European Commission copyright consultation/Limitations

European Commission copyright consultation
Limitations and exceptions in the Single Market

The European Commission is considering modernizing European copyright laws. To get feedback and input on this modernization, the Commission has published a series of questions, and is looking to interested stakeholders (like our community) to answer them. This is a vital opportunity to participate in a dialogue that could have a major impact on copyright laws and the future of the free knowledge movement. More background is available from the European Commission.

We would like to prepare a draft response here, as a collaborative experiment. If we wish to respond, it will need to be finalized before the end of January 2014 (see the proposed timeline).

Welcome to the discussion! Please help by answering the questions below.

Return to the table of contents.

Limitations and exceptions in the Single Market

Limitations and exceptions to copyright and related rights enable the use of works and other protected subject-matter, without obtaining authorisation from the rightholders, for certain purposes and to a certain extent (for instance the use for illustration purposes of an extract from a novel by a teacher in a literature class). At EU level they are established in a number of copyright directives, most notably Directive 2001/29/EC^[1].

Exceptions and limitations in the national and EU copyright laws have to respect international law^[2]. In accordance with international obligations, the EU acquis requires that limitations and exceptions can only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interest of the rightholders.

Whereas the catalogue of limitations and exceptions included in EU law is exhaustive (no other exceptions can be applied to the rights harmonised at EU level)^[3], these limitations and exceptions are often optional^[4], in the sense that Member States are free to reflect in national legislation as many or as few of them as they wish. Moreover, the formulation of certain of the limitations and exceptions is general enough to give significant flexibility to the Member States as to how, and to what extent, to implement them (if they decide to do so). Finally, it is worth noting that not all of the limitations and exceptions included in the EU legal framework for copyright are of equivalent significance in policy terms and in terms of their potential effect on the functioning of the Single Market.

In addition, in the same manner that the definition of the rights is territorial (i.e. has an effect only within the territory of the Member State), the definition of the limitations and exceptions to the rights is territorial too (so an act that is covered by an exception in a Member State "A" may still require the authorisation of the rightholder once we move to the Member State "B")^[5].

The cross-border effect of limitations and exceptions also raises the question of fair compensation of rightholders. In some instances, Member States are obliged to compensate rightholders for the harm inflicted on them by a limitation or exception to their rights. In other instances Member States are not obliged, but may decide, to provide for such compensation. If a limitation or exception triggering a mechanism of fair compensation were to be given cross-border effect (e.g. the books are used for illustration in an online course given by an university in a Member State "A" and the students are in a Member State "B") then there would also be a need to clarify which national law should determine the level of that compensation and who should pay it.

Finally, the question of flexibility and adaptability is being raised: what is the best mechanism to ensure that the EU and Member States’ regulatory frameworks adapt when necessary (either to clarify that certain uses are covered by an exception or to confirm that for certain uses the authorisation of rightholders is required)? The main question here is whether a greater degree of flexibility can be introduced in the EU and Member States regulatory framework while ensuring the required legal certainty, including for the functioning of the Single Market, and respecting the EU's international obligations.

Question 21

21) Are there problems arising from the fact that most limitations and exceptions provided in the EU copyright directives are optional for the Member States?

Yes

Dimi z (talk) 20:23, 8 January 2014 (UTC)[reply]
--Nemo 10:07, 11 January 2014 (UTC)[reply]
NaBUru38 (talk) 14:30, 11 January 2014 (UTC)[reply]
--Aktron (talk) 18:02, 15 January 2014 (UTC)[reply]
--Sapfan (talk) 17:39, 17 January 2014 (UTC)[reply]
Dominikmatus (talk) 16:21, 22 January 2014 (UTC)[reply]

No

Your name here

No opinion

Your name here

Comments

Instructions: If yes, please explain by referring to specific cases. If no, please explain.

The most important limitation for us left for Member State to regulate is Freedom of Panorama (i.e. architectural works and sculptures permanently positioned in public spaces). It should be made universal throughout the EU. --Dimi z (talk) 20:25, 8 January 2014 (UTC)[reply]
National authorities may ignore these restrictions, thus limiting the right of their citizens to access and use works. --NaBUru38 (talk) 14:30, 11 January 2014 (UTC)[reply]
The biggest problem is that we need copyright to be simple in order to be effective. If we want to have legal certainty for all of us, we should make it as easy as possible. Right now the internet works without borders - yet the content stored on servers has to follow the legal norms of the country where the server is physically placed. But all the users of this content or nowadays even authors and co-authors can view it from any country. This can be a reason for internet censorship, server moving, legal threats based on absurd cases, when dealing if this symbol is legal or illegal in this or that country. As the internet is one, so should be copyright. --Aktron (talk) 18:02, 15 January 2014 (UTC)[reply]
A more unified law across EU countries makes it easier to share information across the borders. So, it would make sense to extend e.g. freedom of panorama or exceptions for libraries to all EU countries. However, let's also be careful that this does not lead to scrapping or limiting these exceptions across all EU countries! So far, whenever the EU tried to unify rules, they always became stricter. --Sapfan (talk) 17:39, 17 January 2014 (UTC)[reply]

Proposed Foundation answer

Based on the comments above, with particular inspiration from User:Aktron's comment about simplicity, and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:46, 28 January 2014 (UTC)[reply]

Yes.

The Copyright in the Information Society Directive leaves many legal exceptions and limitations entirely up to the Member States. This creates complexity that discourages creativity, when it should aim for a simplicity that encourages creativity. For example, the inconsistent protections on the depictions of architectural works creates a maze of legal regulations which makes potential copyright infringers out of many Europeans when they share their holiday photos on Facebook or through Wikimedia Commons. A similar maze of legal exceptions and limitations can be found when looking at government produced works, making their use and distribution difficult, even by the taxpayers who paid for the creation of those works.

Question 22

22) Should some/all of the exceptions be made mandatory and, if so, is there a need for a higher level of harmonisation of such exceptions?

Yes

No

Your name here

No opinion

Your name here

Comments

Instructions: If yes, please explain by referring to specific cases. If no, please explain.

Yes, Freedom of Panorama (Directive 2001/29/EC - Article 5, Point 3(H)) should be a universal limitation. --Dimi z (talk) 20:26, 8 January 2014 (UTC)[reply]
- +1. Probably others too. --Nemo 10:07, 11 January 2014 (UTC)[reply]
- I agree. --Sapfan (talk) 17:41, 17 January 2014 (UTC)[reply]
- +1 ~ Seb35 [^_^] 00:36, 28 January 2014 (UTC)[reply]
Non-commercial use should be free since the first day a work is published. --NaBUru38 (talk) 14:31, 11 January 2014 (UTC)[reply]
- Non-commercial use doesn't allow us to use the content on Commons and most WP language versions. We need the full limitaiton as currently available in 14 of the 28 Member States. --Dimi z (talk) 18:00, 27 January 2014 (UTC)[reply]

Proposed Foundation answer

Based on the comments above and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response. (This removes government works, suggested by the EU movement groups, because it is covered in the next question.) —LVilla (WMF) (talk) 08:48, 28 January 2014 (UTC)[reply]

Yes.

Key exceptions for Wikimedians include harmonization of Information Society Directive Article 5, Point 3(H), which we refer to as "Freedom of Panorama", and revision of the Orphan Works Directive to allow unrestricted re-use of the content it covers.

Question 23

23) Should any new limitations and exceptions be added to or removed from the existing catalogue? Please explain by referring to specific cases.

Responses

[Open question]

Yes, all government works should be in the public domain. --Dimi z (talk) 20:26, 8 January 2014 (UTC)[reply]
Or CC-BY or equivalent. --Nemo 10:07, 11 January 2014 (UTC)[reply]
Or not be subject to copyright law (as in the case in some jurisdictions). And when I say "all works", I mean it. Not just some, not just logos or photographs — every single work created by government or its agencies should be either in the PD or not copyrighted. That they might be confidential or with limited access should not influence their copyright status (or lack of copyright). odder (talk) 11:04, 11 January 2014 (UTC)[reply]
And, of course, this should apply to all kinds of government — both on a national and a local level. odder (talk) 11:04, 11 January 2014 (UTC)[reply]
With the exception of national security (for instance, military plans) and individual privacy (data on a particular person), all materials produced by governments of any kind or paid by governments of any kind should be in public domain. Documents that cannot be made public (as explained) cannot be subject to copyright, so when the reasons that make them unpublishable disapear they become immediately public domain. B25es (talk) 18:53, 11 January 2014 (UTC)[reply]
- @B25es: Why do you think military plans and other secure material should not be released into the public domain? As I said above, their dissemination, use and access to them can be defined (limited) by specific national or local laws, without changing their copyright status. odder (talk) 12:38, 27 January 2014 (UTC)[reply]

I don't think that official secrets or data protection have anything to do with copyright. In the United Kingdom they certainly exist independently under separate pieces of legislation. As far as I am aware, the Official Secrets Acts 1911 to 1989 and the Data Protection Act 1998 contain no references to copyright. James500 (talk) 00:26, 4 February 2014 (UTC)[reply]

Good idea. Let's include the governmental work. --Sapfan (talk) 17:42, 17 January 2014 (UTC)[reply]
Other point partly coming from the copyright registration above (which is an opt-in mechanism): add an exception or a stronger mechanism to opt-out of the copyright laws to let the authors, even if they are not civil servants or creating on behalf of the government, not to be forced to put their works under protection. ~ Seb35 [^_^] 09:00, 28 January 2014 (UTC)[reply]
I agree that all government produced works should be in the public domain. I agree that this should apply to works created at all levels of government. And the works should be in the public domain worldwide. And the EU should refuse to recognise any copyright in works produced by governments outside the EU as well (there is precedent for this in the form of the edict of government rule in the US which applies to foreign laws as well as local ones). James500 (talk) 00:01, 4 February 2014 (UTC)[reply]

Proposed Foundation answer

Based on the comments above, which are unanimously in favor of an exception for government-produced works, and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:49, 28 January 2014 (UTC)[reply]

An exception excluding government produced works from copyright protection should be added to the existing catalog of exceptions in all Member States. This would make those works part of the public domain and boost innovation, information and creativity. Countries/institutions that have a such an exception (most notably the USA) are widely perceived to outperform the EU in these crucial areas, enabling creative reuse by private industry, by other government entities, and by citizens.

Question 24

24) Independently from the questions above, is there a need to provide for a greater degree of flexibility in the EU regulatory framework for limitations and exceptions?

Yes

I was unsure but the COMMUNIA answer convinced me. --Nemo 22:34, 1 March 2014 (UTC)[reply]
Your name here

No

Your name here

No opinion

Your name here

Comments

Instructions: If yes or no, please explain why.

...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:51, 28 January 2014 (UTC)[reply]

No.

In order to encourage creativity and reduce barriers to the free flow of information, we strongly recommend more harmonisation across Europe. All further steps should be made with this in mind. Therefore any proposed new flexibility must be scrutinised under this aspect, since flexibility often leads to inconsistency.

Question 25

25) If yes, what would be the best approach to provide for flexibility? (e.g. interpretation by national courts and the ECJ, periodic revisions of the directives, interpretations by the Commission, built-in flexibility, e.g. in the form of a fair-use or fair dealing provision / open norm, etc.)? Please explain indicating what would be the relative advantages and disadvantages of such an approach as well as its possible effects on the functioning of the Internal Market.

Responses

[Open question]

...

Question 26

26) Does the territoriality of limitations and exceptions, in your experience, constitute a problem?

Yes

No

Your name here

No opinion

Your name here

Comments

Instructions: If yes or no, please explain why and specify which exceptions you are referring to.

Territoriality generates friction, costs and lost opportunities (including cultural production), especially for cross-border activities like anything happening on the Internet. See our proposal on a Single EU copyright title for a solution.
…

Proposed Foundation answer

Based on the comments above and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:52, 28 January 2014 (UTC)[reply]

Yes.

Territoriality of exceptions is a major problem for us, as the operator of the Wikimedia websites, and we expect that it is a problem for every website that aims to target all of Europe. It makes running pan-European projects more time-consuming, drives up costs, and results in smaller markets.

Question 27

27) In the event that limitations and exceptions established at national level were to have cross-border effect, how should the question of “fair compensation” be addressed, when such compensation is part of the exception? (e.g. who pays whom, where?)

Responses

[Open question]

Fair compensation should be abolished, because it only adds costs for all authors and users while only benefiting market incumbents for their past work via monopoly structures. It serves no public purpose and is only a detriment to cultural advancement.
...

Proposed Foundation answer

Based on what I believe is User:Nemo bis's comment above, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 09:05, 28 January 2014 (UTC)[reply]

Fair compensation should be abolished. It adds costs to all citizens, primarily to the benefit of market incumbents who leveraged their position to create statutory benefits for themselves, without a compelling public purpose.

Next set of questions >>

References

↑ ^{Plus Directive 96/9/EC on the legal protection of databases; Directive 2009/24/EC on the legal protection of computer programs, and Directive 92/100/EC on rental right and lending right.}
↑ ^{Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (1971); Article 13 of the TRIPS Agreement (Trade Related Intellectual Property Rights) 1994; Article 16(2) of the WIPO Performers and Phonograms Treaty (1996); Article 9(2) of the WIPO Copyright Treaty (1996).}
↑ ^{Other than the grandfathering of the exceptions of minor importance for analogue uses existing in Member States at the time of adoption of Directive 2001/29/EC (see, Art. 5(3)(o)).}
↑ ^{With the exception of certain limitations: (i) in the Computer Programs Directive, (ii) in the Database Directive, (iii) Article 5(1) in the Directive 2001/29/EC and (iv) the Orphan Works Directive.}
↑ ^{Only the exception established in the recent Orphan Works Directive (a mandatory exception to copyright and related rights in the case where the rightholders are not known or cannot be located) has been given a cross-border effect, which means that, for instance, once a literary work – for instance a novel – is considered an orphan work in a Member State, that same novel shall be considered an orphan work in all Member States and can be used and accessed in all Member States.}

[ftn36-1] {Plus Directive 96/9/EC on the legal protection of databases; Directive 2009/24/EC on the legal protection of computer programs, and Directive 92/100/EC on rental right and lending right.}

[ftn37-2] {Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (1971); Article 13 of the TRIPS Agreement (Trade Related Intellectual Property Rights) 1994; Article 16(2) of the WIPO Performers and Phonograms Treaty (1996); Article 9(2) of the WIPO Copyright Treaty (1996).}

[ftn38-3] {Other than the grandfathering of the exceptions of minor importance for analogue uses existing in Member States at the time of adoption of Directive 2001/29/EC (see, Art. 5(3)(o)).}

[ftn39-4] {With the exception of certain limitations: (i) in the Computer Programs Directive, (ii) in the Database Directive, (iii) Article 5(1) in the Directive 2001/29/EC and (iv) the Orphan Works Directive.}

[ftn40-5] {Only the exception established in the recent Orphan Works Directive (a mandatory exception to copyright and related rights in the case where the rightholders are not known or cannot be located) has been given a cross-border effect, which means that, for instance, once a literary work – for instance a novel – is considered an orphan work in a Member State, that same novel shall be considered an orphan work in all Member States and can be used and accessed in all Member States.}

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