Leaked Copyright Directive by the European Commission
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We have collected links to the leaked directive, impact assessment and an offical communication on copyright, set to be published this month, and summarised the key articles. The directive is planned as an addition instead of an amendment to existing EU copyright legislation and does not hold many new regulations concerning open access and digitisation for cultural heritage institutions.

The leaked Directive of the European Parliament and the European Council on copyright in the Digital Single Market is accompanied by an Impact Assessment on the Modernisation of EU Copyright Rules and an official communication titled Promoting a fair and efficient European copyright-based economy in the digital single market.

Instead of a new copyright legislation the directive will add to existing copyright rules, namely the Information Society Directive, Info-Soc-RL from 2001, this means existing EU legislations will not be re-opened for discussion. The draft contains three main exceptions that are now compulsory for all EU Member States. All previous exceptions have been optional for the Member States, which lead to very different copyright legislations in the different countries.

The existing exceptions already in place will only be affected if they concern the three major points discussed in the directive.

One of the exceptions concerns Text and Data Mining. In Article 3 of the directive, it is declared that text and data mining should be allowed for research institutions, offering some security to them. At the same time this means that the copyright can be extended very far.

Article 4 allows for the free use of works in the digital context within an educational environment such as a school server or online courses if there are no licensing offers (by publishers) in place. This regulation encourages license makers to implement clear regulations, eventually leading to the voidness of the rule, which is further limited by the addition that rightholders should receive "fair compensation for the harm" they incurred.

The third exception listed in Article 5 of the document addresses the preservation of cultural heritage. The regulation reads that works permanently in the collections of cultural heritage institutions can be digitised for preservation purposes only. The law does not extend any further, e.g. sharing the content online is still not allowed.

The 7th article finds rules for the sharing of "out-of-commerce works" by ruling that a collective management institution can decide on a non-exclusive license for non-commercial purposes, meaning not only heritage institutions who are members of said collective management institution but non-members can benefit from these licenses as well and thus content that is not available elsewhere anymore can be made available. This might extent cross-borders into other Member States as well (Art. 8).

Further articles about video-on-demand agreements (Art. 10), online use of news publications (Art. 11), compensation for publishers (art. 12), rules for platforms that provide user uploaded content (Art. 13) and an accessible information flow for rightholders about the use, licensing, revenue of their content and room to claim "appropriate remuneration" (Art. 14-16) can be found in the directive.

Critics especially mentioned previously discussed but missing topics, which include freedom of panorama - creating images (photos, drawings, videos etc.) of buildings, sculptures and other art works in public places without infringing copyright - fair use regulations, regulations for the transformative use of existing content, e.g. Internet Memes, and geoblocking.

Especially in the cultural sector the new directive has not brought much development and is mainly standing against open access movements. At the ICOM Milano conference in July ICOM and NEMO met about Copyright issues and especially lobbying for museums. ICOM president Hans-Martin Hinz, Suay Aksoy, vice president, ICOM Director Anne-Catherine Robert-Hauglustaine,  Rina Pantalony and John Mc Avitiy, current and former Chair of the ICOM Legal Committee and NEMO Chair David Vuillaume participated in the discussion. They discussed the potential of ICOM and NEMO collaborating on the questions of copyright exceptions and expressed the wish to join forces to lobby for copyright regulations in favor of the museum sector.

For further opinions and explanations, please have a look at the links below, including from members of the C4C initiative (Copyright for Creativity), where NEMO is also a member.

C4C's response to the leaked impact assessment

The IPKat on the directive

Opinion by the Open Rights Group

Opinion by the Initiative against an ancillary copyright