Orphan Works Directive adopted by the Council

The Orphan Works Directive, which has long been in the pipeline (see Eleonora's June blog post), has finally been adopted by the Council.

The Council's approval marks the final step in the legislative procedure meaning that the Directive will formally enter into force in the coming weeks further to its publication in the Official Journal of the European Union. Member States will then have two years to transpose it into national law.

Orphan Works are works which are protected by copyright but whose creators cannot be identified or found. The Commission memo, released yesterday, confirms that the new Directive on Orphan Works "will provide Europe's libraries, archives, film heritage institutions, public broadcasters and other organisations acting in the public interest with the appropriate legal framework to provide on-line cross-border access to orphan works contained in their collections." It goes on to say that "The Directive is a central element of the Commission's strategy to create an enabling framework for the use of intellectual property announced in its intellectual property strategy adopted in May 2011."

Commissioner Barnier has said that "Today's adoption of the Orphan Works Directive is a significant achievement in our efforts to create a digital single market. It will enable easy online access for all citizens to our cultural heritage. The swift and successful outcome of the legislative process and the broad consensus reached both in the Council and the Parliament prove that by working together we can agree on measures to ensure that the EU copyright rules are fit for purpose in the digital age. Alongside other achievements such as the European Memorandum of Understanding to facilitate the mass digitisation of out-of-commerce books, this Directive is one more step in making licensing and online access to cultural content easier."

As this blog reported in September, although the Commission's Vice-President Neelie Kroes, is in favour of the Orphan Works Directive and proposals relating to collective rights management, she has been very clear other issues exist beyond licensing and orphan works, and that "substantive copyright reform" is required.

A detailed analysis of the proposals behind the Orphan Works Directive can be found on the IPKat.

Copyright is stuck in the '90s: Neelie Kroes calls for change

Yesterday Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda gave a speech entitledCopyright and innovation in the Creative Industries addressing why, in a changing digital age, copyright reform is the right way to support the creative sector.  She began by saying that the debate on copyright often involves extreme positions, rigid views, and emotive arguments but that a pragmatic rather than philosophical approach is necessary.

The last major EU copyright instrument, the Copyright Directive (or the Information Society Directive), was adopted in 2001, but was based on Commission proposals dating back to 1998. Neelie Kroes reminds her audience of what has happened since then, saying that "In 1998, Mark Zuckerberg was 14. Today, almost one billion people around the world actively use Facebook, to share photos, videos, and ideas."

The thrust of her speech is that the world is changing rapidly. In 1998 the creative industries were controlled by large corporations whereas the internet has opened that space up to individuals who can publish their books, blogs, songs and art easily and globally.

Copyright does not just affect the creative industries (though those were the industries that is was created to protect), but has now spread to the business and pharmaceutical industries too. Neelie Kroes has talked in the past about her views on the use of data and text-mining, and yesterday she said that:

"Today, new scientific discoveries don't just come from new experiments, new drugs, new clinical trials: in fact, now, we can get new results by manipulating existing data. Data and text-mining techniques now lie behind a huge field of research, like human genome projects, potentially life-saving."

She goes on to say that pan-European companies should not have to struggle with 27 different sets of legislation, hinting that further harmonisation is required, and that the focus must be our economy, which cannot miss out on the opportunity for new growth.

The Commission has begun reviewing whether changes to EU legislation are necessary. Neelie Kroes has said that "For this, Michel Barnier is looking at whether and how the 2001 Copyright Directive needs to be adapted. I fully back his commitment to do that, set out in the Commission's IPR Strategy of last year."

The public seems divided on whether the gatekeepers to the creative industries are unjustifiably being trampled on or whether they are a near-obsolete concept. Whichever side of the line you fall on, it is hard to fault Neelie Kroe's view that:

"During this process of assessment we should leave passion aside and take a pragmatic view. Is our current system consistent and relevant within the real world?"

Neelie says ACTA is doomed

Neelie Kroes, the European Commissioner for the Digital Agenda has said that the Anti Counterfeiting Trade Agreement (ACTA) , signed by almost all EU member states – but not all – is likely to follow the US’s SOPA (Stop Online Piracy Act) into the dustbin of failed legislation saying “We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the internet” adding “there is a strong new political  voice, and as a voice for openness, I welcome it even if I do not always agree with everything it says on every subject … we are now likely to be in a world without SOPA and ACTA”. ACTA is currently awaiting review by the Court of Justice and EU Trade Commissioner Karel de Gucht had urged the EU Parliament to delay any formal ratification of ACTA until that happened, but it now looks like the whole process has stalled as member states (even those who had previously signed up) lose the political will to move the Agreement forward.

In the USA,critics of the U.S. government's antipiracy efforts have new ammunition to support claims that authorities are too eager to do the bidding of copyright owners. The Immigration and Customs Enforcement Bureau (ICE) seized Dajaz1.com, a music blog, in November 2010 and then held onto it for more than a year before returning the domain to the owners having repeatedly failed to produce evidence that the site had violated copyright laws. Now the EFF has picked up on the story blogging "The whole story is, in a word, appalling …. U.S. taxpayers and their representatives have an object lesson, if one were needed, in why the government should not be granted new IP enforcement powers and why we need to reconsider the inclusion of copyright infringement as a basis for civil seizure and forfeiture."

http://news.avn.com/articles/EU-Commissioner-Anti-Digital-Piracy-Law-is-All-But-Dead-474878.html

http://news.cnet.com/8301-1023_3-57428362-93/critics-say-feds-riaa-too-closely-linked-in-music-site-seizure/

Internet openness and copyright: Google and EU Commission agree

Sergey Brin

So far, this week has been very interesting as regards internet openness, also because of converging views from industry and politics.

Last Sunday, Google co-founder Sergey Brin had an interview with The Guardian, in which he talked about the challenges facing the principles of openness and universal access. These have been considered as cornerstones of the internet for three decades. Brin explained that there are "very powerful forces that have lined up against the open internet on all sides and around the world". Because of this, he is "more worried than [he has] been in the past ... It's scary." Threats to internet openness come from a combination of factors, these being (1) attempts by governments to control access and communication; (2) efforts by the entertainment industry to crack down on piracy; and (3) the rise of restrictive walled garden such as Facebook and Apple, which are busy controlling what software can be released on their platforms.

Neelie Kroes

Very similar concerns have been expressed today by Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, at the World Wide Web Conference in Lyon. Indeed, her opening remarks echoed those of Sergey Brin:

“The best thing about the Internet is that it is open. Indeed it's built on the idea that every device can talk to every other, using a common, open language. That's what explains its seemingly endless growth."

Commission's Vice-President further elaborated on this:

Does getting these in the mail
qualify as harassment?

"Only the other day, the Free Software Foundation wrote to me about open standards. With their letter they enclosed something I don't normally get in the mail, a pair of handcuffs. Because they're worried about 'digital handcuffs', and wanted to know if I am with them on openness. And the answer is yes. Let me show you, these handcuffs are not closed, not locked. I can open them if and when I want. That's what I mean by being open online, what it means to me to get rid of 'digital handcuffs' ... The benefits of openness are clear. And when it’s as simple as an oppressive government trying to turn off the Internet, it's clear that we need to do what we can to prevent that."

Cutting-edge techniques to change one's own mindset

In Kroes’s speech there was room for copyright, too. Perhaps a bit cryptically, but there was a reference to the need for new rules in the digital environment.

"Sometimes the problem is ancient, pre-digital rules that we need to cut back or make more flexible. Other times, openness actually flows from strengthening regulation. And sometimes it's not about changing the rules at all, but about changing a mindset. People need to realise: they don't have to look backwards to the constraints and habits of the past; they can look forward to the open opportunities of the future. But that can take time."

Speaking specifically of copyright, Ms Kroes confirmed what the Head of Unit - Copyright, DG Internal Market & Services, Maria Martin-Prat, mentioned last week at the Fordham IP Conference (see earlier 1709 Blog post here). In particular, the complicating licensing systems for copyrighted material in Europe is deemed to prevent Europeans from enjoying great content and discourage business innovation, thus failing to serve the creative people in whose name they were established.

"Indeed, whether you're talking about audiovisual works or scientific information, current systems don't respond nearly well enough to online realities. And these are both areas we are looking at, including through updating EU copyright rules. And through new recommendations on access to publicly funded scientific research results and data."

Having said this, Ms Kroes, in line with Mr Brin, added that openness does not come at the expense of privacy or safety, as fundamental rights, liberty and security are guaranteed together. Being born very suspicious, this blogger spotted here a reference to legislative initiatives which are now discussed in Europe and the US. In particular, it is not difficult to think of ACTA and all the bustle it has been creating worldwide. The reference can also include other ongoing initiatives, at the level of EU Member States and the US alike. As to the former, one may think of the debate in the UK over email and web use monitoring (here). As to the latter, it may not be difficult to spot a reference to new US proposed legislation (now that SOPA and PIPA are in disgrace) known as Cyber Intelligence Sharing and Protection Act, or CISPA.    

Stay tuned for the next moves.