New copyright rules for Europe? What do memory institutions want?

Extended blog post by Paul Keller, Kennisland.

On 5 December, the European Commission launched its much anticipated public consultation on the review of the EU copyright rules. This blog summarises the key points of the consultation and asks all memory institutions to comment on the consultation - more details at the end of the post.

This consultation is the first visible sign of the second track of the Commission’s attempt to modernise the EU rules (the first track consisted of the Licences for Europe stakeholder dialogue). According to the Commission the focus of this effort is on:

'… ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity.'

For many memory institutions, it has been obvious for a long time that the current EU copyright framework is not fit for purpose for these organisations to fulfil their missions in the digital environment. The problems related to copyright have been frequently discussed in the the context of Europeana and other digitisation efforts. While there has been some progress (most notably the 2012 EU directive on certain permitted uses of Orphan Works), it is clear that there are still huge barriers facing memory institutions wanting to operate in the digital environment.

From the perspective of memory institutions, it is therefore very welcome that the European Commission is now reviewing the EU copyright rules and that issues related to memory institutions are part of this review. This gives these institutions the opportunity to draw attention to the problems they are facing and to express the policy outcomes that would support them in fulfilling their public missions.

Mash-up using a public domain work by Paul Keller. Based on The Anatomy Lesson of Dr. Nicolaes Tulp by Rembrandt.

The consultation

The consultation document (pdf) covers a wide range of issues from the functioning of the single market for copyrighted works, to linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for memory institutions, education, research, persons with disabilities and ‘user generated content’. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights and the possibility of a single EU copyright title. Finally, there is an open question that allows respondents to flag issues that the Commission is not explicitly asking about.

All of this comes in the form of a 37-page document that contains 80 questions. The size and thematic breadth of this document may be intimidating at first sight, but the Commission explicitly mentions that respondents to the consultation can focus on a subset of the questions. The consultation contains a number of sections that are relevant to the work of memory institutions. The first of these are in the section on ‘Rights and the functioning of the Single Market’.

Registration and term duration

Question 15–18 on page 14 deal with the registration of works and other subject matter. In the discussion about orphan works, a general registration system has been suggested as one way to prevent future orphan works, so this section may be of interest to memory institutions.

Question 20 on page 16 deals with the duration of copyright protection. The Commission wants to know if the current term of protection is still appropriate in the digital environment or if it should be shorter or longer. Memory institutions frequently argue that the current term of protection (life of the author plus 70 years) is too long when compared with the commercial life of many of the objects that can be found in the collections of these institutions. This prevents them from making works in their collections available online for a disproportionate amount of time, resulting in much of the 20th-century material that is held by institutions being currently unavailable.

Limitations and exceptions

The next section of the consultation focuses on limitations and exceptions in the single market. Exceptions and limitations are an essential part of the European copyright system that ensures user rights that create a balance to the exclusive right of creators. The existing copyright directive contains a list of 21 exceptions and limitations that may be implemented by national legislators. Of these 21 exceptions and limitations, one (the exception for temporary copies), is mandatory and all the other ones are optional. The member states have chosen to implement these exceptions to varying degrees, which means that users (such as memory institutions) in one member state may be allowed to make certain uses without permission from rights holders while the same type of user may not have the right to do so in another member state. Questions 21 22, 26 and 27 focus on this issue.

From the perspective of memory institutions who are increasingly cooperating across member state borders (via Europeana or otherwise), a level playing field would be desirable. In addition, this section contains questions dealing with more flexibility when it comes to exceptions and limitations (questions 24, 25 and 26). Some memory institutions have argued that a more flexible system, such as fair use, would provide them with more room to operate in the digital environment. This argument has gained credibility by the recent judgement in the Google Books case in the US, that allows Google and their library partners to digitise in-copyright books without having to obtain permission from the rights holders.

Libraries, Archives and Museums

The next section specifically deals with the scope of the exceptions benefitting memory institutions. While the consultation only mentions libraries and archives in the text of the questions, it is important to point out that the copyright directive explicitly refers to ‘publicly accessible libraries, educational establishments or museums, or archives’ (in article 5(2)c). Given this, museums should also answer these questions as they are equally relevant for them.

The first two sets of questions (28 - 35) deal with existing exceptions for preservation and archiving and the consultation of digitised works via dedicated terminals on the premises of establishments. Many memory organisations have argued that the existing limitations and exceptions, where they are implemented, are too restrictive. The making of preservation and/or archive copies should be allowed without restrictions and that memory institutions should be allowed to provide access to their collections via electronic means also from outside of their premises. Expanding both of these exceptions and making them mandatory would allow memory institutions to better leverage the opportunities created by digitisation.

The next set of questions (36–39) deals with e-lending. In the past, libraries and other institutions have expressed the need for new rules to allow them to lend electronic copies of works, as consumers are increasingly moving to digital forms of consumption. The questions allow institutions to make the case for electronic lending arrangements.

The final set of questions of this section concerns mass digitisation projects. The questionnaire points to both the 2012 directive on certain permitted uses of orphan works and the 2011 MOU on out-of-commerce-works as efforts undertaken to address the copyright issues facing institutions engaged in mass digitisation projects. The two questions asked (40 and 41) present institutions with an opportunity to point out the shortcomings of both the Orphan Works Directive and the MOU on Out of Commerce works. Question 41 explicitly asks if it is necessary to develop new mechanisms that enable institutions to digitise their collections without running into copyright issues. In the past, both the introduction of Extended Collective Licensing arrangements and the introduction of a more general exception benefitting memory institutions have been proposed. Such an exception would allow institutions to digitise and make available online for non-commercial purposes works that they have in their collections.

Responding to the consultation

The deadline for responses to the consultation is 5 February 2014. This consultation provides a unique opportunity for memory institutions to make their position on copyright rules in the digital environment heard. For this position to be clearly heard, it is important that as many institutions as possible react to the consultation highlighting the concerns of the cultural heritage sector.

To give strength to the viewpoint of our memory institutions and to highlight the particular issues it faces in areas such as cross border access and non commercial access to collections, the Europeana Foundation is therefore proposing to coordinate a consensus-driven collective response. Europeana is asking its Board and Network for a mandate to lead such a joint, coordinated response for its members as well as actively encouraging member associations and individual organisations to complete the questionnaire and participate in developing such a coordinated, consensual position.

Information on helping develop this can be found in the Advocacy section of Europeana Professional. We would like associations and individuals to send their positions vis-a-vis the public consultation, to give us copies of their completed questionnaires, to participate in a copyright review working group and express their opinions by commenting on this blog.