The proposed term extension of copyright protection for performers and sound recordings will harm the public domain and must not be implemented.

(Corresponding to COMMUNIA Policy Recommendation 2 - Download Postcard)

The Commission and Member States should carefully review expert opinions on this topic, as detailed at the end of this recommendation. Term extension will not create additional incentives to create but will make access to large parts of our audiovisual heritage more difficult than it already is. Instead of pursuing this special interest driven legislation the divergence in the length of protection between allotted to performers and authors should be taken as an opportunity to reevaluate the effectiveness of the current term of protection. Such a reevaluation must take into account the COMMUNIA policy recommendations #1 and #8.

Background

In July 2008, the European Commission adopted a proposal (COM(2008) 464/3) intended to extend the term of protection for performers and sound recordings. Currently these rights are protected for 50 years starting from the recording (or “fixation”) or from the performance, as the case may be. According to the proposal, the term would have been extended to 95 years. According to the Commission, the aim of the proposal was to bring performers' protection more in line with that currently available to authors (expiring 70 years after their death). More generally, the extended term was deemed necessary to enable performers to earn a decent income during their lifetime.

In April 2009 the proposal was voted in Parliament, which essentially approved it, with the following main planks: (1) the extension of the term of protection from 50 to 70 years (instead of the proposed 95); (2) the creation of a fund for the benefit of session players amounting to 20% of record labels' offline and online sales revenue coming from the term extension; (3) a “use it or lose it” clause allowing performers to get back control of their rights after 50 years, in cases in which producers are not marketing their recording; and (4) a newly introduced “clean slate” provision, preventing the use of previous contractual agreements to deduct money from the additional royalties granted to performers from the term extension.

Overall, the Parliament reduced the quantitative significance of the term extension (from 45 to 20 years) and slightly reinforced the provisions aimed at ensuring the benefits from the extension could accrue in a significant way to performers. However, these amendments did not substantially address the reasons because of which all the independent studies which examined the term extension proposal came to the conclusion that the proposed measures fail to reach each and all of their intended goals (see below).

That is the case because of several orders of reasons:

(1) The proposal fails to provide for additional income effectively accruing to the pockets of performers, since performers lack bargaining power vis-à-vis their more powerful counterparts, the labels (to which they frequently assign all their rights through so called buy-out agreements). Instead of addressing this issue, Art. 10a of the draft directive still provides that agreements between performers and phonogram producers entered into before the date of the term extension would remain in force, “in the absence of clear contractual  indications to the contrary”.

This conclusion is not affected by the provision whereby a minimum of 20% of the additional proceeds received by phonogram producers would be allocated to a collecting-society managed social fund. This benefit would accrue only to session musicians and, moreover, its calculation method is at best uncertain. The relevant proceeds are the ones generated through the reproduction, distribution and making available of the performances, with the exclusion of the important income deriving as a result of communication to the public (e.g. by radio broadcasting).

(2) The proposal does not even supply any effective incentive to phonogram producers and to labels. This is so for the very fundamental reason that the proposal also applies to existing works and no provision adopted today may provide any incentive towards investments which were already decided and made in the past. Even if we look at the future only, the need for an additional prospective incentive is hardly proved. Indeed, the common intuition whereby digital technology has decreased rather than increased the costs necessary to set up a performance and to fixate it has been confirmed by available empirical evidence [Helberger et al 2008].

(3) The Commission explicitly relates the need for a term extension to the fact that the music industry is suffering from illegal peer-to-peer file sharing and need to be compensated. However, it is hard to see how the extension of the term may in any way deter illegal distribution of music.

(4) The case made by the proposal whereby European label companies should be put on an equal footing with their US counterparts, which recently were granted an extension of terms similar to the one proposed for the EU, is technically flawed and misguided. Indeed, in the field of IP, including in connection with the neighbouring rights here considered, which in the US are described as copyright in sound recordings, the principle of National Treatment applies. Now, as a result of this principle, European labels currently are not in any way disadvantaged in comparison to their US counterparts. EU labels are treated in the US in the same way as their American competitors, which, in turn, are treated as European labels in the EU. Quite apart from this, all the “majors” are US labels; therefore any term extension would disproportionately benefit US firms to the detriment of EU consumers.

(5) In specific connection with the issue of the assessment of the costs the legislative measure would involve, the argument advanced by the Commission whereby the term extension would not entail additional costs, as a survey has shown that the price of in copyright music does not exceed the cost of music out of copyright, is disingenuous and self-contradictory. In its Explanatory Memorandum, the Commission mentions that the term extension would generate additional income for phonogram producers in the range of over Euro 750 million. Now, it would appear that it is impossible that additional income accrues to one group of beneficiaries, if nobody pays for it. Indeed, the cost of the term extension for consumers would be in the same order of magnitude (around Euro 1 billion).

Overall, it is clear that the proposed measures fail to reach each and all of their intended goals, hence the term extension, from 50 to 70 years, will harm Europe's culture and economy.

Objections and Critiques

(1) The term extension may be the only hope of a decent leaving for old performers.

Answer. As it has been already discussed, the proposal fails to provide for convincing mechanisms guaranteeing that any additional income will effectively accrue to the pockets of performers, since they lack bargaining power vis-à-vis the labels. This shortcoming can be solved only by mandatory provisions reserving a share of the overall proceeds deriving from a given performance to the benefit of performers themselves, e.g. by means of some form of ‘equitable remuneration’.

Moreover, the term extension may not offer a chance to redistribute from young to old artists (a characteristic that could be desirable in a system aiming at saving “retired” performers from poverty): instead, it may actually redistribute from the living to the dead artists, that is from actual creators to the estates of dead creators. In order to avoid that, at least, the term extension should be limited to the duration of performers' life.

(2) The Commission claims that consumer prices are not going to rise and that there is empirical evidence confirming this expectation.

Answer. There is indeed an empirical study that concluded that there was no systematic difference between prices of in-copyright and out-of copyright sound recordings.^[11] However, the absence of a statistically significant difference between the prices of in-copyright and out-of copyright sound recordings in that study may be an effect of the limited set of available data. Moreover, this study, prepared for the British  Phonographic Industry, may hardly be seen as an independent analysis. In fact, a major analysis of the scope and nature of the public domain in Europe currently performed by Rightscom for the European Commission seem to confirm that richer datasets show clear evidence of the impact on prices of performer's rights [forthcoming: the study will be quoted in the final version of the recommendation].

(3)        Both under the new term and under the current term of protection, the majority of the recordings from the '60s would not really enter into the public domain, since their authors' copyright would still be in place. Hence, the expiration of related rights would impoverish performers, but one can expect little or no impact on prices for final users.

Answer. Indeed, under current rules, most copyright protected works would keep enjoying protection even though no term extension is granted. Typically the expiry of the current 50 years term for the protection of performers' and phonogram producers' right would bring into the public domain von Karajan’s performances of Beethoven, not Beatles' songs. The latter still enjoy copyright protection; most of the times classical music does not. This means that, if the current situation were to remain unchanged, the dissemination of a sizeable chunk of non-classical music by means of CD, DVDs or digital tracks as distributed through i-stores would in the near future require consent only from copyright holders (i.e. authors of music and lyrics; their heirs and assigns such as music publishers; collecting societies) to the exclusion of holders of performers’ and phonogram producers’ rights. This might lead to a benefit for the public, as economic theory predicts that the costs for end users tend to go up, when dissemination requires the authorisation of multiple categories of rightholders.

That the public would benefit from the confirmation of the current set of legal rules is not an unlikely proposition, if one considers that, in digital distribution, out of the typical 99 cents paid by end users to i-Tunes, 30 go to i-Tunes itself, 14 to authors and all the other 55 flow to labels. This means that the expiry of the final term of protection of neighbouring rights may entail a remarkable promise in specific connection with digital distribution.

(4)        We should take into account the effect of new technologies (in particular of the Internet) on the music industry: they are suffering from illegal peer-to-peer file sharing and the like and should be compensated!

Answer. Apart from the fact that it is hard to see how the extension of the term may in any way deter illegal distribution of music, the recording industry was quick enough to increase its legal prerogatives in connection with the legislative changes which accompanied the digital revolution. Phonogram producers, as such and as assignees of performers, successfully bargained for the legislative grant of a new exclusive right, the right of making available interactively performed and fixated works (Art. 3(2) of Directive 29/2001). This result was obtained at a time in which collecting societies  representing authors had reasons to question whether their mandate from rightholders also extended to this interactive feature. This was by itself a quite remarkable power shift to the advantage of the labels. This does not however mean that the power shift should also extend to the term of protection and that labels should thereby be put in a position to stake claims also for a time horizon in which, under current rules, all exclusive rights are due to concentrate in the hands of the authors and of their successors and assigns.

In reviewing this policy recommendations, the European Commission, the Parliament and the governments of member states of the European Union should

(i) consider that any change to the scope of copyright protection, including any expansion of exclusive rights or right to remuneration, needs to take into account, and possibly measure and quantify, the effects on the Public Domain; and

(ii) consider carefully the independent evidence against copyright term extension. The following independent studies commissioned by Member States, by the European Commission or undertaken by independent research centres recommended against any extension of the term of protection for sound recordings. The list includes statements and letters from European academics.

1. Gowers Review of Intellectual Property: Included commissioned review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings (2006), Centre for Intellectual Property and Information Law (CIPIL) – http://www.hm-treasury.gov.uk/gowers_review.htm
2. P. Bernt Hugenholtz et al., The Recasting of Copyright & Related Rights for the Knowledge Economy (November 2006) (report to the European Commission, DG Internal Market), available at http://www.ivir.nl/publications/ other/IViR_ Recast_Final_Report_2006.pdf;
3. Professor David Newbery, FBA, University of Cambridge, letter to Commission President Barroso (April 10, 2008);
4. Bournemouth Statement, letter and statement to Commission President Barroso (June 16, 2008), also published as Creativity stifled?, Eur. Intel. Prop. Rev. 341, 341-347 (September 2008), available at http://www.cippm.org.uk/copyright_term.html;
5. Helberger, Duft, Van Gompel, Hugenholz, Never Forever: Why Extending the Term of  Protection of Sound Recordings is a Bad Idea, Eur. Intel. Prop Rev. 174 (2008);
6. Hilty, Kur, Klass, Geiger, Peukert, Drexl, and Katzenberger, Stellungnahme des Max-Planck Instituts für Geistiges Eigentum, Wettbewerbs- und Steuerrecht zum Vorschlag der Kommission für eine Richtlinie zur Änderung der Richtlinie 2006/116 EG des Europäischen Parlaments und des Rates Über die Schutzdauer des Urheberrechts und bestimmter verwandter Schutzrechte, GRUR Int. 907 (2008) [German version]; and Eur. Intel. Prop Rev. 59 (2009) [English version], available at http://www.ip.mpg.de/shared/data/pdf/ stellungnahme-bmj-2008-09-10-def_eng.pdf (10 September 2008).
7. Séverine Dusollier, Les artistes-interprètes pris en otage [Performers taken hostage], Centre de recherche informatique et droit (CRID), Universitaires Notre-Dame de la Paix de Namur, academic version: Auteurs & Media http://www.crid.be/pdf/public/5956.pdf;
8. Stellungnahme zum Vorschlag der Kommission für eine Richtlinie zur Änderung der Richtlinie 2006/116/EG des Europäischen Parlaments und des Rates über die Schutzdauer des Urheberrechts und bestimmter verwandter Schutzrechte, GRUR 38 (2009), available at http://www.grur.de/cms/upload/pdf/stellungnahmen/2008/2008-10-02_GRUR_Stn_RL_2006-116_EG.pdf;
9. Kretschmer, Bently, Pollock, Hilty, Hugenholtz, Academic Joint Statement to MEPs, The Proposed Directive for a Copyright Term Extension – A backward-looking package (October 27, 2008), available at http://www.cippm.org.uk/copyright_term.html;
10. Christophe Geiger, Jérôme Passa and Michel Vivant, La proposition de directive sur l’extension de la durée de certains droits voisins: une remise en cause injustifiée du domaine public [The Directive Proposal on Term Extension of Neighbouring Rights: an Unjustified Challenge of the Public Domain], extracts published in La Semaine Juridique, Edition Générale 2009, Libres propos, act. 46; Full academic version forthcoming in: Propriétés intellectuelles 2009 http://www.cepi.edu;
11. Ricolfi, De Martin, Morando, Cogo, Sciacca, Cordero di Vonzo, and Musone, Presa di Posizione del Centro Nexa su Internet & Societa' del Politecnico di Torino sulla Proposta di Direttiva sull’Estensione dei Termini di Protezione dei Produttori di Fonogrammi e degli Artisti Interpreti ed Esecutori, available at  http://nexa.polito.it/direttivafonogrammi and http://nexa.polito.it/sites/nexa.polito.it/files/ProposedDirective Phonograms-Nexa-statement.pdf;
12. Joint Press Release by European Academics - The Proposed Directive for a Copyright Term Extension (11 March 2009), available at http://www.cippm.org.uk/downloads/Press%20Release%20Copyright%20Extension.pdf.

Relevant Actions to be taken by:

4. European Commission (EC)

1. Withdraw the proposal to extend the term of protection for performers and sound recordings.
2. Initiate a review process that examines the effectiveness of current terms of protection

5. European Parliament (EP)
6. Member States (MS)

3. Withdraw the proposal to extend the term of protection for performers and sound recordings.

---

[The Policy Recommendations # 2 was initially delivered to the Commission on December 17, 2010 as deliverable DPolicy1 – First set of policy recommendations regarding the digital public domain.]

The Commission and Member States should carefully review expert opinions on this topic, as detailed at the end of this recommendation. Term extension will not create additional incentives to create but will make access to large parts of our audiovisual heritage more difficult than it already is. Instead of pursuing this special interest driven legislation the divergence in the length of protection between allotted to performers and authors should be taken as an opportunity to reevaluate the effectiveness of the current term of protection. Such a reevaluation must take into account the COMMUNIA policy recommendations #1 and #8.

Background

In July 2008, the European Commission adopted a proposal (COM(2008) 464/3) intended to extend the term of protection for performers and sound recordings. Currently these rights are protected for 50 years starting from the recording (or “fixation”) or from the performance, as the case may be. According to the proposal, the term would have been extended to 95 years. According to the Commission, the aim of the proposal was to bring performers' protection more in line with that currently available to authors (expiring 70 years after their death). More generally, the extended term was deemed necessary to enable performers to earn a decent income during their lifetime.

In April 2009 the proposal was voted in Parliament, which essentially approved it, with the following main planks: (1) the extension of the term of protection from 50 to 70 years (instead of the proposed 95); (2) the creation of a fund for the benefit of session players amounting to 20% of record labels' offline and online sales revenue coming from the term extension; (3) a “use it or lose it” clause allowing performers to get back control of their rights after 50 years, in cases in which producers are not marketing their recording; and (4) a newly introduced “clean slate” provision, preventing the use of previous contractual agreements to deduct money from the additional royalties granted to performers from the term extension.

Overall, the Parliament reduced the quantitative significance of the term extension (from 45 to 20 years) and slightly reinforced the provisions aimed at ensuring the benefits from the extension could accrue in a significant way to performers. However, these amendments did not substantially address the reasons because of which all the independent studies which examined the term extension proposal came to the conclusion that the proposed measures fail to reach each and all of their intended goals (see below).

That is the case because of several orders of reasons:

(1) The proposal fails to provide for additional income effectively accruing to the pockets of performers, since performers lack bargaining power vis-à-vis their more powerful counterparts, the labels (to which they frequently assign all their rights through so called buy-out agreements). Instead of addressing this issue, Art. 10a of the draft directive still provides that agreements between performers and phonogram producers entered into before the date of the term extension would remain in force, “in the absence of clear contractual  indications to the contrary”.

This conclusion is not affected by the provision whereby a minimum of 20% of the additional proceeds received by phonogram producers would be allocated to a collecting-society managed social fund. This benefit would accrue only to session musicians and, moreover, its calculation method is at best uncertain. The relevant proceeds are the ones generated through the reproduction, distribution and making available of the performances, with the exclusion of the important income deriving as a result of communication to the public (e.g. by radio broadcasting).

(2) The proposal does not even supply any effective incentive to phonogram producers and to labels. This is so for the very fundamental reason that the proposal also applies to existing works and no provision adopted today may provide any incentive towards investments which were already decided and made in the past. Even if we look at the future only, the need for an additional prospective incentive is hardly proved. Indeed, the common intuition whereby digital technology has decreased rather than increased the costs necessary to set up a performance and to fixate it has been confirmed by available empirical evidence [Helberger et al 2008].

(3) The Commission explicitly relates the need for a term extension to the fact that the music industry is suffering from illegal peer-to-peer file sharing and need to be compensated. However, it is hard to see how the extension of the term may in any way deter illegal distribution of music.

(4) The case made by the proposal whereby European label companies should be put on an equal footing with their US counterparts, which recently were granted an extension of terms similar to the one proposed for the EU, is technically flawed and misguided. Indeed, in the field of IP, including in connection with the neighbouring rights here considered, which in the US are described as copyright in sound recordings, the principle of National Treatment applies. Now, as a result of this principle, European labels currently are not in any way disadvantaged in comparison to their US counterparts. EU labels are treated in the US in the same way as their American competitors, which, in turn, are treated as European labels in the EU. Quite apart from this, all the “majors” are US labels; therefore any term extension would disproportionately benefit US firms to the detriment of EU consumers.

(5) In specific connection with the issue of the assessment of the costs the legislative measure would involve, the argument advanced by the Commission whereby the term extension would not entail additional costs, as a survey has shown that the price of in copyright music does not exceed the cost of music out of copyright, is disingenuous and self-contradictory. In its Explanatory Memorandum, the Commission mentions that the term extension would generate additional income for phonogram producers in the range of over Euro 750 million. Now, it would appear that it is impossible that additional income accrues to one group of beneficiaries, if nobody pays for it. Indeed, the cost of the term extension for consumers would be in the same order of magnitude (around Euro 1 billion).

Overall, it is clear that the proposed measures fail to reach each and all of their intended goals, hence the term extension, from 50 to 70 years, will harm Europe's culture and economy.

Objections and Critiques

(1) The term extension may be the only hope of a decent leaving for old performers.

Answer. As it has been already discussed, the proposal fails to provide for convincing mechanisms guaranteeing that any additional income will effectively accrue to the pockets of performers, since they lack bargaining power vis-à-vis the labels. This shortcoming can be solved only by mandatory provisions reserving a share of the overall proceeds deriving from a given performance to the benefit of performers themselves, e.g. by means of some form of ‘equitable remuneration’.

Moreover, the term extension may not offer a chance to redistribute from young to old artists (a characteristic that could be desirable in a system aiming at saving “retired” performers from poverty): instead, it may actually redistribute from the living to the dead artists, that is from actual creators to the estates of dead creators. In order to avoid that, at least, the term extension should be limited to the duration of performers' life.

(2) The Commission claims that consumer prices are not going to rise and that there is empirical evidence confirming this expectation.

Answer. There is indeed an empirical study that concluded that there was no systematic difference between prices of in-copyright and out-of copyright sound recordings.^[11] However, the absence of a statistically significant difference between the prices of in-copyright and out-of copyright sound recordings in that study may be an effect of the limited set of available data. Moreover, this study, prepared for the British  Phonographic Industry, may hardly be seen as an independent analysis. In fact, a major analysis of the scope and nature of the public domain in Europe currently performed by Rightscom for the European Commission seem to confirm that richer datasets show clear evidence of the impact on prices of performer's rights [forthcoming: the study will be quoted in the final version of the recommendation].

(3)        Both under the new term and under the current term of protection, the majority of the recordings from the '60s would not really enter into the public domain, since their authors' copyright would still be in place. Hence, the expiration of related rights would impoverish performers, but one can expect little or no impact on prices for final users.

Answer. Indeed, under current rules, most copyright protected works would keep enjoying protection even though no term extension is granted. Typically the expiry of the current 50 years term for the protection of performers' and phonogram producers' right would bring into the public domain von Karajan’s performances of Beethoven, not Beatles' songs. The latter still enjoy copyright protection; most of the times classical music does not. This means that, if the current situation were to remain unchanged, the dissemination of a sizeable chunk of non-classical music by means of CD, DVDs or digital tracks as distributed through i-stores would in the near future require consent only from copyright holders (i.e. authors of music and lyrics; their heirs and assigns such as music publishers; collecting societies) to the exclusion of holders of performers’ and phonogram producers’ rights. This might lead to a benefit for the public, as economic theory predicts that the costs for end users tend to go up, when dissemination requires the authorisation of multiple categories of rightholders.

That the public would benefit from the confirmation of the current set of legal rules is not an unlikely proposition, if one considers that, in digital distribution, out of the typical 99 cents paid by end users to i-Tunes, 30 go to i-Tunes itself, 14 to authors and all the other 55 flow to labels. This means that the expiry of the final term of protection of neighbouring rights may entail a remarkable promise in specific connection with digital distribution.

(4)        We should take into account the effect of new technologies (in particular of the Internet) on the music industry: they are suffering from illegal peer-to-peer file sharing and the like and should be compensated!

Answer. Apart from the fact that it is hard to see how the extension of the term may in any way deter illegal distribution of music, the recording industry was quick enough to increase its legal prerogatives in connection with the legislative changes which accompanied the digital revolution. Phonogram producers, as such and as assignees of performers, successfully bargained for the legislative grant of a new exclusive right, the right of making available interactively performed and fixated works (Art. 3(2) of Directive 29/2001). This result was obtained at a time in which collecting societies  representing authors had reasons to question whether their mandate from rightholders also extended to this interactive feature. This was by itself a quite remarkable power shift to the advantage of the labels. This does not however mean that the power shift should also extend to the term of protection and that labels should thereby be put in a position to stake claims also for a time horizon in which, under current rules, all exclusive rights are due to concentrate in the hands of the authors and of their successors and assigns.

In reviewing this policy recommendations, the European Commission, the Parliament and the governments of member states of the European Union should

(i) consider that any change to the scope of copyright protection, including any expansion of exclusive rights or right to remuneration, needs to take into account, and possibly measure and quantify, the effects on the Public Domain; and

(ii) consider carefully the independent evidence against copyright term extension. The following independent studies commissioned by Member States, by the European Commission or undertaken by independent research centres recommended against any extension of the term of protection for sound recordings. The list includes statements and letters from European academics.

1. Gowers Review of Intellectual Property: Included commissioned review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings (2006), Centre for Intellectual Property and Information Law (CIPIL) – http://www.hm-treasury.gov.uk/gowers_review.htm
2. P. Bernt Hugenholtz et al., The Recasting of Copyright & Related Rights for the Knowledge Economy (November 2006) (report to the European Commission, DG Internal Market), available at http://www.ivir.nl/publications/ other/IViR_ Recast_Final_Report_2006.pdf;
3. Professor David Newbery, FBA, University of Cambridge, letter to Commission President Barroso (April 10, 2008);
4. Bournemouth Statement, letter and statement to Commission President Barroso (June 16, 2008), also published as Creativity stifled?, Eur. Intel. Prop. Rev. 341, 341-347 (September 2008), available at http://www.cippm.org.uk/copyright_term.html;
5. Helberger, Duft, Van Gompel, Hugenholz, Never Forever: Why Extending the Term of  Protection of Sound Recordings is a Bad Idea, Eur. Intel. Prop Rev. 174 (2008);
6. Hilty, Kur, Klass, Geiger, Peukert, Drexl, and Katzenberger, Stellungnahme des Max-Planck Instituts für Geistiges Eigentum, Wettbewerbs- und Steuerrecht zum Vorschlag der Kommission für eine Richtlinie zur Änderung der Richtlinie 2006/116 EG des Europäischen Parlaments und des Rates Über die Schutzdauer des Urheberrechts und bestimmter verwandter Schutzrechte, GRUR Int. 907 (2008) [German version]; and Eur. Intel. Prop Rev. 59 (2009) [English version], available at http://www.ip.mpg.de/shared/data/pdf/ stellungnahme-bmj-2008-09-10-def_eng.pdf (10 September 2008).
7. Séverine Dusollier, Les artistes-interprètes pris en otage [Performers taken hostage], Centre de recherche informatique et droit (CRID), Universitaires Notre-Dame de la Paix de Namur, academic version: Auteurs & Media http://www.crid.be/pdf/public/5956.pdf;
8. Stellungnahme zum Vorschlag der Kommission für eine Richtlinie zur Änderung der Richtlinie 2006/116/EG des Europäischen Parlaments und des Rates über die Schutzdauer des Urheberrechts und bestimmter verwandter Schutzrechte, GRUR 38 (2009), available at http://www.grur.de/cms/upload/pdf/stellungnahmen/2008/2008-10-02_GRUR_Stn_RL_2006-116_EG.pdf;
9. Kretschmer, Bently, Pollock, Hilty, Hugenholtz, Academic Joint Statement to MEPs, The Proposed Directive for a Copyright Term Extension – A backward-looking package (October 27, 2008), available at http://www.cippm.org.uk/copyright_term.html;
10. Christophe Geiger, Jérôme Passa and Michel Vivant, La proposition de directive sur l’extension de la durée de certains droits voisins: une remise en cause injustifiée du domaine public [The Directive Proposal on Term Extension of Neighbouring Rights: an Unjustified Challenge of the Public Domain], extracts published in La Semaine Juridique, Edition Générale 2009, Libres propos, act. 46; Full academic version forthcoming in: Propriétés intellectuelles 2009 http://www.cepi.edu;
11. Ricolfi, De Martin, Morando, Cogo, Sciacca, Cordero di Vonzo, and Musone, Presa di Posizione del Centro Nexa su Internet & Societa' del Politecnico di Torino sulla Proposta di Direttiva sull’Estensione dei Termini di Protezione dei Produttori di Fonogrammi e degli Artisti Interpreti ed Esecutori, available at  http://nexa.polito.it/direttivafonogrammi and http://nexa.polito.it/sites/nexa.polito.it/files/ProposedDirective Phonograms-Nexa-statement.pdf;
12. Joint Press Release by European Academics - The Proposed Directive for a Copyright Term Extension (11 March 2009), available at http://www.cippm.org.uk/downloads/Press%20Release%20Copyright%20Extension.pdf.

Relevant Actions to be taken by:

4. European Commission (EC)

1. Withdraw the proposal to extend the term of protection for performers and sound recordings.
2. Initiate a review process that examines the effectiveness of current terms of protection

5. European Parliament (EP)
6. Member States (MS)

3. Withdraw the proposal to extend the term of protection for performers and sound recordings.

---

The Public Domain needs to be protected from the adverse effects of Technical Protection Measures. Circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works. The deployment of TPMs to hinder or impede privileged uses of a protected work or access to public domain material must be sanctioned.

(Corresponding to COMMUNIA Policy Recommendation 7 - Download Postcard)

Technical Protection Measures such as Digital Rights Management systems can have adverse effects on the Public Domain. Access restrictions imposed on works can remain in effect even after a work has passed into the public domain and over time Protections Measures can become orphaned making access to protected works impossible. Most current TPM 'solutions' do not take into account user rights created by Exceptions and Limitations thereby limiting their effectiveness and undermining the inherent checks and balances of the copyright system. Given the above, circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works.

Background

The crucial driver of the modern drift towards commodification of the public domain is a mix of technology and legislation. Technology and architecture of control have a central role in the commodification of information, culture, and the public domain. Technology was able to appropriate and fence informational value that was previously unowned and unprotected. That value was appropriated through the adoption of technological protection measures (TPMs) or digital right management (DRM) systems to control access and use of creative works in the digital environment. TPMs served as a tool to empower copyright holders to control any use of copyrighted works, including uses that previously could not be restrained.

The seal on a policy of control was set by the introduction of the so called anti-circumvention provisions. The WIPO Internet Treaties first,^[12] the Digital Millennium Copyright Act in the United States^[13] and the Directive 29/01/EC in Europe later,^[14] enacted provisions aimed to forbid the circumvention of copyright protection systems. In addition, the law banned any technology that may be designed to circumvent technological anti-copy protection measures.

Anti-circumvention provisions may have negative effects both on the structural and the functional public domain. The foremost concern with this legal and technological bundle is that DRM and anti-circumvention provisions, as they are programmed so far, can make copyright perpetual. The legally protected encryption, in fact, would continue after the expiration of the copyright term. Because circumventing tools are illegal, users will be incapable of accessing public domain material fenced behind DRM technologies. The persistence of technological protection measures after the expiration of copyright will impoverish the digital public domain greatly by precluding new works to enter it.

A more subtle point is related to the danger that the architecture of the networks will make the law irrelevant. This change will affect greatly our ecology of creativity and the public domain. In a very obvious way, DRM technologies will affect the public domain by restricting or completely preventing fair dealings, privileged and fair uses. DRM technology cannot make any determination of purpose that is necessary to assess whether a use is privileged or not. In the absence of that determination copyright will be technologically enforced regardless of the fairness of the use, the operation of a copyright exception or limitation, or a private use. It is worth noting that, as long as technological protection measures will prevent the application of exceptions allowing copying in news media and quotations, they may be viewed also as hampering freedom of expression.

As matter of the fact, the pristine wording of the WIPO Internet Treaties stated that sanctions had to be applied to the circumvention of effective technological measures that restrict acts in respect of works of authorship which are not authorized by their authors or permitted by law. Nevertheless, few regional implementations make any specific exceptions to the anti-circumvention provisions when digital rights management technologies restrict acts that are permitted by the law. In particular, European law, as embodied in Art. 6(4) of Directive 2001/29/EC, more narrowly provides that

Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law [ . . . ] the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned.

This is to say that rights holders should make available the means to benefit from copyright exceptions and limitation, fair uses, and fair dealings, but if they do not, any circumvention is still punishable. A team of scholars from the Institute for Information Law at the University of Amsterdam (IViR) has noted that “for even if article 6(4) creates an obligation to provide the means to exercise a limitation, this obligation is imposed on rights owners and does not give users any authority to perform acts of circumvention themselves.” Circumventing a digital right management technology that restricts acts permitted by the law is a civil wrong, and perhaps a crime, as such. This conclusion is supported by the preparatory works that introduced the Directive 2001/29/EC and the definition of technological measures. The Council made clear that

Art. 6(1) protects against circumvention of all technological measures designed to prevent or restrict acts not authorized by the rightholder, regardless of whether the person performing the circumvention is a beneficiary of one of the exceptions provided for in Article 5.^[15]

Further, according to paragraph 4 of Art. 6(4) of Directive 2001/29/EC, the obligation of the rights holder, and Member States, to provide users with the means to exercise exceptions and limitations against TPMs, “shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.” Given that Recital 53 of the Directive 2001/29/EC specifically excludes “non-interactive forms of online use” from this last provision, the obligation to provide users with the means to exercise exceptions and limitations against TPMs shall not apply to any work transmitted “on demand” over the Internet.

Additionally, the open-ended nature of the Information Society Directive exceptions and limitations regime further concerns users in terms of lack of legal certainty. Article 5 of the Directive 2001/29/EC provides mostly for optional limitations and grant the Member States ample discretion on how implement the limitations. As foreseeable, this regime has led to dissonant implementations in the Member States.  In particular, Article 5(2) c) of the Directive 2001/29/EC, permitting specific acts of reproduction by public libraries and archives, has been transposed inconsistently throughout the European Union. Some countries have applied the limitation for purposes of preservation and restoration to all types of works. Some other countries have restricted the limitation to specific works. Finally, other countries have not implemented the limitation at all. Such a diverse legal framework is an hindrance to digitization projects by heightening the level of legal uncertainty and the consequential transaction costs. To this regard, Professor Lucie Guibault has noted at the 1st COMMUNIA Conference that

All in all, the regime of limitations and technological protection measures established by the Information Society Directive does not appear to offer the necessary legal certainty to support the deployment of a cross-border European library project as advocated in the Recommendation on the digitisation and online accessibility of cultural material and digital preservation. It is fair to conclude that the goals of the Information Society Directive are not compatible with those of the Recommendation on digitisation and accessibility of material.^[16]

Proposals

The described legal framework is at odds with users prerogatives as well as the public interest to preserve and exploit European cultural heritage. Those tensions need to be redressed as a matter of urgency, especially in light of their long standing inclusion in the European agenda for the information society. In 2005, the i2010 strategy already prioritized the issue of TPMs by providing that “the Commission will also seek to establish a comprehensive approach for effective and interoperable digital rights management.” Effective and inter-operable digital rights management should necessarily take into proper account the characteristics of the digital public domain and users’ prerogatives.

Preliminary, it is worth noting that the European protection against circumvention activities goes further than any other international legislation. It is the only legislation that does not require an express link to copyright infringement and prohibits acts of circumvention of both access control and copy control mechanisms. Therefore, firstly, following the requirements of the WIPO Internet Treaties, any comprehensive approach related to digital right management should redress this extreme approach of the European legislation by précising that

1. (i) acts of circumvention are prohibited only in circumstances where there is an express link between circumvention and copyright infringement; and
2. (ii) the prohibition on commercial dealing in circumventing devices applies only if those commercial dealings constitute preparatory acts of circumvention that results in copyright infringement.

In general terms, to protect the public domain against the adverse effect of TPMs, there are two options: either (i) legalizing circumventions to exercise users’ rights and use public domain works or (ii) outlawing TPMs that restrict public domain and privileged uses. Indeed, the optimal solution to strengthen the public domain and protect users’ prerogatives, would be to adopt both measures by legalizing “good” circumvention and outlawing “bad” TPMs. Implementing both measures would be advisable because circumventing TPMs is, however, an action entailing some degree of technological literacy. Absent a positive protection against structural and functional public domain enclosure operated by TPMs, the large majority of the users will be left without an effective redress. TPMs will prevent in practice privileged uses and access to public domain works to all those users short of the required technical literacy to circumvent TPMs. The fact that circumvention is lawful is of no avail if sanctions are not in place to discourage private parties from fencing the public domain and making extremely burdensome for the users to access it.

In this regard, COMMUNIA draws attention to other jurisdictions that are taking seriously the impact of DRM on the public domain and are arranging the necessary countermeasures. Europe should not lag behind. A recent proposed update to Brazilian copyright law is aimed to assure that technological protection measures have time limited effects that will not surpass the expiration of copyrights over the work and do not hinder or impede fair or privileged uses of a protected work. To foster this goal, the new proposed legislation shall allow the circumvention of DRM technologies to make fair or privileged uses of a work or in cases where the copyright has expired.^[17] Further, the proposal establishes sanctions for hindering or preventing the users from exercising their fair dealing prerogatives, through whatever means, thus including DRM technologies.^[18] 

On a final note, further action to be undertaken to protect the public domain against TPMs may entail the harmonization of the observatory bodies monitoring the use of TPMs.^[19] Several European Member States have implemented the obligation provided by Art. 6(4) of the Directive 2002/29/EC by setting up observatories to provide individual redress in case TPMs prevented the exercise of a limitation or exception on copyright and related rights. Since the diversity, or the absence all together in some jurisdictions, of these monitoring bodies has disharmonizing effects, one option would be to set up a pan-European observatory body in the area of TPMs and copyright. However, more analysis is needed to determine the powers that may be attributed to the pan-European observatory body and whether it should co-exist with the national bodies.

Relevant Actions to Be Taken by:

20. European Commission (EC)

1. Propose legislation to allow the circumvention of TPMs when exercising user rights created by Exceptions and Limitations or when using Public Domain works.
2. Propose legislation to positively protect the public domain by sanctioning the use of TPMs that prevent user’s fair dealing or the use of public domain material
3. Harmonize TPMs monitoring bodies by setting a pan-European observatory body

21. European Parliament (EP)

4. to allow the circumvention of TPMs when exercising user rights created by Exceptions and Limitations or when using Public Domain works.
5. Amend the Directive 2001/29/EC or enact new legislation to positively protect the public domain by sanctioning the use of TPMs that prevent user’s fair dealing or the use of public domain material

22. Member States (MS)

6. Amend national legislations to allow the circumvention of TPMs when exercising user rights created by Exceptions and Limitations or when using Public Domain works.
7. Propose legislation to positively protect the public domain by sanctioning the use of TPMs that prevent user’s fair dealing or the use of public domain material

23.  (CHI)

1. Refrain from using TPMs that limit access to Public Domain works.
2. Make available the means of benefitting from exceptions and limitations

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In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only get moral rights protection.

(Corresponding to COMMUNIA Policy Recommendation 8 - Download Postcard)

One of the unintended consequences of the near universal access to electronic publishing platforms is an increase in the amount of works that are awarded copyright protection even though their authors do not require or desire this protection. This extension of protection threatens to undermine the value and effectiveness of protection for works where copyright protection is necessary and desired. Given the above full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only be granted moral rights protection. This recommendation requires the introduction of a registration system. Such a system needs to be accessible and transparent.

Background

In the field of copyright, the current default level of protection is “all rights reserved” for the maximum possible duration allowed by the law. No formalities are required, not even a statement that a certain work is copyright protected. This “copyright default rule” automatically reserving all rights to the author has been generalised thanks to the Berne Convention and the TRIPS Agreements.

Information and communication technologies – and the Internet in particular – make everybody a potential author and self-publisher. Instead of following the traditional “long route,” passing through several professional intermediaries, new authors are able to reach the public directly or through new “lightweight” service providers. The revolution represented by the so-called Web 2.0 makes the phenomenon of authors publishing through new “short routes” even more significant. Users generate a growing percentage of creative material and the distinction between authors and their audience becomes increasingly blurred.^[20] Additionally, creating by remixing existing works becomes increasingly common and socially valuable, thanks to new technologies.^[21]

In such a setting, in order to make possible many of the most productive forms of distributed and incremental creation enabled by information and communications technologies (e.g. wiki websites), thousands of authors should understand the complex working of current copyright law and of copyright licenses. In fact, in absence of any licensing, intellectual creations cannot be reproduced or altered in any way. However, there are transaction costs associated to the understanding of copyright licenses. Moreover, these transaction costs concern both authors and their readers/users. The latter are affected in two ways: as potential authors, since they have difficulties in understanding what they can and cannot do; and as simple users/readers, since they cannot legally share/archive freely accessible online material without asking for permission.

Additionally, a significant amount of new authors publishing over the Internet does not need all the exclusive rights provided by copyright and it is almost undisputed amongst economists that granting an unnecessary exclusive right reduces social welfare.

Indeed, more and more new authors recognize that this situation is suboptimal and see the benefits of more open and sharing oriented approaches. Hence, the use of open licenses is quantitatively significant and growing. For instance, in November 2009, the Creative Commons Monitor project calculated that more than 207 million Web pages has been licensed under some Creative Commons Public License. Moreover, a single service provider specialized in pictures, Flickr, offers more than 120 million pictures under open copyright licenses and Wikipedia, the free online encyclopedia, offers more than 3,175,000 articles in English, more than 1 million in German, etc.

That said, and despite the success of open licenses and their promotions through communities and social networks, the majority of creators remain (and probably will remain) unaware of copyright related issues. This locks-in a huge amount of intellectual creations because of the “all rights reserved” default rule provided by the existing copyright regime.

As suggested by some scholars, a potential solution to the weaknesses of  the current copyright regime would be a setting in which published works are not copyrighted, unless the authors comply with some formalities which should be very simple, cheap and non-discriminatory with respect to national/foreign authors.^[22] With the principal aim of preventing unnecessary protection, the Copyright 2.0 proposal is a specific articulation of such an alternative copyright default rule. The proposal was first presented at the 2nd COMMUNIA Conference by Professor Marco Ricolfi.^[23]

Proposal

Change the existing default level of copyright protection (i.e. Adopt Copyright 2.0). “Copyright 2.0” identifies a new kind of copyright having the basic features detailed below.

(1) Traditional copyright, or Copyright 1.0, is still available.

(2) In order to be enjoyed, Copyright 1.0 has to be claimed by the creator at the onset, e.g. by inserting a copyright notice, such as ©, as done by the United States before accessing the Berne Convention:

24. copyright 1.0 should be claimed before the first publication of a work;
25. at certain conditions, the Copyright 1.0 notice could also be added after the first publication (possibly during a specified and short grace period, e.g. one year)

1. to minimize transaction costs, late notices should only have the effect of giving exclusivity against certain classes of unauthorized uses, especially commercial uses;
2. the effect of a late notice would be similar to the one currently achieved by a Creative Commons (CC) NonCommercial license, such as CC BY-NC.

(3) If no notice is given, Copyright 2.0 applies and this gives creators mainly one right, the right to attribution:

26. the “default” legal status of creative works could be similar to the one of works licensed under a (CC) Attribution (BY) public license;
27. the attribution requirement should impose the minimum possible burden on subsequent creators, taking into account the specificities of digital distributed and incremental creation;
28. the possibility of reserving some more rights to authors under Copyright 2.0 is worth exploring, if this significantly decreases the likelihood that Copyright 1.0 is chosen by a large proportion of authors:

1. the Commission should fund empirical studies and surveys to determine the minimum set of rights that authors publishing over the Internet want/need to reserve to themselves;
2. in any case, non-commercial uses should always be allowed, including for remixing purposes (i.e. to create derivative works): hence, the default legal status of works under Copyright 2.0 could be similar to a CC BY-NC license.

(4) The Copyright 1.0 protection given by the original notice is deemed withdrawn after a specified period of time (e.g. the 14 years of the original copyright protection), unless an extension period (e.g. of another 14 years or longer) is formally requested:

29. in order to reduce transaction costs and ease the problem of orphan works, the extension request must be entered in a copyright register kept by an authority of some kind;
30. the registration procedure should be accessible from the Internet and the main registration data should be freely accessible over the Internet.

The idea of a registration system for creative works is increasingly gaining momentum. The establishment of a voluntary register of copyright is endorsed also by the Gowers Review.^[24] Today, technological advancement is making easier to set up an efficient registration system for creative works. State-of-the art technology enables the creation of global digital repositories that ensure the integrity of the digital works and the identity of the person or entity claiming  copyright. Concurrently, modern technology renders the corresponding filings user-friendly and inexpensive.

Two options may be available in implementing a registration system. Firstly, registration could be set as a precondition for protection. In this scenario registration will function as a legal tool as well as a technical tool.^[25] As a legal tool, registration would provide the creator of a work with the full enjoyment of ownership rights. In contrast, absent registration, the default level of protection would be limited to moral rights, as described earlier. As a technical tool, registration will enable searches on the status of any creative work. Alternatively, if one were to consider that making registration into a global registry, rather than notice, a precondition for protection, is too harsh a requirement, then registration might at least be required as a precondition of extension of protection.

The need to develop open standards for copyright registries interoperability has been also discussed in connection with COMMUNIA meetings. In particular, some efforts to propel the discussion over interoperability of copyright registries have been achieved at the 3rd Creative Commons Technology Summit that was conducted in parallel to the 2nd COMMUNIA conference in Turin.^[26] As a related project, the Open Standards for Copyright Registries Interoperability Group (OSCRI) was set up as a “platform for the study and development of standardisation rules and protocols in the copyright field, with the main aim of creating a scenario where all copyright registries are compatible between each other.”^[27] Commercial enterprises that were members in the COMMUNIA project, which are already offering copyright registries to clients in the creative industry sector, are working towards the goal of interoperability. An open standard and open metadata would allow also private parties to manage the registration process and offer search services, as an additional governance options to public authorities or monopolies for running registries.

 Theoretically, the introduction of any kind of formalities to enjoy copyright protection may require an amendment of the Berne Convention. Likewise, consent of state members would be required under Art. 9 of TRIPs.

Objections and Critiques

(1) We survived until now with the “all rights reserved” copyright default, why should we change?

Answer – The desirability of a “no formalities” approach has been dramatically reduced by the growing importance of intellectual creations directly published by their authors typically over the Internet.

(2) The proposed approach may be appropriate or neutral for amateurs publishing over the Internet, but it creates additional costs for professional authors and their publishers or intermediaries. What guarantees that the net effect is positive for the society?

Answer – Insofar the only formality to receive the current standard of full protection for one’s published works is explicitly to state “© Copyright: all rights reserved”, no author is likely to have her incentives lowered by such “formality”. In particular, many professional authors and firms active in the field of copyrighted work production should not even change the copyright notice they are already using.

(3) You are saying that several authors are already adopting open copyright licenses: why should the legislator intervene, if “the market” is already taking care of this issue?

Answer – Some authors are aware of the fact that using open licensing schemes is not only in the best interest of society as a whole, but also in their own best interest as individuals. However, in order to “opt out” of the current copyright default rule, authors publishing over the Internet need to incur useless transaction costs. In fact, in order to reap the full benefit of the possibilities offered by the digital online environment, not only authors, but also all the readers/users (who are also potential subsequent authors) should become aware of the working of copyright and of open licensing schemes. In this setting, changing the current default rule entails lower costs for society (see also the answer 4).

(4) The proposed approach just shifts costs between non-professional and professional creators.

Answer – Even if the cost of “opting out” from the new Copyright 2.0 default rule were the same for each user as the cost of opting out from Copyright 1.0 (and this is not the case: see answer 2), making professional authors explicitly deviating from the (new) Copyright 2.0 default rule would be more efficient, since traditional (i.e. following the “long route”) professional authors/intermediaries are a minority (in absolute quantitative terms) of publishing authors (considering all the authors publishing through the Internet).

(5) If many authors are already publishing on the Internet and they are not even aware of holding copyright over their creations, why should we bother changing the existing default rule for copyright protection? They will not complain in any case, as they do not even know/care about their rights.

Answer – This critique is not conclusive, since – ex post – the same authors could understand that “their rights have been violated” and – for opportunistic reasons or as a “matter of principle” – this could create an incentive to litigate. In other words, the existence of an “all rights reserved” default level of protection creates scope for significant transaction costs and increases the likelihood of litigations. In particular, this situation may discourage any professional reuse of creations which are freely accessible over the Internet (Morando 2010). This situation is similar to the one preventing the effective reuse of orphan works (Brito & Dooling 2005).

Relevant Actions to Be Taken by:

31. European Commission (EC)

1. Introduce legislation that reserves full copyright protection for works that have been registered by their authors
2. Set up a pan-European registration system for works or authorship and related rights.

32. European Parliament (EP)

3. Introduce legislation that reserves full copyright protection for works that have been registered by their authors

33. Member States (MS)

4. Introduce legislation that reserves full copyright protection for works that have been registered by their authors

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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.

(Corresponding to COMMUNIA Policy Recommendation 9 - Download Postcard)

The orphan works problem is in urgent need of a solution that unlocks the benefits of access to these works. Across Europe digitization projects are undertaken that produce large quantities of digitized versions of orphan works that are not available to the general public. Neither the authors nor the general public benefit from the orphan work status of these works. Since most mass digitization projects are undertaken by publicly funded memory institution any 'solution' for this problem that includes a diligent search requirement amounts to large scale waste of public resources. Instead of establishing diligent search guidelines mandatory exceptions and extended collective licensing in combination with a guarantee fund need to be explored to allow for the non-commercial dissemination of orphan works.

Background

Orphan works are those whose rightsholders cannot be identified or located and, thus, whose rights cannot be cleared. At the EU level, two major consultations were organized to define the actual size of the orphan works problem.^[28] The consultations indicated that the issue is perceived by several audiovisual and cultural institutions as a real and legitimate problem. In any event, neither of these consultations has generated firm quantitative data. According to a recent study published by the European Commission (“Vuopala Study”), a conservative estimate puts the number of orphan books in Europe at 3 million.^[29] However, some estimates put the number of orphan woks well over forty per cent of all creative works in existence.^[30] Another recent study has calculated volumes of Orphan Works in collections across the UK’s public sector well in excess of 50 million.^[31] For certain specific works as photographs, the volumes of orphan works seem to increase. The Gowers Review of Intellectual Property claims that from the total collection of photographs of 70 institutions in the UK, around 19 million, the percentage of photographs where the author is known, other than for fine art photographs, is 10 per cent.^[32]

Publishers, film makers, museums, libraries, universities, and private citizens worldwide face daily insurmountable hurdles in managing risk and liability when a copyright owner cannot be identified or located. Too often, the sole option left is a silent unconditional surrender to the intricacies of copyright law. Many historically significant and sensitive records will never reach the public. Society at large is being precluded from fostering enhanced understanding. Daily, steadily, small missing pieces of information prevent the completion of the puzzle of life. The Vuopala Study shows, then, even higher percentage for other categories of works, especially among photographs, and audiovisual works. In addition, the report shows cumbersome transaction costs in the right clearance process. Besides the material costs of clearing rights, the transaction costs of the clearing process are extraordinarily augmented by the resources needed. Absent efficient sources of rights information, the clearing process can take from several months to several years. In many instances the cost of clearing rights may amount to several times the digitization costs.

The cultural outrage of orphan works is a by-product of copyright expansion, retroactive effect of some copyright legislation, and intricacies of copyright law. As a consequence of copyright temporal extension many works that have been out of print for decades may still be under copyright protection. The long out-of-print status of copyrighted work makes more and more difficult to retrieve the necessary data to clear rights in others’ works. In case of highly perishable cultural artifact, such as audio and video recordings, the tragedy for our cultural heritage is even more substantial because old works with great historical value will root away and will be lost forever.

A study from the Institute for Information Law at Amsterdam University (IViR) has identified the  increased interest in the issue of orphan works in the following factors: (1) the expansion of the traditional domain of copyright and related rights, (2) the challenge of clearing the rights of all the works included in a derivative works, (3) the transferability of copyright and related rights, and (4) the territorial nature of copyright and related rights. In particular, in Europe the problem gets further tangled up by the difficulty to know whether the duration of protection has expired. The complicacies related to copyright term extensions, such as war extensions, blur the contours of the public domain, therefore making more uncertain and costly any attempt of clearing copyrights. This is a further intricacy burdening the clearance of so called “orphan works” in Europe.

However, the exact dimension of the orphan works problem can be only conveyed by looking at the relation with digitization projects. The unfulfilled potentials of digitization projects worsen the cultural outrage of orphan works in terms of loss of opportunities and value that may be extracted from the public domain. If the temporal extension of copyright has exacerbated and augmented the dimension of the orphan works problem, only the acquired capacity of digitizing our entire cultural heritage has fully unveiled the immense loss of social value that orphan works may cause. The Vuopala Study strongly supports this conclusion. The study gathered responses from twenty-two institutions involved in the digitization of works. The high number of orphan works together with high transaction costs may represent an overwhelming burden for several digitization projects.  The study concludes that a title by title rights clearance can be prohibitively costly and complex for many institutions. The enhanced capacity of digitization and Internet distribution to unlock the humanities’ riches has been urging a solution to the orphan works problem and a more efficient rights clearing process. The relevant social value of digitization of our cultural heritage in terms of openness and accessibility may be potentially vanished by copyright strictures. So far, groundbreaking technological advancement, which could open our society up to unprecedented cultural exposure, is hindered by an outmoded legal framework.

The European institutions are aware of the potential loss of social and economic value if the orphan works problem remains unsolved. As the Commission noted, “there is a risk that a significant portion of orphan works cannot be incorporated into mass-scale digitisation and heritage preservation efforts such as Europeana or similar projects.”^[33] Digitization of the European cultural heritage and digital libraries are key aspects of the i2010 strategy and the recently implemented Digital Agenda of the European Union. Therefore, the necessity to resolve once for all the hindrance that orphan works represent for digitization projects is now on top of the European agenda. To deal with the economic, legal and technological issues raised by the i2010 strategy, the EU Commission published a Recommendation^[34]  and set up a High Level Expert Group on the European Digital Libraries Initiative (“HLEG”). The Recommendation and the HLEG tackled the key challenges of digital preservation, web harvesting, orphan works and out of print works. The Copyright Subgroup of the HLEG unanimously concluded that a solution to the issue of orphan works is desirable, at least for literary and audiovisual works.^[35] 

Proposals

A solution for the orphan works problem should be investigated across few different co-ordinates: harmonization and mutual recognition of the status of orphan works at the national, regional and international level, registries or networks of information to facilitate the identification of rightholders, and the implementation of other tools including mandatory exceptions, extended collective licences or guarantee funds.

Harmonization and mutual recognition are the first goal to be achieved. Séverine Dusollier argues in a similar fashion in the Scoping Study on Copyright and Related Rights and The Public Domain prepared for the Word Intellectual Property Organization:

[th]e issue of orphan works should be dealt with at the international level or at least, a mutual recognition of the status of the orphan work applied in one country should be recognized by other Parties to the Berne Convention (except when identification or location of the author can be solved in this other country). WIPO should also help to set up networks of information about works in order to facilitate the identification of authors of orphan works.  This would clarify the protected or unprotected status of orphan works.^[36]

A very similar position is shared by the HLEG as summed up by Professor Marco Ricolfi, chairman of the High Level Expert Group on the European Digital Libraries initiative and COMMUNIA member, at the 1st COMMUNIA Conference. Speaking of the Report delivered by the HLEG, Professor Ricolfi noted that

[f]irst, it was assumed that a minimum of harmonisation is required between the rules concerning clearance of orphan works applicable in the 27 different Member States. This harmonisation should particularly concern the issue of establishing what are the relevant diligent search criteria for each sector. Second, it was noted that under EU law minimum harmonisation usually leads to mutual recognition. Indeed, once the basic rules to determine what is due diligence in the search of rightholders of orphan works are established, what is deemed acceptable in one Member State should be held to be correspondingly acceptable in all the other Member States, or, in other words, should have cross-border effect. [ . . . ] Third, the consequences of compliance with due diligence guidelines should be established at Member States’ level. The mechanisms may again vary from one Member State to the other. One Member State may consider resorting to extended collective licenses (ECL). [ . . . ] Of course, other Member States might adopt different mechanisms [ . . . ] In either case, what is important is that an orphan work which gets the green light under any of these mechanisms in any Member State should also be considered cleared in all the other 26 Member States. [ . . . ] EU law does indeed come into the picture; but only to the extent it resorts to the time honoured “minimum harmonisation-mutual recognition” principle to give EU-wide interoperability to solutions in all other respects based only on a combination of contractual arrangements and Member States legislation.^[37]

A solution to the orphan works problem encompasses also new modes of collecting data to facilitate the identification of rightholders. Many projects aim at (i) increasing supply of rights management information to the public, (ii) developing converging and unique sources of information, (iii) establishing specific databases for orphan works. The project ARROW (Accessible Registries of Rights Information and Orphan Works), http://www.arrow-net.eu, is a notable European example. The project includes national libraries, publishers, writers’ organisations and collective management organisations and aspires at finding ways to identify rightholders and rights, clear the status of a work, or possibly acknowledge the public domain status of a work in Europe. ARROW aims in particular to support the European Community i2010 Digital Library Project and Europeana. The project is expected to scale up in order to cover all the print material, textual and non-textual, and afterwards also photographic and audiovisual works.^[38] 

Proposals to create either an European register of works or a network of registries will help minimizing the orphan works problem as well. The implementation of some sort of copyright registry is endorsed by COMMUNIA  policy Recommendation # 8.

The implementation of a system of diligent search is advocated by institutional proposal both in Europe and the United States. In particular, the HLEG has made the following recommendation to tackle the orphan works problem:

Member States are encouraged to establish a mechanism to enable the use of such works for non-commercial and commercial purposes, against agreed terms and remuneration, when applicable, if diligent search in the country of origin prior to the use of the works has been performed in trying to identify the work and/or locate the rightholders.^[39] 

The mechanisms in the Member States need to fulfil prescribed criteria: (i) the solution should be applicable to all kinds of works; (ii) a bona fide/good faith user needs to conduct a diligent search prior to the use of the work in the country of origin; (iii) best practices or guidelines specific to particular categories of works can be devised by stakeholders in different fields. The system should be based on a reciprocity so that Member States will recognise solutions in other Member States that fulfil the prescribed criteria. As a result, material that can be lawfully used in one Member State would also be lawfully used in another.

The HLEG has also godfathered a Memorandum of Understanding on Orphan Works, a form of self-regulation subscribed by 27 stakeholders’ organisations representing European right holders and cultural institutions. They agreed to observe a set of diligence guidelines when searching for rightholders, and that a work can only  be considered orphan if the relevant criteria, including the documentation of the process, have been followed without finding the rightholders.

However, the solution proposed by the Commission is tailor-made for achieving the cross-border effect needed in the Digital Libraries’ Initiative. Most likely, the measure would be a far less efficient solution if applied to the orphan works problem at large, especially the individual re-use of orphan works. To that end other solutions should be investigated and evaluated. In any event, as indicated by the HLEG, the mechanism to enable the use of orphan works for commercial and non-commercial purposes should be established at the Member States’ level. The chosen mechanism may vary from one Member State to the other but clearance in one Member State will extend to all the Members of the European Union. To that end, EU law should step in only to set up a principle of mutual recognition and minimum harmonization to national solutions.

As a possible solution, COMMUNIA would firstly look into extended collective licensing and mandatory exceptions, both tied to a guarantee fund.

Extended collective licenses are applied in various sectors in Denmark, Finland, Norway, Sweden and Iceland with the following basic characteristics.

(1) The system combines the voluntary transfer of rights from rightholders to a collective society with the legal extension of the collective agreement to third parties who are not members of the collective society. However, to be extended to third parties of the same category, the collective society must represent a substantial number of rightholders.

(2) In any event, the legislation in Nordic countries provides the rightholders with the option of claiming individual remuneration or opting out from the system.

(3) Therefore, with the exceptions of the rightholders who opted out, the extended collective licence automatically applies to (i) all domestic and foreign rights owners, (ii) deceased rights holders, in particular where estates have yet to be arranged, and (iii) unknown or untraceable rights holders.

(4) A user may obtain a licence to use all the works included in a certain category with the only exception of the opted out works. Re-users of existing works will achieve the legal certainty that all the orphan works will be covered by the licence, also in consideration of the fact that opted out works instantly cease to be orphan.

The introduction of a mandatory exception for orphan works is an alternative solution for the orphan works problem. The most comprehensive proposal for an exception to copyright to permit the use of an orphan works has been outlined in a paper for the Gowers Review by the British Screen Advisory Committee (BSAC). ^[40] This proposal would set up a compensatory liability regime.

(1) Preliminary, to the end of triggering the exception: (i) a person is requested to have made ‘best endeavours’ to  trace the copyright owner of a work; supposedly ‘best endeavours’ will be judged against the particular circumstances of each case; (ii) the work has to be marked as used under the exception to alert any potential rights owners.

(2) If a right owner emerges, (i) he is entitled to claim a ‘reasonable royalty’ to be agreed by negotiation, rather than sue for infringement; if the parties cannot reach agreement, a third party should step in to establish the amount to be paid; (ii) the terms of use of the formerly orphan work would need to be negotiated between the user and the rights owner in the usual way.

(3) However, users should be allowed to continue using the work that has been integrated or transformed into a derivative work, provided payment of the reasonable royalty and sufficient attribution.

It is worth noting that Article 5 of the EU Copyright Directive, which has harmonized limitations and exceptions in all Member States of the EU, should be amended to allow this type of exception.  

Finally, a guarantee fund may be combined with the above mentioned solutions.

Relevant Actions to be taken by:

34. European Commission (EC)

1. Propose a directive for access to orphan works that will set up a principle of mutual recognition and minimum harmonization to national solutions to orphan works

35. European Parliament (EP)

2. Enact a directive for access to orphan works that will set up a principle of mutual recognition and minimum harmonization to national solutions to orphan works

36. Member States (MS)

1. Enact legislation to make extended collective licences enforceable erga omnes.

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Access to copyright protected works for education and research purposes must be facilitated by strengthening existing exceptions and limitations and broadening them to cover uses outside of formal educational institutions. All publicly funded research output and educational resources must be made available as open access materials.

(Corresponding to COMMUNIA Policy Recommendation 12 - Download Postcard)

The current exceptions and limitations intended to promote education and research activities assume that such activities are carried out within dedicated educational or research institutions. Pervasive access to the Internet and policy objectives like lifelong learning mean that growing parts of learning and research are taking place outside of such institutions. The exceptions and limitations intended to promote education and research need to take this reality into account and need to be broadened to facilitate all educational and research activities regardless of their institutional settings. In addition all publicly funded educational materials as well as publicly funded research output should be available without restrictions on its reuse. What has been paid for by the public must be available to the public.

Background

The COMMUNIA action has been putting a lot of emphasis on access to knowledge (A2K) and open access to education and research resources. To that end, the COMMUNIA Working Group 1 has been devoted to the investigation of the role of the public domain for education and scientific research. The COMMUNIA WG1 has noted:

Education and science are at the core of modern knowledge based societies. The information technologies have created new opportunities in making the scientific and educational materials and publications available to the society as a whole, through universities as well as both formal and informal life-long learning. A robust Public Domain - that includes the structural Public Domain, voluntary commons and user prerogatives as defined in the Public Domain Manifesto - provides the necessary basis for the legitimate needs of education and science.

Similarly, access to educational and scientific information has been the subject of detailed analysis at several COMMUNIA meetings. In particular, the 2nd COMMUNIA Conference, Global Science and the Economics of Knowledge Sharing Institutions, addressed contractually constructed commons and public domain initiatives with particular emphasis on academic research. The 8th COMMUNIA Workshop, Education of the Public Domain: The Emergence of a  Shared Educational Commons focused on open educational resources (OER) and several OER projects. Finally, the 3rd COMMUNIA Conference, University in Cyberspace: Reshaping Knowledge Institutions for the Networked Age, touched extensively upon open access in scholarship and research while discussing the most significant issues facing universities in the networked age.

However, COMMUNIA advocacy of open access is not an isolated one. Open access as a new norm in scholarship and research has been promoted globally, as the worldwide celebration of the fourth edition of the open access week on October 18-24, 2010  may witness.^[41] 

As a general rule, open access refers to a publishing model where the research institution or the party financing the research pays for publication and the article is then freely accessible. In particular, open-access refers to free and unrestricted world-wide electronic distribution and availability of peer-reviewed journal literature.^[42] The Budapest Open Access Initiative uses a definition that includes free reuse and redistribution of “open access” material by anyone.

The major propulsion to open access at the European level was given by the so called Berlin Conferences.^[43] The first Berlin Conference was organized in 2003 by the Max Planck Society and the European Cultural Heritage Online (ECHO) project to discuss ways of providing access to research findings. Annual follow-up conferences have been organized ever since. The most significant result of the Berlin Conference was the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities (“Berlin Declaration”), including the goal of disseminating knowledge through the open access paradigm via the Internet.^[44] The Berlin Declaration has been signed by hundreds of European and international institutions.

Since the inception of the open-access initiative in 2001, there are now more than five thousand open access journals.^[45] In addition, several leading international academic institutions have endorsed open-access policies^[46] and have been working towards mechanisms to cover open-access journals’ operating expenses.^[47] At the 2nd COMMUNIA Conference in Turin, Bernt Hugenholtz strategized that universities and research institutes should discourage or prohibit 'all rights' transfers to publishers, promoting instead open access practices. 

Together with research articles, data, teaching materials, and the like, the importance of open access models extends also to books.  Millions of historic volumes are now openly accessible from various digitization projects such as Europeana, Google Books, or Hathi. In addition, many recent volumes are also available as open access from a variety of academic presses, government and nonprofit agencies, and other individuals or groups.

Libraries cataloging data have been more and more released under open access models. Some institutions have taken a more open approach than others but openness seems to become a widespread solution when it comes to cataloging data. The Online Computer Library Center (OCLC) has a policy in place that allows access and reuse of WorldCat-mediated data by OCLC members. Several German libraries and the biblios.net project make their bibliographic data available for reuse without restriction.^[48] The Open Knowledge Foundation has also released principles for open bibliographic data, recommending that bibliographic data be made available with public domain dedication or with as few restrictions as possible.^[49] The British Library has been following the OKF recommendations by making its bibliographic data generally available for non-commercial use^[50] and releasing three million records from the British National Bibliography into the public domain using the CC0 public domain waiver.^[51] 

Recent economic studies have been showing a positive net value of open access models when compared to other publishing models. In June 2009, a study authored by John Houghton of the Centre for Strategic Economic Studies at Victoria University in Melbourne, Australia, has compared the costs and benefits of three different publication models in the United Kingdom, Netherlands and Denmark.^[52] The report was commissioned by Knowledge Exchange and based on background studies undertaken in the UK by the Joint Information Systems Committee (JISC),^[53] in the Netherlands by the SURF Foundation,^[54] and in Denmark by the Denmark’s Electronic Research Library (DEFF).^[55] The studies showed that adopting an open access model to scholarly publications could lead to annual savings of around €70 million in Denmark, €133 million in the Netherlands and €480 million in the United Kingdom. In addition, potential increases in the social returns to R&D resulting from more open access to research findings would largely outweigh the costs.^[56]

Few months ago, another study authored by the same Australian research team concluded that free access to U.S. taxpayer-funded research papers could yield $1 billion in benefits.^[57] The study was commissioned to examine the potential payoff of expanding a National Institutes of Health (NIH) policy requiring grantees to post their papers in a free database after a 12-month delay. A bill pending in the U.S. Congress would extend the policy to 11 more agencies and shorten the disclosure delay to 6 months.^[58] The model developed by the Australian team found that over a period of 30 years from implementation, the benefits of a policy opening access to publicly funded research would exceed by eight times the costs (e.g. of archiving), or five times counting the benefits only accruing in the United States.^[59] In fact, the study found that one-third of these benefits would spill over to other countries.

Discussion

As described above, privileged and open access to education and research materials entails considerable social and economic value. To the end of extracting this value and profiting from the new technological opportunities, COMMUNIA promotes privileged and open access to cultural outputs for education and research purposes. The COMMUNIA members detail the strategy to promote education and science by requesting the European institutions to undertake the following actions and implement the following principles:

12.1. It is essential to expand exceptions and limitations for educational and research use so as to allow for unlimited reusability free from technological restrictions of any kind of material covered by exclusive rights. This includes uses occurring outside of institutional settings.

In particular, exception and limitations to exclusive right for educational and research purposes should (i) be mandatory for Member States, (ii) apply to education as a general process, not to institutions only, and be unbounded from the physical space of institutions, (iii) apply to both compiled material and data.

12.2. All publicly funded research output, educational resources and other protected works that are made publicly available, must be made available according to the open access standards and at a minimum compliant with the 'Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities'.

In particular, as per the Berlin Declaration, to meet open access standards a work must satisfy two conditions: (1) the authors and right holders of the work grant to all users a free, irrevocable, worldwide, right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship, as well as the right to make small numbers of printed copies for their personal use; and (2) a complete version of the work and all supplemental materials, including a copy of the permission as stated above, in an appropriate standard electronic format is deposited (and thus published) in at least one online repository using suitable technical standards that is supported and maintained by an academic institution, scholarly society, government agency, or other well established organization that seeks to enable open access, unrestricted distribution, inter-operability, and long-term archiving.

Additionally, universities should respect the Wheeler Declaration Principles stating that (i) the research that the university produces is open access; (ii) the course material are Open Educational Resources (OER); (iii) the university embraces free software and open standards; (iv) if the university holds patents, it readily licenses them for free software, essential medicines, and the public good; (v) the university network reflects the open nature of the internet.

Further, funding organizations supporting the creation of educational resources should adopt a policy that strongly encourages or require their grantee to disseminate the educational resources under Creative Commons licences, and particularly Creative Commons Attribution (CC-by) as the preferred licencing option for Open Educational Resources (OER).

12.3. All publicly funded data-sets must be made available, including for commercial use, in the structural Public Domain or in the voluntary commons (as defined in the Public Domain Manifesto) with due respect for privacy and ethical issues.

In particular, EC funded data-sets which are perceived as publicly needed as infrastructures for research and science should be made available under (i) public domain dedication, (ii) Creative Commons Zero Waiver (CC0) or (iii) a licensing scheme allowing free re-use, possibly under a "share-alike" clause.

It is worth noting that substantially similar principles have been endorsed by the Charter for Innovation, Creativity and Access to Knowledge released by the Free Culture Forum,^[60] and the Panton Principles for Open Data in Science, launched by Open Knowledge Foundation.^[61]

Further Proposals

Further proposals to enhance open access to academic material have been put forward during COMMUNIA proceedings. In particular, Professor Paul Uhlir talked about a model of open knowledge environments (OKEs) for digitally networked scientific communication. The OKEs would “bring the scholarly communication function back into the universities” through “the development of interactive portals focused on knowledge production and on collaborative research and educational opportunities in specific thematic areas.”^[62] 

The OKE model would build upon online peer production and participative web 2.0 environments and techniques. The OKEs would transform the traditional scientific journal model into a “truly interactive networked mechanism for integrated knowledge production and reuse.” The OKEs would be practically implemented as follows:

1. (i) the OKE would be developed around thematically linked open access journal;
2. (ii) openly available report, gray literature and data would augment the OKE;
3. (iii) various interactive functions, such as wikis, discussion forums, blogs, post publications reviews, and distributed computing, would be added to stimulate discussions and contributions;
4. (iv) semantic web technologies would be added to increase the opportunities for automated knowledge generation, extraction and integration, and the OKE could encode references under a unified numbering system for easy search and integration of information.

Several options would be available for setting up the physical location of the OKEs:

1. (i) the OKEs could be hosted at single universities;
2. (ii) the components of the OKE may be distributed among a consortium of universities sharing a privileged interest in a specific subject matter; alternatively,
3. (iii) the OKEs could be based at based at not-for-profit research centers or government agencies.

The OKEs would be multidisciplinary in character by bringing in the experts of the specific subject matter, in house computer engineers, information scientists and librarians to help establish and manage the OKEs. As a consequence of being integrated directly into the curricula or research functions of the host organizations, the OKEs would have low overhead cost to operate by using on site personnel and students. Additionally, financial sustainability of OKEs would be provided by grants and other positive externalities that the OKEs will attract to the hosting organizations.

The European Commission should promote quantitative studies to investigate the value and feasibility of OKE projects. The European Commission should take into consideration the opportunity to design an action plan to promote the development of OKEs throughout the network of European academic institutions.

Relevant Actions to Be Taken by:

46. European Commission (EC)

1. Broaden existing exceptions and limitations to cover uses outside of formal educational institutions.
2. Require that all publicly funded research output, educational resources, other protected works, and data-sets are made available according to the open access standards.
3. Promote quantitative studies to investigate the value and feasibility of OKE projects and the development of OKEs throughout the network of European academic institutions

47. European Parliament (EP)

4. Broaden existing exceptions and limitations to cover uses outside of formal educational institutions.
5. Require that all publicly funded research output, educational resources, other protected works, and data-sets are made available according to the open access standards .

48. Member States (MS)

6. Broaden existing exceptions and limitations to cover uses outside of formal educational institutions.
7. Require that all publicly funded research output, educational resources, other protected works, and data-sets are made available according to the open access standards.
8. Promote the development of OKEs throughout the network of national academic and research institutions

49. Public Funding Bodies (PFBs)

9. Require that all publicly funded research output, educational resources, other protected works, and data-sets are made available according to the open access standards .

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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.

(Corresponding to COMMUNIA Policy Recommendation 13 - Download Postcard)

Currently publicly funded memory organisations fall outside the scope of the PSI directive. In order to strengthen the position of these organisations they should be brought within the scope of the directive. The directive also needs to be strengthened by mandating that Public Sector Information will be made freely available for all to use and re-use without restrictions. What has been paid for by the public must be available to the public regardless of the nature of the intended uses.

Background and Discussion

Public sector information (“PSI”) is produced and collected by public bodies and includes digital maps, meteorological, legal, traffic, financial, economic and other data. PSI is the major source of information in Europe. As the Commission notes on the Europe’s Information Society Thematic Portal, the great value of PSI lies in the potential for re-use of the data.

[ . . . ] Most of this raw data could be re-used or integrated into new products and services, which we use on a daily basis, such as car navigation systems, weather forecasts, financial and insurance services. [ . . . ] Re-use of public sector information means using it in new ways by adding value to it, combining information from different sources, making mash-ups and new applications, both for commercial and non-commercial purposes.^[63] 

The Commission fully understands the value of re-use of PSI by highlighting that “[i]ncrease in the re-use of PSI generates new businesses and jobs and provides consumers with more choice and more value for money.”^[64] According to surveys conducted by the European Commission in 2006, the overall market size for PSI in the EU is estimated between 27 billion^[65] and 68 billion annually.^[66] 

Since the adoption of the European Directive on the re-use of public sector information in 2003 (PSI Directive), digitization has multiplied the economic potential of PSI. Therefore, the Digital Agenda for Europe and the Commission work program 2011 have signaled the review of the PSI Directive as one of the key actions for propelling European growth.

COMMUNIA has investigated the matter of PSI in several occasions, especially at the 5th COMMUNIA Workshop, co-organized by the Open Knowledge Foundation and London School of Economics, focusing on Accessing, Using and Reusing Public Sector Content and Data. In the context of a review of the PSI Directive, COMMUNIA recommends the Commission to discuss and consider few actions to be undertaken to the extract all the economic potential from PSI.

11.1. The Commission should broaden and strengthen the PSI Directive, by increasing its scope and urging Member States to make Public Sector Information freely available for all to use and re-use without restriction.

COMMUNIA reinstate that it should be recognized that Public Sector Information is a crucial part of the digital public domain. All official documents, including laws, other official text of a legislative, administrative or legal nature, official translations of such texts, speeches delivered in the course of legal proceedings or by publicly elected or appointed officials, should fall in the structural public domain. Access to and re-use of PSI should be included in the functional public domain. This will create a flourishing information economy and a strong European digital society. In order to create a flourishing information economy, strengthen European digital society and build a fast growing and wealthy market, barriers to access and transaction costs should be as low as possible.

To that end, PSI materials should follow the open by default rule, which means: (1) using standard legal tools, such as Creative Commons, General Public Licence, etc., reconstructing a legal status as similar as possible to the public domain, such as Creative Commons Zero (CC0); (2) being accessible as raw data, machine readable formats on the Internet without restrictions; (3) being free of charge. In particular, public sector information available in digital format should be open.

The open by default rule could have some exceptions that should be motivated on a case by case basis according to the following principles: (i) licensing restrictions related to special type of data (privacy, etc.) or chain of authorization may be taken into account; (ii) the infrastructure to give access should be as efficient as possible; (iii) when it is necessary to charge a price, the pricing mechanism should be based on hard evidence of the cost directly related to process; (iv) reasonable restrictions related to the materiality of some supports may be taken into account (i.e. no flash in museums; limited access to ancient manuscripts).

Whilst fee-based charging for a service and related material should continue, COMMUNIA notes that making digital upstream non-personal PSI available at marginal cost of distribution, which is close to zero, bears several benign effects. Firstly, it encourages the government to ration PSI to what it really needs to be considered for good government (a good that is produced with public money and should be enjoyed by the public at cost of distribution) and to fulfil its statutory duty at minimum costs. Secondly, the re-use by the private sector and individuals is genuinely encouraged, creating innovation and enterprise. Finally, the current internal PSI licencing complexities that bedevil the public sector would largely be eradicated.^[67]

Additionally, COMMUNIA would like to stress that PSI should be always made available for public reuse, including commercial re-use. Only the information that is actively made available in open standards under terms that allow all forms of re-use is likely to contribute to the creation of economic and social wealth.  Under the assumption that legal constraint on the re-use of PSI are not increased, COMMUNIA promotes the use of Creative Commons Attribution Licences (CC-by) for PSI, as detailed in the IViR Report, Creative Commons Licencing for Public Sector Information.^[68]

Finally, a proper regulatory authority responsible for oversight of PSI provision, maintenance, licencing and pricing should be created at the European level and national level.

11.2. Broaden the scope of the PSI Directive to include publicly funded cultural heritage organisations - such as museums or galleries.

The directive does not currently include publicly funded cultural heritage organisations - such as museums or galleries - within its scope. Under Article 2 of the Directive, certain types of content are excluded from the scope of the Directive including documents held by cultural institutions such as museums, libraries, archives, orchestras, operas, ballets and theatres (with other exemptions in this same article for secrecy, educational and research organisations and intellectual property rights of third parties).^[69] The directive could be broadened to include these kinds of organisations, which might encourage them to open up their content and data for others to reuse.

Opening up metadata about works and objects held by publicly funded cultural heritage organisations could be very useful to (i) help establish what is in the public domain in a given jurisdiction (as per the work on the calculators) and (ii) help to bootstrap a new generation of digital services for researchers and for the general public.

11.3. Broaden the evidence base for opening up PSI.

At present the European Commission primarily focuses on the value of PSI in a fairly narrow sense - e.g. citing the MEPSIR and PIRA study estimates of a market size of 27 or 68 billion Euros, respectively. While this kind of evidence is obviously crucial for European policymakers, the Commission should also take into account other potential benefits of opening up PSI, such as improvements to public service delivery, greater accountability of public bodies, the intrinsic value of PSI (e.g. cultural or educational), and enabling the creation of new digital services for citizens.

Additionally, COMMUNIA emphasizes that open access and free re-use of PSI is pivotal to boost the democratic process. PSI encompasses a large amount of extremely sensitive data, including information related to (i) political decision-making processes, (ii) environmental and health issues, and (iii) different cultures and their histories. To this regard, any new policy strategies should take into account that opening up access to and re-use of PSI will empower people with less ability to finance creation and dissemination of their speech. Open PSI will contribute to the goal of bringing “the millions of dispossessed and disadvantaged Europeans in from the margins of society and cultural policy in from the margins of governance.”^[70] The quality and democratic value of PSI, not only the economic value, must be carefully pondered and investigated when discussing new policy strategies.

Relevant Actions to Be Taken by:

50. European Commission (EC)

1. Review the PSI directive and include publicly funded memory institutions in its scope.
2. Broaden the evidence base for opening up PSI to social and democratic value

51. European Parliament (EP)

3. Review the PSI directive and include publicly funded memory institutions in its scope.

52. Member States (MS)

4. Review the national implementations of the PSI directive and include publicly funded memory institutions within their scope.
5. Make PSI freely available for all to use and re-use without restriction

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In order to support the emerging culture of sharing copyright protected works alternative reward systems and cultural flat rate models should be explored.

(Corresponding to COMMUNIA Policy Recommendation 14 - Download Postcard)

The current debate about copyright is dominated by a narrow focus on the business models of the entertainment industry. As part of this discussion rights holders advocate more extensive copyright protection and more stringent enforcement in order to ensure the survival of business models based on selling access to copies of protected works. While there is no evidence that extended copyright protection and/or stronger enforcement will allow these business models to continue to exist, there is clear evidence that any extension of copyright protection will harm our ability to access our shared knowledge and culture. Instead of focusing on an extension of copyright protection and enforcement alternative rewards systems and cultural flat rate models should be explored. These systems are in line with the emerging of a culture of sharing that attempts to maximize access to and interaction with cultural works.

Background and Proposals

Sharing is essential to the emerging digital culture. Young generations digitize, share, rip, mix, burn, and share again as a natural tool of human interactions. COMMUNIA maintains that full recognition of a non-commercial right to share creative works between individuals should be the goal of any modern policy aiming to enhance creativity in the digital environment. At the same time, criminalization of Internet users by cultural conglomerates is a source of social tension that needs to be promptly redressed.

Joseph Schumpeter noted that the “fundamental impulse that sets and keeps the capitalist engine in motion” is the process of creative destruction which “incessantly revolutionises the economic structure by incessantly destroying the old one, incessantly creating a new one.”^[71] COMMUNIA calls for the blow of the Schumpeterian wind of creative destruction to support the emerging culture of online, digital sharing of copyright protected works. The investigation and promotion of alternative business models for financing the production of creative works is the key to unlocking the potentials of technological advancement. In Schumpeter’s words, revolutionizing the economic structure by introducing alternative business models is the key to keep our economy in motion. Hence, to propel innovation and growth in the European Internal Market for knowledge, a great deal of COMMUNIA activities has been dedicated to the investigation of alternative business models for creativity, in particular the 7th COMMUNIA Workshop, Digital Policies: the Public Domain and Alternative Compensation Systems, that took place in Luxembourg in February 2010.

Alternative remuneration systems have been widely discussed and investigated lately. New business models have been emerging that switch the focus from the content to the container. Artists have come to realize that it may be more valuable to sell the corpus meccanicus, such as live performances, special editions, bonus material, merchandize, and share the corpus immaterialis. The examples are on the rise: Radiohead, Nine Inch Nails, The Arctic Monkeys, who got to number one in 2005 after giving away their single for free on their website, and plenty of other bands and artists. Sharing content is a powerful drive for increasing the revenue stream more directly linked to the reputational value that can be extracted from a broader distribution of the content. Giving away music records may increase concerts’ attendance and help to build or enlarge the artist’s fan base. As also the Economist has noted, “a lot of things are making money” in the music business notwithstanding the decline in sales of recorded music.^[72] 

A recent Harvard report showed that the classical revenues sources shift from recordings to concerts, coupled by an increase in diversity with a greater number of artists on tour, almost 95% more in 10 years.^[73] The conclusion of the study is that broader illegitimate distribution of digital goods may have off-setting demand implications for legitimate sales of complementary non-digital products. Similar findings have been put forward by other studies. In particular, Oberholzer-Gee and Strumpf have noted that file sharing has not undermined the incentives of authors to produce new works, instead has increased the demand for complements to protected works, raising, for instance, the demand for concerts and concert prices.^[74]

In search of alternative remuneration systems, throughout the last decade, researchers, activists, consumer organizations, artist groups, and policy makers have proposed to finance creative works and artists on a flat-rate base. Flat rate proposals are set to favour an ecology of sharing, mindful that any business model preventing or limiting sharing is an outmoded solution which is unsuited for the digital environment. As Volker Grassmuck, speaker at the 7th COMMUNIA Workshop, has noted, “the world is going flat(-rate).”^[75] A recent study of the Institute of European Media Law has argued that this may be “nothing less than the logical consequence of the technical revolution introduced by the internet”.^[76]

As a matter of fact, quasi flat rate models have been already widely implemented throughout Europe, although in the analog environment.^[77] Many national legislations have implemented different arrangements of private copying levies that may be envisioned as a form of cultural tax. Private copying levies are special taxes or levies which are charged on purchases of recordable media and copying devices and then redistributed to the right holders by means of collecting societies. The point of what we can learn from private copy has been largely discuss during COMMUNIA proceedings, especially by Mark Cole at the 7th COMMUNIA Workshop.^[78] Applying the flat-rate model to the online exchange of digital files would only port a traditional tool from the analog to the digital environment. The rational for implementing a flat rate model online would be very similar to the reasoning that led many European countries to set up private copies levies. As levies on recording devices and media have been set up upon the acknowledgment that private copying cannot be prevented, the same should apply to the introduction of the legal permission to copy and make available published copyrighted works by individuals for non-commercial purposes in the Internet. Sharing deeply characterizes a preponderant part of online interactions. Lawmakers should acknowledge that an entire culture of sharing cannot be criminalized or prevented. Therefore, online sharing should be legalized, while ensuring fair remuneration to creators. This can be done by the implementation of alternative remuneration systems, especially flat rate models.

Several flat-rate models have been proposed. For some, the flat-rate payment by Internet broadband subscribers is to be construed as a compensation to authors, artists and producers for an alleged harm caused by sharing. Other see the flat-rate as putting in place a new reward system, which is outside the scope of copyright, and could enable a wider engagement in creative activity. Some see the scheme as similar to private copying levies managed by collecting societies, while others want to put in place an entirely new management model, giving the key role to Internet users themselves. Some of the flat-rate models proposed will be review below. As per the proposals reported, please note that the description provided is not intended to be exhaustive and full reference should be made to the original studies as cited in the footnotes.

Firstly, a non-commercial use levy permitting non-commercial file sharing of any digitised work was proposed by Professor Neil Netanel.^[79] Such levy would be imposed on the sale of any consumer electronic devices used to copy, store, send or perform shared and downloaded files but also on the sale of internet access and p2p software and services. An ad hoc body would be in charge of determining the amount of the levy. The proceeds would be distributed to copyright holders by taking into consideration the popularity of the works to be measured by tracking and monitoring technologies. Users could freely copy, circulate and make non-commercial use of any works that the right holder has made available on the Internet.

A more refined and comprehensive proposal has been put forward by Professor William Fisher.^[80] Creators’ remuneration would still be collected through levies on media devices and internet connection. In Fisher’s system, however, a governmentally administered registrar for digital content, or alternatively a private organization, would be in charge of the management of creative works in the digital environment. Digitised works would be registered with the Registrar and embedded with digital watermarks. Tracking technologies would measure the popularity of the works circulating online. The Registrar would then redistribute the proceedings to the registered right holders according to popularity of the works.

Further proposals would subject the right to “make available to the public” to mandatory collective management. In particular, this proposal has been put forward by Silke von Lewinski from the Max Planck Institute for Intellectual Property, discussing a proposed amendment in the Hungarian Copyright Act.^[81] The same proposal has also been endorsed by the French Alliance Public-Artistes, campaigning for the implementation of a Licence Globale.^[82] Both studies confirm that the application of the mandatory collective management model to the making available right would be compliant with European and international copyright law. This solution would not qualify as an exception or limitation, hence would not trigger the three-step-test of Berne Convention or the finite list of exceptions of the European law, nor would violate the principle of national treatment or automatic protection. Under this framework the exercise of the exclusive right of the author would be only limited by the obligation of resorting to collective management to enjoy the economic rights attached to the right of making available to the public. As a consequence, the internet service providers would have to pay a lump-sum or levy to the collective societies in exchange of the authorization to download and  make available to the users the entire repertoire of the works managed by the collective society. The money collected will be then redistributed to the right holders.

COMMUNIA member Philippe Aigrain discusses a proposal termed creative contribution in his book Internet & Création.^[83] Aigrain’s proposal would encompass a global licence to share published digital works in the form of extended collective licensing, or, absent an agreement, of legal licensing.^[84] Remuneration would be provided by a flat-rate contribution that will be paid by all internet broadband subscribers. The amount proposed for all media (in France) is 5 to 7 € per subscriber per month with an yearly contribution between 1200 million € and 1700 million €. Half of the money collected would be used for the remuneration of works that have been shared over the Internet according to their popularity. Measurement of popularity would be based on a large panel of voluntary Internet users transmitting anonymous data on their usage and statistical techniques aiming at minimizing privacy intrusion. The other half of the money collected would be devoted to funding the production of new works and the promotion of added-value intermediaries in the creative environment. Distribution of the system’s proceedings would differ according to their intended use. As per the proceedings to be distributed for compensating the creators, an independent observatory would be created to process the data on popularity and forward the final results to collective management societies. As per the proceedings devoted to foster new creations, a mix of peer-based allocation of funds and assignment to intermediaries by internet subscribers (under the competitive intermediaries model) would be used.

Extended collective licencing is also endorsed by the proposal of the Nexa Center for Internet and Society at the Politecnico of Turin.^[85] In view of the Nexa Center, an extended collective licensing scheme is the most appropriate tool to be used by a European Member State to legitimize the file-sharing of copyrighted content since: (i) it is already successfully in use in the Nordic countries; (ii) it does not affect the (exclusive) nature of the right since it consists of a voluntary management modality, thus not degrading the exclusive right into a right of mere remuneration; (iii) it represents a fair balance between the fundamental right of authors to the protection of their moral and economic interests and that of access to knowledge, which belongs to the general public; (iv) it is identified as a possible solution to the problem of orphan works in the “Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works” adopted by the High Level Expert Group – Copyright Subgroup, and above all (v) it is explicitly contemplated by recital 18 of the Directive 2001/29/CE. Collective management bodies will negotiate the license with users’ associations or ISPs. In exchange of the right of reproducing and making available content online, right holders will be remunerated by the proceedings collected through the extended collective license.

COMMUNIA looks with particular favour on a recent proposal from the German and European Green Parties. The German and European Green Parties have included in their policy agenda the promotion of a cultural flat rate to decriminalise P2P users, remunerate creativity and relieve the judicial system and the ISPs from mass-scale prosecution. The Green Party’s proposal has been backed up by a study commissioned to the Institute of European Media Law (EML) that found that a levy on Internet usage legalising non-commercial online exchanges of creative works conforms with German and European copyright law, even though it requires changes in both. The EML study has described the minimum requirements for a culture flat-rate as follows: (i) a legal licence permitting private individuals to exchange copyright works for non-commercial purposes; (ii) a levy, possibly collected by the ISPs, flat, possibly differentiated by access speed; and (iii) a collective management, i.e. a mechanism for collecting the money and distributing it fairly.

It also is worth mentioning that, together with proposals for an explicit exception in copyright law and a redistribution to creators via collective management, voluntary market solutions based on contracts among companies and between companies and consumers have also emerged, as detailed in Volker Grassmuck, The World is Going Flat(-Rate).^[86]

On a related note, as shown by the proposals mentioned and as argued at the 7th COMMUNIA Workshop,^[87] the importance and the role of collective societies for any future systems must be acknowledged and carefully reviewed. COMMUNIA maintains that the European collective society system has to be modernised and harmonised to take up the challenge of fostering a culture of sharing in the digital environment, while providing fair remuneration to the creators. Harmonization at the European level and governmental supervision should contribute to define the role of collective society in the management of alternative remunerations systems. To that end, an “alternative” or simply overhauled system based on collective societies must be transparent and credible. In this regard, it is of essence to develop fixed rules for collective societies for the documentation and allocation of the use of content as well as for the re-distribution of the earned money to the right-holders.

Alternative Forms of Licencing for Creative Material

Additionally, COMMUNIA believes that public policies could favour the use of already existing open licensing schemes, including Creative Commons licences.

(1) Public bodies may increase the likelihood of open licenses being chosen by private parties just by using such licenses themselves, unless national laws already provide for a public domain status for the relevant kind of public sector information. Public bodies should use the most open licensing schemes, such as a Creative Commons Attribution License, for their publications and for all the content they make available, unless they can provide compelling reasons to do otherwise (e.g. they do not own sufficient rights to do so). In other words, a legal status similar to Copyright 2.0 should be by default the goal of licensing choices of public entities.

 (2) Internet service providers hosting blogs, forums, newsgroups and/or social networks and other Web 2.0 platforms should be explicitly encouraged to make it very easy for their users to choose open licences under the following terms: (i) users should be enabled to set an open license as their own “default choice” for copyright licensing of newly created content; (ii) platforms should be encouraged to recommend the most open licensing choices and/or should enable them by technological default. In other words, Copyright 2.0 should be implemented as the default choice of authors publishing through online platforms.

Relevant Actions to Be Taken by:

53. European Commission (EC)

1. Explore the opportunities offered by alternative rewards systems and cultural flat rate models.
2. Encourage the use of open licencing schemes by private parties and public bodies.
3. Include a file-sharing exception in the Directive 2001/29/EC.

54. European Parliament (EP)

4. Amend the Directive 2001/29/EC to include a file-sharing exception.

55. Member States (MS)

5. Encourage the use of open licencing schemes by private parties and public bodies.

1. Provide for a file-sharing exception to copyright protection.

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The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture.

(Corresponding to COMMUNIA Policy Recommendation 1 - Download Postcard)

The term of copyright protection should be reduced. There is no evidence that copyright protection that extends decades beyond the life of the author encourages the production of copyright protected works. Instead the requirement to obtain permission for works by authors that have long died are one of the biggest obstacles for providing universal access to our shared culture and knowledge. Given the above the term of copyright protection for new works (that is works created after the term-reduction) should be reduced.

Additional Proposals

However, the Commission and the Parliament may investigate the possibility of following alternative strategies, including

1. limiting the term of protection to the artist’s life;
2. making the rights related to such an extended term not transferable to record producers (labels);
3. regulating that the extended period will be managed under liability rules (rights to remuneration) via collecting societies (ensuring that sound recordings will become available);
4. regulating contracts during the existing term (e.g. extending the “use it or lose it” provision to the current term of protection).

Relevant Actions to Be Taken by:

1. European Commission (EC)

1. Introduce legislation that reduces the term of copyright protection across the member states.
2. Advocate term-reduction in international fora such as WIPO

2. European Parliament (EP)

1. Introduce legislation that reduces the term of copyright protection across the member states.

3. Member States (MS)

1. Introduce legislation that reduces the term of copyright protection across the member states.
2. Advocate term-reduction in international fora such as WIPO

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Harmonize Exceptions and Limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives – such as fair dealing and fair use – can be adapted to the ongoing technological transformations.

(Corresponding to COMMUNIA Policy Recommendation 3 - Download Postcard)

Though the European model of predefined Exceptions and Limitations may guarantee a high degree of legal certainty and lower transaction costs, the limited list of Exceptions and Limitations established by the copyright directive limits the possibilities to adjust the copyright system to the rapid pace of technological innovation that shapes how we interact with copyright protected works. This not only limits the abilities of citizens to gain access to our shared culture and knowledge but also imposes restrictions to innovative business models and as a result economic growth. Together with the introduction of an open ended exception such as a fair dealing or fair use clause, it is imperative that exceptions and limitations can be adjusted to the needs of society at large and innovative economic actors in particular.

Relevant Actions to Be Taken by:

7. European Commission (EC)

1. Review the copyright directive by opening up the exhaustive list of exceptions and limitations. Examine the possibility of introducing a fair dealing or fair use provision.

8. European Parliament (EP)

2. Review the copyright directive by opening up the exhaustive list of exceptions and limitations. Examine the possibility of introducing a fair dealing or fair use provision.

9. Member States (MS)

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As a pre-requisite for unlocking the cultural, educational and economic potential of the public domain, identification of works being in the public domain should be made easier and less resource consuming by simplifying and harmonizing rules of copyright duration and territoriality.

(Corresponding to COMMUNIA Policy Recommendation 4 - Download Postcard)

The rules for establishing the duration of the term of protection of individual works have become so complex that it is almost impossible to establish with certainty whether a work is protected by copyright (including all neighboring rights) or whether it is in the public domain. This complexity of the system makes it very difficult to automatically calculate the status of a work. Two factors have contributed to this situation: the divergence of legislation between de different member states and a large number of (national) exception clauses. This situation can only be remedied by intervention on the European level, preferably by simplifying the rules and harmonizing them across Europe.

The work on public domain calculators has highlighted the incredible complexity of copyright term rules which makes it very difficult to determine the copyright status of individual works. This means that one of the biggest obstacles to positively identifying public domain works (and thus unlocking their cultural, educational and economic potential) lies in the cumbersome process of determining the term of copyright protection.

4.1. The COMMUNIA network has contributed to the development of tools for identifying the copyright status of works. as these tools in their current form require human input in order to determine the status of works, the Commission should consider supporting work on future versions of these tools that can automatically determine the copyright status of works based on publicly available bibliographic metadata.

Relevant Actions to Be Taken by:

10. European Commission (EC)

1. Introduce legislation that simplifies the rules to determine the term of protection and further harmonizes these rules across the member states.
2. Supporting work on public domain calculators

11. European Parliament (EP)
12. Member States (MS)

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Digital reproductions of works that are in the Public Domain must also belong to the Public Domain. Use of works in the public domain should not be limited by any means, either legal or technical.

(Corresponding to COMMUNIA Policy Recommendation 5 - Download Postcard)

The internet enables the widespread re-use of digital reproductions of works of authorship whose copyright protection has expired. The public Domain status of these works means that there is no owner of the works who can impose restrictions on their reuse. At the same time the owners of the physical works (such as heritage institutions) often feel that they are entitled to control over digital reproductions as well and that they can impose restrictions on their reuse. However digitization of Public Domain works does not create new rights over it: works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitized.

Relevant Actions to Be Taken by:

13. European Commission (EC)

1. Ensure that cultural heritage institutions that receive funding for digitization projects or contribute to Europeana do not impose undue restrictions on the reuse of Public Domain works.
2. Promote the explicit marking of works that are in the public domain.

14. European Parliament (EP)
15. Member States (MS)
16. Memory Institutions (MI)

1. Refrain from implementing business models that rely on exclusive control over public domain works.

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Any false or misleading attempt to misappropriate Public Domain material must be declared unlawful. False or misleading attempts to claim exclusivity over Public Domain material must be sanctioned.

(Corresponding to COMMUNIA Policy Recommendation 6 - Download Postcard)

In order to preserve the integrity of the Public Domain and protect users of Public Domain material from inaccurate and deceitful representations, any false or misleading attempts to claim exclusivity over Public Domain material must be declared unlawful. There must be a system of legal recourse that allows members of the public to get sanctions imposed on anyone attempting to misappropriate Public Domain works.

Relevant Actions to Be Taken by:

17. European Commission (EC)

1. Introduce legislation that makes false or misleading attempts to claim exclusivity over Public Domain material unlawful.

18. European Parliament (EP)
19. Member States (MS)

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Memory Institutions must be enabled to fulfill their traditional function in the online environment. In order to be able to provide access to knowledge and culture they must benefit from compulsory and harmonized exceptions and limitations that allow them to make their collections available online for non-commercial purposes.

(Corresponding to COMMUNIA Policy Recommendation 10 - Download Postcard)

Memory Institutions must be able to fulfill their duty to provide access to knowledge and culture by benefitting from harmonized exceptions and limitations (copyright, but also other IPR), solutions for orphan works and standardized and harmonized licensing terms. To ensure the functioning of Memory Institutions the term of copyright protection must not be extended.

Memory Institutions must keep in mind the long-term costs of the lifecycle of cultural content, including sustainability costs and skilled personnel. Public-private partnerships must be aimed at opening up the content, public investments must at least ensure access, preferably under an open license or directly into the Public Domain.

In order for publicly funded memory institutions to maintain their position in the digital age they need to be enabled to make available their collections online for non-commercial purposes. Across Europe these organisations hold an unrivaled wealth of knowledge and information related to our shared knowledge and culture. Preventing these organisations from effectively making their collections available online means delegating them to second class status and devaluing the long term investments embodied by these organisations. Existing exceptions and limitations benefitting memory institutions need to be broaden to allowing institutions to make available those works that they hold in their collections for non-commercial purposes.

Relevant Actions to Be Taken by:

37. European Commission (EC)

1. Develop a policy framework that allows European cultural heritage institutions to properly function in the online environment

38. European Parliament (EP)

2. Develop a policy framework that allows European cultural heritage institutions to properly function in the online environment

39. Member States (MS)

3. Develop a policy framework that allows European cultural heritage institutions to properly function in the online environment

40. Memory Institutions

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Digitization projects that receive public funding must - at the minimum - ensure that all digitized content is publicly available online. Allowing for the free redistribution of digitized content should be considered since it is beneficial for the sustainability of the access to digitized cultural heritage.

(Corresponding to COMMUNIA Policy Recommendation 11 -Download Postcard)

When public funding is used for digitization projects it needs to be assured that the public benefits from these efforts. At the minimum this means that digital versions need to be available online for consultation by the public that has paid for the digitization effort. Public funding bodies should prioritize digitization projects that will increase the amount of our shared and culture that is available to the public. Memory institutions that receive public funding should consider making available digitized collections with as little restrictions as possible. Free availability of collections that includes the free redistribution and reuse of the digital artifacts will result in wider availability and reduce the risks inherent to centralized storage

Relevant Actions to Be Taken by:

41. European Commission (EC)
42. European Parliament (EP)
43. Member States (MS)
44. Memory Institutions (MIs)

1. Memory Institutions should consider allowing free redistribution of digitized content.

45. Public Funding Bodies (PFBs)

1. Prioritize digitization projects that result in an increase the amount of our shared and culture that is available to the public.