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Europæisk Panoramafrihed.

Review of the EU copyright rules

Public Consultation on the review of the EU copyright rules

http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm

Deadline er 5. marts 2014.

There is international Wikipedian-based efforts for a response, see:

https://meta.wikimedia.org/wiki/European_Commission_copyright_consultation

Suggestions[redigér]

(draft)

Wikimedia Denmark comments and suggests the following:

General comments[redigér]

I. Clarification on whether photos of images are consider original works of art and covered by copyright. The United States has had a key court decision, "Bridgeman Art Library v. Corel Corp.", which stated that photos of public domain images can not be protected by copyright, because the photos lack originality. The situation in Europe (or at least in Denmark) is not clear, and therefore the dissemination of public domain works, e.g., through photos of paintings of European masters, is hindered. A paragraph in a revised law stating that "photos and scans of two-dimensional images are not protected by copyright unless the original image is covered by copyright" is wanted. This would put EU law in harmonization with US case law. Given that many European-owned public domain works exist as public domain digital copies in the US, the digital copies may already exists on US server accessible to Europeans, meaning that European citizens may access such work, but cannot (for fear of a possible copyright lawsuit) themselves distribute such work.


II. Harmonization of freedom of panorama laws. European countries enjoy a variety of different rules regarding what can be photographed outdoor (public spaces), wrt. copyright laws. In some countries you are allowed to take photos of buildings and statues and use it commercially, while in other countries commercial photos will infringe the copyright of architects and sculpturers. The problem is not restricted to Europe: A photo taken by a work in public display in a European country with Freedom of Panorama can receive a US DCMA take-down notice if the photo is uploaded to a US server, e.g., the server that hosts the images of Wikipedia, because of the lack of Freedom of Panorama law in the US (this was apparently the case with the sculpturer Claes Oldenburg and Coosje van Bruggen). It is suggested the EU converge towards liberal Freedom of Panorama rules as found in the UK, Germany, Sweden etc. and push the US to adopt similar rules.


III. Issues with orphan works, e.g., old photos where the photographer is unknown. Historical photos where the photographer is unknown presents a problem if they are to be used in free content: A photo that can be identified as from, say the 1920s, cannot be used in free works because the photographer can have died much later, say 1970, extending the copyright to 2040 with the 70-years rule. This problem can affect archives that cannot release old photos, where they do not own the copyright or know the original copyright holder, fearing "submarine" copyright holders can appear and claim copyright. A suggestion for a paragraph is "Orphan works, where the creator is not or has not been generally known, is not protected by copyright after 50 years from the creation".


IV. "Open Knowledge Foundation Germany" has recently got a cease and desist order in relation to their website Frag den Staat (https://fragdenstaat.de/), which publishes documents obtained under Freedom Of Information. The German Federal Ministry of the Interior claims copyright. It seems reasonable that a citizen that has obtain Freedom of Information material can distribute the material to other citizens so they can join in an informed discussion. Free distribution of Freedom of Information material may also take a burden from the authorities that do need to handle multiple requests for the same material. Furthermore, free distribution of Freedom of Information material may also help the authorities to defend against critique for using copyright laws to restrict the access of citizens. A paragraph with "Public information released under Freedom Of Information does not fall under copyright" is wanted.


VI. Even though a single EU Copyright Title would make life easier for owners of copyrights and users of copyrighted material, there might be a wish to ensure local/national exemptions. You could have a common set of basic rules for all member states (e.g. the current rule of life + 70 years for copyright expiration) and still acknowledge that on a local/national basis there might be arguments for specific rules or exemptions.

Specific comments[redigér]

11. "Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorisation of the rightholder?" 
NO. Wikipedia references will typically make deep links to source specific statements in the encyclopedia, e.g., deep links to an news article. Wikipedia references do usually not link to illegal copies, e.g., YouTube videos not uploaded by the copyright holder.
12. "Should the viewing of a web-page where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user’s computer, either in general or under specific circumstances, be subject to the authorisation of the rightholder?" 
NO. Digital technologies' use of content inevitably produces a copy. If a webpage has been legally delivered to a user's computer, there should not be legal limitations that prohibit or limit technical improvements to how the device or software handles the content.
15. "Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?" 
Registration would reduce the burden of search for those wishing to reuse potentially copyrighted content. In many cases, the year of death of an author or the identity of a pen name (pseudonym) is not publicly known and a potential user cannot tell if an old work is copyrighted or not.
16. "What would be the possible advantages of such a system?" 
If the system enabled machine-oriented queries (e.g., checksums of image files), simple plagiarism could quickly be detected by comparing a work in question with the system content.
17. "What would be the possible disadvantages of such a system?" 
It is difficult to see how old archival data would be registered, so that it would be possible to determine when a piece of art are no longer covered by copyright. As there can be no compulsory registration system, the database cannot have full coverage. If a user queries the database to determine whether a work is a copyrighted work (by another person than stated) a result with no response can either be taken to mean that the work in question has no previous copyright or that the previous work has not been registered. This may limit the utility of the database.
20. "Are the current terms of copyright protection still appropriate in the digital environment?" 
For wider dissemination of European works in Wikipedia a reduction to 50 years after the death of the author would be appropriate.
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?" 
Especially the rules regarding freedom of panorama are a real problem.
23. "Should any new limitations and exceptions be added to or removed from the existing catalogue?" 
Especially public domain for government (national, regional and perhaps local) works would mean a lot. Alternatively some variation of CC-BY where attribution is required, but all use is granted in advance.