possible even before the expiration of copyright. On condition, however, that one asks for permission the copyright owner (assuming that it can be located: let’s ignore here the huge problem of the so-called “orphan works”) and pays whatever is requested. Noting that very often the copyright owner is not the author (or his/her descendants), but a for-profit publishing house.

Consequently, many activities do not take place because either the copyright owner does not like the idea (no manga, for instance), or because the wannabe new author cannot afford to pay what is requested by the copyright owner.

Such restrictions, introduced, in their modern form, about three centuries ago to provide – for the common good – incentives to authors, now last an unprecedented seventy years (in Europe and in many other countries) after the death of the authors.

A shockingly long time, that an increasing number of scholars, NGO’s (among them the COMMUNIA association) and citizens are asking to reduce. To know more about the current debate on copyright reform and the role of the public domain, see for instance the Public Domain Manifesto, or check out the OKF’s Working Group on the Public Domain.

But as we work towards copyright reform, every January people who care about the public domain get together and welcome the works of a new batch of authors. In recent years, public domain day celebrations have taken place in cities throughout the world, from Zurich to Warsaw, from Torino to Haifa, from Rome to Berlin. The volunteer-staffed website publicdomainday.org provides an information hub for such celebrations.

The celebrations typically take place in libraries, universities or cafés. People read – or sometimes perform – the work of the new authors. It is often a moving experience, as great men and women from the time of our grand (and grand-grand) fathers come back to life under our affectionate gaze.

During the month of January 2012 people will gather again. Celebrations have already been announced in, among other places, Warsaw, Zurich, Torino and Rome. We hope that others will follow the example. Welcoming the works of some of our great writers, musicians, painters, poets, journalists, scholars is a most gratifying way to start the new year and also a great way to enhance the knowledge of our common cultural roots.

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