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In July 2013, the UK Intellectual Property Office (IPO) launched a call for views on copyright in Europe.  Our comments, as filed on 11 October 2013, can be viewed and/or downloaded below.

Individual responses from C4C signatories:

• Open Rights Group

C4C’s Comments on the IPO’s Call for Views on Copyright in Europe

• The ‘Licences for Europe’ (L4E) debate was wrongly framed from the outset, focusing on one approach to copyright (i.e. licensing.) to the exclusion of all alternatives and with the risk of extending copyright licensing to uses that are currently not covered.
• As a result, and due to the continuation of the process even after many of the participating stakeholders expressed their discontent, a series of organisations representing a wide spectrum of interests left the L4E Text and Data Mining Working Group 4 (WG4) on May 22^nd 2013. They include universities, research institutions, open access publishers, university researchers, research funders and Coadec, the only organization representing EU technology companies involved in this WG.
• Licensing has an important role to play, but a fact-based assessment of whether data mining requires copyright permission, and of alternatives to licensing, particularly exceptions and limitations, is also required to establish the appropriate balance.
• The Text and Data Mining (TDM) discussion is not about copyright or technical matters reserved to an elite: it is about the future of research and data-driven innovation in Europe, including in the area of medical discoveries; it is also about jobs, growth and reduction of costs (a McKinsey report estimates that government expenditure in Europe could be reduced by €100 billion a year through effective use of ‘big data’).
• The current discussions seem to only consider a double licensing scenario. This could lead to a situation whereby TDM is only affordable for larger businesses, to the detriment of the European digital [startup] businesses.
• There is an urgent need for Europe to be competitive with the United States and the high-tech economies in Japan and South Korea, where legal barriers to TDM specifically are far lower.
• Exceptions and limitations serve the public policy goal of securing access to digital content; an outcome that should not be left entirely to the market. The premise of the L4E WG4 appears to be that additional licenses are required for computers to ‘read’ and analyse the content for which universities and other entities have already paid large licensing sums.
• The only way to rescue the credibility of the L4E process is to:

1. Change the mandate given to the entire L4E process, so discussions go beyond the model of licensing and properly incorporate alternatives, to acknowledge the fact that copyright should be made more flexible to take into account changes to modes of accessing information, business practices, educational needs and of safeguarding cultural heritage that have occurred since the 2001 Information Society Directive.
2. Ensure that stakeholders that have been absent from the process since the start or that have left it since take part in it.
3. Ensure that, at European Commission level, all relevant DGs are included with an equal status, ranging from DG Communications Networks, Content and Technology (DG CONNECT), DG Internal Market and Services (DG MARKT), DG Education and Culture (DG EAC) and DG Research and Innovation(DG RTD).
4. Ensure that the process operates in full transparency moving forward.

 Copyright4Creativity Coalition

Download our Declaration here.

ANNEX – Reasons for a more flexible copyright regime include:

1. Access to information in the digital age – Lending by libraries is a crucial activity that supports education, life-long learning, work and leisure. In the physical world, the principle of exhaustion, a long-standing and important part of copyright law, permits libraries to buy and lend printed works. In the digital environment, there are no safeguards to protect equivalent activities of acquiring and “lending” e-books. As a result, a number of the biggest trade publishers are refusing to sell e-books to public libraries in European and other countries. Publishers, not librarians, are deciding library e-book policies from a commercial standpoint, rather than in the best interests of the community. As e-books become the norm, this is deeply worrying for the future of public library services and will diminish Europe’s vibrant reading culture, which is nurtured by libraries. To address this problem, libraries require an exception to the right of communication to the public to permit e-lending, and protection from licence terms that undermine statutory exceptions.
2. Consumers in the Single Market – Consumption of digital media may occur under an exception in one member state of the EU that does not exist in another. This presents problems for consumers exercising their freedom of movement. Careful consideration should be given to harmonisation of exceptions to avoid ‘accidental’ illegality, to the detriment of consumer perception of the credibility of the copyright regime.
3. Media pluralism – an extension of copyright to ‘snippets’ as stipulated in the Leistungsschutzrecht in Germany could result in thousands of smaller publications being removed from search engine and aggregation indexes, thereby damaging media pluralism.
4. Growth and jobs – The Internet and ICT industries play a key role in job creation and growth. Many companies active in this sector are SMEs at the forefront of innovation in Europe . A flexible regime that applies consistently across the European Union is indispensable to the completion of the Digital Single Market and to avoid inhibiting the growth of innovative startups businesses.
5. Visually impaired – Even in the most developed markets, only about 5% of published books are available to persons who are print disabled. The resulting “book famine” is aggravated by a lack of harmonisation of copyright exceptions for print disabled people across Europe. Because the EU Copyright Directive does not mandate exceptions for print disabled people, there is a great deal of variation among Members States, which, among other things, makes it illegal to transfer material made accessible across borders.
6. Research – Text and data mining and data-driven innovation are drivers of growth and scientific advance. Such activities do not conflict with the way works are sold, rented or otherwise normally exploited by right holders. ‘Licences for Europe’ implies broadening copyright protection to cover these practices and is in conflict with initiatives around open data and open government.
7. Cultural Heritage – Long accepted cataloguing and indexing activities by cultural institutions require that copyright is manageable. For example, archives are especially dependent upon exceptions and limitations because, for most material in their collections, such as unpublished letters or family films, there are no representative bodies to provide licensing and there is little prospect of new licensing models.  ‘Licences for Europe’ could therefore develop into a serious drawback for free information exchange. Rather than simplifying the activities of cultural institutions, new rights, such as those for press publishers discussed in Germany, could obstruct them, thereby inhibiting innovation.

The letter can be viewed and/or downloaded below, as well as the response received from Commissioners Barnier, Kroes and Vassiliou.

Letter from C4C and Supporting Stakeholders

 Response from Commissioners Barnier, Kroes and Vassiliou

The letter can be viewed and/or downloaded below.

C4C is a broad-based coalition of 26 European civil society, libraries, industry, consumers and creators that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We strongly support a balanced copyright regime that enables and encourages access to copyrighted works while preserving appropriate incentives and rewards for creators.

We wish to express our concerns with the proposed Orphan Works Directive in its current form, as we believe that without amendment it will fail to:

• Ensure that a growing part of Europe’s cultural heritage is accessible to future generations;
• Support a flexible and economically sustainable model that promotes large-scale public and private digitalization of our common cultural heritage;
• Create real social value and durably address the needs of all Europeans.

It is estimated [1] that approximately 30% of the collections of cultural institutions, comprising several hundreds of millions of works of all kinds are currently inaccessible to the public online under current European copyright law. It is believed that about 40% of in-copyright works become orphaned over time and at present they date from approximately the 1870s up to the 1990s. More are being created as the 21st century progresses. By their very nature orphan works are generally not currently commercially active, but many are of immense cultural, historical and research value.

Although the Commission has undertaken a number of initiatives over the past few years including a Green Paper on “Copyright in the Knowledge Economy” and several public consultations and expert committee reports, we are still waiting for a breakthrough that provides a sustainable solution to the orphan works problem. We believe that the current version of the Orphan Works Directive must be amended to ensure that it provides an effective solution to this situation and demonstrate the capacity of copyright to adapt to the digital environment and to the opportunities it offers.

To ensure the Orphan Works Directive will meet its goals and not undermine existing access-related provisions of the acquis, we urge the European Council and Parliament to amend the Directive to provide for the following:

Cross-border licensing

The proposed text fails to provide cross-border licensing. This is essential to ensure that systems facilitating mass digitisation projects of orphan works will not be limited to use solely within the silos of the Member State’s respective territories. This is also crucial for the success of Europeana, the compendium of the European Union’s digitization efforts. Limitation to territorial licensing is inadequate in the digital age where territoriality is largely irrelevant to information access, and will lead to a situation where users from different countries will have different and unequal access to the same European cultural heritage for no reason other than where they live.

Recommendation: The Directive should provide that an orphan work legitimately licensed in one Member State may be lawfully used on the same basis in all other Member States throughout the text.

Permitted acts of reproduction

The Orphan Works Directive unnecessarily restricts the purposes for which an orphan work can be reproduced. This approach fails to provide the flexibility needed for new uses to develop for the digital environment. In addition, this Directive seems to be attempting to limit by the back door many of the important uses of copyright works that are currently permitted under the Information Society Directive (2001/29/EC).

Recommendation: Article 6(b) of the Directive should be amended to ensure that no otherwise-permitted acts of reproduction will be limited, by deleting the second part of this Article starting with “for the purpose of…”.

Diligent search requirements

The diligent search requirements required by the Directive are far too restrictive. While we support the concept of diligent search, the requirements are too onerous as regards the timing and level of searching and should not be extended to works embedded or incorporated within the main work. There is a need for a reasonable, diligent search, performed in good faith (but without further detailed requirements) as the prerequisite for the use of an orphan work. Without this amendment, laborious manual searching will permit only occasional use of orphan works.

Recommendation: Recitals 12, 13 and 14 and article 1.3 of the Directive need to be amended to ensure that diligent search does not extend to embedded or incorporated works.

Record keeping requirements

Although we accept the need to keep records of searches and uses of works, the requirements in the Directive are overly bureaucratic, technically unrealistic and raise questions in regards to data protection and privacy laws.

Recommendation: Record-keeping should be limited to the maintenance of publicly-accessible records, without further technical specification.

Copyright limitations and exceptions

The current version of the Orphan Works Directive has the potential to undermine existing limitations and exceptions to copyright under the EU acquis. Specifically, it is striking that the Directive does not make clear that it should in no case prejudice the exceptions enumerated in Directive 2001/29/EC on the harmonisation of copyright in the information society.

Recommendation: Recital 4 and article 8 of the Orphan Works Directive should explicitly provide that the Directive is without prejudice to existing limitations and exceptions as established in Directive 2001/29/EC.

In addition to the points raised above, we would also like to draw attention to and align ourselves with the Trans-Atlantic Consumer Dialogue’s Resolution on Unlocking Access to Orphaned Works of June 2011 [2] and the memorandum on the Orphan Works Directive by Information Sans Frontières from 2011 [3].

We ask, and hope, that the Members of the European Parliament will make the necessary modifications to the Directive that we suggest to ensure that it will allow for a sustainable, effective, and durable solution to the Orphan Works problem fit for purpose in the 21st century.

[1] Recent studies on rights clearance and orphan works include:

Stratton, Barbara (2011). Seeking new landscapes – A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010. British Library/ARROW. See here and here.
Vuopala, Anna (2010). Assessment of the orphan works issue and costs for rights clearance. European Commission. See here.
Korn, Naomi (2009). In From The Cold: an assessment of the scope of ‘orphan works’ and its impact on the delivery of services to the public. Joint Information Systems Committee and the Collections Trust. See here.
Troll Covey, Denise (2005). Acquiring copyright permission to digitize and provide open access to books. Digital Library Federation Council on Library and Information Resources. See here.
[2] http://tacd.org/index2.php?option=com_docman&task=doc_view&gid=301&Itemid=40

[3] http://www.libereurope.eu/sites/default/files/ISF-OW-Council-111111.pdf