Groep Groenboek/en/Reaction

Dear members of the Commission of the European Communities,

Vereniging Wikimedia Nederland (Association Wikimedia Netherlands) would like to use this opportunity to react on the green paper on Copyright in the Knowledge Economy.

In the green paper you ask several specific questions, and you invite to comment on other issues that are touched in the green paper. Wikimedia Nederland would like to accept this invitation. First we will elaborate on our role and give some considerations on the existing legislature.

Vereniging Wikimedia Nederland and her copyright policy

Vereniging Wikimedia Nederland is an association under Dutch law founded in 2006 and has the objective to collect, disclose, secure and promote free and/or freely accessible information of any shape. To reach this objective the association cooperates closely with the volunteers of the Wikimedia projects. Members of the association are generally also active on these projects, such as Wikipedia (free encyclopedia), Wikibooks (free books), Wikinews (free news), Wikisource (free sources) and Wikimedia Commons (free photos and other media). Vereniging Wikimedia Nederland is a recognized chapter of the Wikimedia Foundation, which is incorporated in the United States of America. Also this foundation has a policy directed towards the uptake of free licenses.

Free information in this context does not mean that the information is for free (gratis) as such. Free should be explained in the sense of the GNU Free Documentation License (GFDL), which means that the information can be re-used freely, however with attribution of the main authors. Authors using a free license such as the GFDL give everybody the right to copy, change and use the work somewhere else, et cetera, under the provision that the derivative is published under the same license. To develop openness and interoperability work is in progress to harmonise existing free licenses, e.g. those developed by Creative Commons.

Wikipedia, as one of the projects of the Wikipedia Foundation, is in this sense a freely licensed encyclopedia.

Considerations on the current copyright legislation

The green paper uses the existing copyright legislation as a starting point, and based on that, signals several possible bottle-necks. Especially the differences in national legislation that can lead to legal uncertainty are treated. In our view, attention should also be given to some more fundamental questions on the copyright. In that respect, the green paper states in paragraph 1.2 (the scope of the green paper): "A high level of copyright protection is crucial for intellectual creation".

At the creation of the copyright legislation a high level of protection was indeed deemed as a fundamental importance for intellectual creation. In the current society, however, this no longer holds true in all cases. A growing number of authors (amongst which musicians and writers) renounce their copyright on created works, either completely or in part. This occurs not only on the internet, where more and more works are released under a free license (e.g. Wikipedia, Wikipedia Commons, Flickr, Tribe of Noise), but also in more traditional media such as books.

This does not mean that these authors stop creating works; on the contrary. The (partially) renounced copyright gives these authors a security that their works will have a long lifetime. Through the easy accessibility and quick spreading via the internet authors reach a much larger audience then via traditional publishers.

Also the lively open software industry has shown that the use of a free license can be interesting for the producers.

Other societal trends

Public directed media

There is also a strong trend within traditional media, such as newspapers and magazines, that they provide their content for free. More and more often, they receive their income through advertisement instead of from paying subscribers. The websites of many newspapers display an abundance of advertisements. The consumers of these products therefore no longer pay for the content of these websites, but only for the transport of the information to their home or workstation. Many television and radio shows can also be viewed and listened to for free via the internet. The interests of the users of the shows might be much larger than the interests of the producers. A free use of newspaper articles, television shows etc. leads to a further spread of information and therewith a better use of the relevant parts of these. Also, different works, which traditionally only had commercial intentions, are increasingly spread by the authors for free (think for instance of the cd's of Radiohead and Marillion).

Governments

Harmonisation also lacks in policies to release public sector information. For example, the website of the European Commission states:

© European Communities, 1995-2008

Reproduction is authorised, provided the source is acknowledged, save where otherwise stated.

Where prior permission must be obtained for the reproduction or use of textual and multimedia information (sound, images, software, etc.), such permission shall cancel the above-mentioned general permission and shall clearly indicate any restrictions on use.

European governments could, in this perspective, take an example from the American government. In the United States of America all information that is collected by the federal government is freely available in the public domain (free of any copyright). In the European Union this is not the case. As a consequence, for example, photos made by NASA can be found everywhere on the internet, in newspapers, books and magazines, while photos by ESA are barely spread. This influences public opinion: NASA is much more known and perhaps also more popular than ESA. In projects such as Wikipedia this is also reflected. Even on the French language Wikipedia the article on NASA is much more in depth, interesting and better illustrated then the article on ESA (as of October 10, 2008).

Collaboration

The current information society is more and more directed towards collaboration. The traditional copyright is not in all respects fit for authors to cooperate effectively. The use of free licenses is therefore necessary, as becomes clear in the Wikimedia projects, where articles are being translated under the same free licenses and a shared media database has been set up (Wikimedia Commons). The applicable copyright within these projects remains unclear in some respects, not only because the legislation differs between the EU member states themselves, but also because it differs from copyright legislation in countries outside the European Union, such as the United States of America.

The traditional author?

It seems that in the green paper a separation is made between traditional authors and and "amateur" authors of for instance weblogs. For the first category a high level of protection is suggested. This, however, is an artificial separation: both categories consist of authors and deserve a similar treatment. After all, distinction between an amateur and a professional painter has never been made, so a similar distinction between types of author does not seem logical. Moreover, one person can operate in different roles. A scientist can publish on a weblog, publish a book and publish in scientific magazines.

Because the green paper takes the existing copyright legislation as a starting point, the researcher/student and the author seem to be located in an opposing position, where both would have conflicting interests. This seems to ignore the fact that the researcher/student is generally also an author. The legal construction protecting authors restricts the same persons in their role as a researcher/student. A very careful consideration of author interests is therefore required: copyright protection of one author is not necessarily in the best interest of all authors, especially not in the best interest of the authors which are researcher/student themselves. For the development and affordability of education it would be beneficial if more works were published under a more limited copyright.

The view of Wikimedia Nederland

Given the above considerations and the objectives of Wikimedia Nederland the main point for copyright legislation should be:

the maintenance, development and distribution of intellectual creations

Copyright legislation should benefit the development of knowledge and culture and progress in general. The copyright legislation should not rest upon exclusive rights but should be aimed at co-operation and sharing.

A new economic model is arising in which exclusive rights are no longer in all cases beneficial. On the contrary, exclusive rights might be counter-productive. The sharing of knowledge and culture is of fundamental importance to contemporary intellectual creations. Therefore, this perspective does not, per se, involve the protection of the author.

The above does not imply that Wikimedia Nederland wants to introduce many limitations on copyright laws. In particular Wikimedia does not advocate limiting existing rights. All Wikimedia projects respect existing rights, which has thorough effects on the information available on the Wikimedia projects.

All information and all media-files in these projects are made available under free licenses that allow re-use and modification without authorisation. Wikimedia Nederland only wishes to emphasise that the protection of the interests of authors should be balanced against other important public interests, such as good and affordable education and the fundamental right of everyone to development.

Balance and options

Vereniging Wikimedia Nederland notices that, in regard to the interests of stakeholders, the phrase 'the right balance' is mentioned several times in the green paper. What this balance should be however is not described. The paper seems to suggest that a 'right balance' exist if the author's rights are sufficiently protected. Wikimedia Nederland believes that the interests of the user are not sufficiently considered in this context, and that there is no (longer a) 'right balance' at all if the existing rights of the user are limited through adaptations in copyright legislation.

Wikimedia Nederland does however recognize the importance of stimulating authors’ awareness of the options they have regarding the protection of their works, especially the choices existing between on the one hand completely releasing them into the public domain and full exclusivity on the other hand. Besides that, it might be logical to release the work into the public domain for certain specific authors automatically. This could be the case, for instance, for authors working in public service.

The current copyright legislation demands for authors to actively make it known that he or she would like to give others the right to copy or redistribute his or her work. The author can herewith extend the limitations of the copyright which are already provided for in the legislation. As far as the copyright of their works are concerned, a number of authors have a (financial) interest in the widest dissemination possible.

As it is, in general, many authors will however probably not even realize they have a choice to release the work under a free license, nor are they aware of the existing legal possibilities between exclusive exploitation and releasing their work into the public domain. The latter is not even possible within some continental European jurisdictions.

Questions from the Green Paper

The reactions by Wikimedia Nederland to the specific questions in the green paper are listed below. The questions themselves are in italic.

General Issues

(1) Should there be encouragement or guidelines for contractual arrangements between right holders and users for the implementation of copyright exceptions

This question prepositions an assumption which is on strained terms with the goal of developing a knowledge society. Developing a knowledge society leans heavily on people and organisations that are simultaneously right holders and re-users and choose to share work on an equal footing. Re-users of works are as entitled to first-rate legal protection as right holders are. Basing regulation on relations that stem from the industrial age works contrarily to the goal of developing the knowledge society, because inhibiting re-use of works slows down the desired diffusion and development of knowledge. This not only affects the substance of copyright, but touches the way in which it is shaped and enforced as well. Copyright does not just regulate relations between professional parties and passive consumers or amongst professional parties. More and more ordinary citizens mix 'creating' and 're-using' content. Copyright can only retain its legal shape if it's recognizable to this kind of users, an issue that Wikimedia Foundation projects have to deal with on a daily basis.

(2) Should there be encouragement, guidelines or model licenses for contractual arrangements between right holders and users on other aspects not covered by copyright exceptions?

In any case we would plead for the encouragement of free licenses. Development of free licenses such as GFDL and Creative Commons is currently taking place without direct governmental intervention or regulation. This is a flexible modus operandi which respects that the success of such a license cannot be enforced. It is however contingent upon acceptation by creators and re-users all over the world. It is fully plausible that this modus operandi will lead to closer cooperation on licensing by organisations such as the Free Software Foundation and Creative Commons.

Publicly financed material being available under a fitting free license would be an important stimulating factor for the knowledge economy, especially for small-scale businesses. In this way, innovative companies would be able to use existing material as a basis for a new product or service. The same goes for private persons, for example within the projects of the Wikimedia Foundation. An example of this kind of development would be the availability of mapping resources for everyone under a free license.

Reserving copyrights on publicly financed works should only be possible as an exemption, to be expressly decided upon by parliaments on a case-by-case basis. Employees of publicly financed organisations should have the fundamental right to publish their work under a free license.

(3) Is an approach based on a list of non-mandatory exceptions adequate in the light of evolving Internet technologies and the prevalent economic and social expectations?

The Green Paper itself already mentions the growth of cross-border information exchange. For the Wikimedia projects, which are not limited to national borders, these differences in national legislation are often hard to cope with. A reasonable solution would be that if an expression is legally published somewhere in the European Union under a copyright limitation, its use of that on international projects cannot be contested anywhere else in the European Union.

(4) Should certain categories of exceptions be made mandatory to ensure more legal certainty and better protection of beneficiaries of exceptions?

(5) If so, which ones?

Limitations on the copyright are required with respect to:

• Works created by or in contract with public service institutions
• Orphaned works
• Works that exist in the public space (panorama right).

Exceptions: Specific issues

(6) Should the exception for libraries and archives remain unchanged because publishers themselves will develop online access to their catalogues?

The interests of libraries and archives can concur with those of Wikimedia projects. Wikimedia contributors and readers are also users of libraries and archives and, in that respect, have an interest in their ability to function properly. Libraries and archives have a broad public function. It is incorrect to approach their task only from the industrial society, which is characterized by a clear separation between a vast number of consumers and a selected group of producers which have a main interest in the exclusion of use without payment. The knowledge society is, for an important part, supported by people and organizations which are both consumer and producer and see an interest in the free sharing of information. They are equally entitles to high quality legal protection.

(7) In order to increase access to works, should publicly accessible libraries, educational establishments, museums and archives enter into licensing schemes with the publishers? Are there examples of successful licensing schemes for online access to library collections?

Due to a lack of harmonisation, the present situation can lead to confusing situations on allowed re-use of material that falls into the public domain due to expiration. At this point active public education is desired. There have been cases in which public institutions, referring to the copyright, requested payment for the mere reproduction of works which are no longer protected by copyright itself. For this type of works license arrangements are therefore not necessary.

In view of the public function that libraries, educational organisations, museums and archives have in the knowledge society, it is of great interest that these institutions and their users also create some space for the use and re-use of their material. One might think of metadata, citations, article summaries, images in limited resolution or samples, that could be released into the public domain or under a free license. This is even more important when one thinks of material that is already part of the public domain. It is neither logical nor acceptable that publicly financed institutions make unprotected material practically inaccessible to the public.

Projects such as Wikisource are explicitly directed towards the disclosure of important source material. As a matter of fact, the free licenses used in these environments are examples of the disclosure of information. Often further efforts are required to make a work really accessible. License arrangements by publishers, which practically exclude this type of projects, are therefore counter-productive.

(8) Should the scope of the exception for publicly accessible libraries, educational establishments, museums and archives be clarified with respect to:

(a) Format shifting;

(b) The number of copies that can be made under the exception;

(c) The scanning of entire collections held by libraries;

(9) Should the law be clarified with respect to whether the scanning of works held in libraries for the purpose of making their content searchable on the Internet goes beyond the scope of current exceptions to copyright?

(10) Is a further Community statutory instrument required to deal with the problem of orphan works, which goes beyond the Commission Recommendation 2006/585/EC of 24 August 2006?

Yes. Copyright also intends to facilitate the spread of works. In this respect current regulation is counter-productive. This leads to works being forgotten, which does not serve the interests of creators as well. A solution would be to attach the automatic copyright to a shorter term of protection and make extension dependent upon registration.

There should be a procedure, by which after sufficient research it would be easily possible to license republication of an orphan work (a work of which no copyright holder is known). If a 'share-alike' clause is applied, the copyright holder, if he/she would show up again after all, could even benefit from this: if the work generates more attention in this way, the chance would exist that some parties would like to use it as a part of exclusive productions, and would approach this copyright holder for a license.

The extension of the protection term of copyright enlarges the problem of orphan works. Due to the longer term, the effort required to make the work accessible to current users increase because of changes in fields such as spelling and technology. At the same time it becomes harder and harder to find the copyright holder. Cultural heritage that is less popular therefore runs the risk of becoming practically inaccessible. The advantages that a small group of copyright holders would experience from a longer term of protection do not compensate for the societal disadvantage of the inaccessibility of a much larger number of less known works.

(11) If so, should this be done by amending the 2001 Directive on Copyright in the information society or through a stand-alone instrument?

Above all, there should be legal certainty for normal citizens which act bona fide. On this matter, the level of enforcement is often more important than the actual legislation.

(12) How should the cross-border aspects of the orphan works issue be tackled to ensure EU-wide recognition of the solutions adopted in different Member States?

If a work is legally published somewhere in the European Union on a cross-border medium, it should not be possible to challenge this in another member state.

The exception for the benefit of people with a disability

(13) Should people with a disability enter into licensing schemes with the publishers in order to increase their access to works? If so, what types of licensing would be most suitable? Are there already licensing schemes in place to increase access to works for the disabled people?

The power of free licenses allowing derivative works is that they allow access towards people with a handicap in a non-discriminatory way towards expressions of the work. This leads to an extensive package, which can be used by different providers and technologies in free competition. The licenses on the Wikimedia projects allow everybody to adapt them towards the needs of specific target groups. As long as this result is again available under a free license, this can be exploited both ideally as commercially.

(14) Should there be mandatory provisions that works are made available to people with a disability in a particular format?

A free license that allows derivative works is much more efficient and sustainable than the mandatory prescription of formats.

(15) Should there be a clarification that the current exception benefiting people with a disability applies to disabilities other than visual and hearing disabilities?

A free license that allows derivative works is much more efficient and sustainable than the listing of handicaps.

(16) If so, which other disabilities should be included as relevant for online dissemination of knowledge?

(17) Should national laws clarify that beneficiaries of the exception for people with a disability should not be required to pay remuneration for using a work in order to convert it into an accessible format?

(18) Should Directive 96/9/EC on the legal protection of databases have a specific exception in favour of people with a disability that would apply to both original and sui generis databases?

Dissemination of works for teaching and research purposes

(19) Should the scientific and research community enter into licensing schemes with publishers in order to increase access to works for teaching or research purposes? Are there examples of successful licensing schemes enabling online use of works for teaching or research purposes?

Education and research are excellent examples of areas in which the separation between copyright owners and content users is not clear. Teachers are historically also the producers of teaching material. Education therefore has a large interest in leeway offered to end users (see question 24). Not only Wikipedia and Wiktionary are built upon free licenses, but also Wikibooks and Wikiversity which are specifically targeted towards educational goals. This approach also contributes to the empowerment and engagement of people around the world to collect and develop educational content under a free content license, one of the goals of the Wikimedia Foundation. The advantage of free licenses is that they avoid the excessive bureaucracy arising from the demand of remunerations. Where these are used, it seems fair to tie them to a reasonable time frame, after which the work would become freely usable.

(20) Should the teaching and research exception be clarified so as to accommodate modern forms of distance learning?

(21) Should there be a clarification that the teaching and research exception covers not only material used in classrooms or educational facilities, but also use of works at home for study?

(22) Should there be mandatory minimum rules as to the length of the excerpts from works which can be reproduced or made available for teaching and research purposes?

(23) Should there be a mandatory minimum requirement that the exception covers both teaching and research?

User-created content

(24) Should there be more precise rules regarding what acts end users can or cannot do when making use of materials protected by copyright?

No. The development of precise rules will lead to undue formalisation that in itself is detrimental to the knowledge economy. Within continental European copyright there should be an open system of limitations for end users, like within the Anglo-American fair use doctrine. The legal uncertainty caused by this difference impedes the world wide collaboration of end users. In any case there should be a provision by which the legislature can declare null and void any unilateral contractual clause that unduly restricts public interests also protected by copyright.

A possible approach might be to broaden existing copyright limitations, like these regarding citation and reproduction of objects in the public domain. To enhance legal certainty it would be advisable to stimulate the development of community standards and procedures ("wizards") that, without risking liability for breaching copyright, foster collaboration and re-use.

(25) Should an exception for user-created content be introduced into the Directive?

This question prepositions an assumption that disagrees with the development of the knowledge society. This development relies to a large extent on people and organisations which are concurrently rights holder and end user, choosing equality as a base for sharing their works. Some results of these forms of collaborative peer production, for instance some Wikimedia projects, have shown to meet or even surpass professional products and distribution methods of traditional publishers. A future-oriented framework for copyright protection should also foster these of kind of collaborations and not limit itself to the traditional creator-consumer dichotomy. Stakeholders in collaborative peer production projects do however have an interest in an expansion of the rights of re-use as presently permitted in legal limitations on copyright (see question 24).

Concluding

The changes in methods by which works are created and in the public perception of copyright require a different approach of the copyright legislation, that should foster the conservation, development and dissemination of knowledge and culture. Copyright legislation should give a positive impulse to the development of these goals. The exclusivity upon which current copyright legislation is based is no longer always beneficial and can even be counter-productive. Copyright legislation should be based less upon exclusivity and more upon the sharing and development of material amongst authors. The sharing of knowledge and culture is of fundamental importance towards the knowledge society.

Signature

A translation in English [OR WHATEVER LANGUAGE] of this reaction has been attached.

Vereniging Wikimedia Nederland hopes to have contributed usefully towards the discussion on this topic within the European Union.

With kind regards,

Ellywa Chair of Vereniging Wikimedia Nederland

This reaction has been created in cooperation with the members of "Groep Groenboek", and is available under the GNU Free Documentation License (GFDL). The content of this letter can therefore be used without prior permission if the derivative also falls under the GFDL and if the main authors are mentioned. The license can be found here: http://www.gnu.org/copyleft/fdl.html . The authors of this letter are to be found in the history of the article Groep Groenboek on the Wikimedia Nederland website, see http://nl.wikimedia.org/w/index.php?title=Groep_Groenboek&action=history .