The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. There is no evidence that copyright protection that extends decades beyond the life of the author encourages the production of copyright protected works. Instead the requirement to obtain permission for works by authors that have long died are one of the biggest obstacles for providing universal access to our shared culture and knowledge. Given the above the term of copyright protection for new works (that is works created after the term reduction) should be reduced.

The proposed term extension of copyright protection for performers and sound recordings will harm the public domain and must not be implemented. The Commission and Member States should carefully review expert opinions on this topic, as detailed at the end of this recommendation. Term extension will not create additional incentives to create but will make access to large parts of our audiovisual heritage more difficult than it already is. Instead of pursuing this special interest driven legislation, the divergence in the length of protection allotted to performers and authors should be taken as an opportunity to reevaluate the effectiveness of the current term of protection. Such a reevaluation must take into account the COMMUNIA policy recommendations #1 and #8.

Harmonize Exceptions and Limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to the ongoing technological transformations. The limited list of Exceptions and Limitations established by the copyright directive limits the possibilities to adjust the copyright system to the rapid pace of technological innovation that shapes how we interact with copyright protected works. This not only limits the abilities of citizens to gain access to our shared culture and knowledge but also imposes restrictions on innovative business models and as a result economic growth. In the absence of an open ended exception such as a fair use clause it is imperative that exceptions and limitations can be adjusted to the needs of society at large, and for innovative economic actors in particular.

As a prerequisite for unlocking the cultural, educational and economic potential of the public domain, identification of works being in the public domain should be made easier and less resource consuming by simplifying and harmonizing rules of copyright duration and territoriality. The rules for establishing the duration of the term of protection of individual works have become so complex that it is almost impossible to establish with certainty whether a work is protected by copyright (including all neighboring rights) or whether it is in the public domain. This complexity of the system makes it very difficult to automatically calculate the status of a work. Two factors have contributed to this situation: the divergence of legislation between the different member states and a large number of (national) exception clauses. This situation can only be remedied by intervention on the European level, preferably by simplifying the rules and harmonizing them across Europe. The work on public domain calculators has highlighted the incredible complexity of copyright term rules which makes it very difficult to determine the copyright status of individual works. This means that one of the biggest obstacles to positively identifying public domain works (and thus unlocking their cultural, educational and economic potential) lies in the cumbersome process of determining the term of copyright protection.

Digital reproductions of works that are in the Public Domain must also belong to the Public Domain. Use of works in the public domain should not be limited by any means, either legal or technical. The internet enables the widespread re use of digital reproductions of works of authorship whose copyright protection has expired. The Public Domain status of these works means that there is no owner of the works who can impose restrictions on their reuse. At the same time the owners of the physical works (such as heritage institutions) often feel that they are entitled to control over digital reproductions as well and that they can impose restrictions on their reuse. However digitization of Public Domain works does not create new rights over it: works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitized.

Any false or misleading attempt to misappropriate Public Domain material must be declared unlawful. False or misleading attempts to claim exclusivity over Public Domain material must be sanctioned. In order to preserve the integrity of the Public Domain and protect users of Public Domain material from inaccurate and deceitful representations, any false or misleading attempts to claim exclusivity over Public Domain material must be declared unlawful. There must be a system of legal recourse that allows members of the public to get sanctions imposed on anyone attempting to misappropriate Public Domain works.

The Public Domain needs to be protected from the adverse effects of Technical Protection Measures. Circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works. The deployment of TPMs to hinder or impede privileged uses of a protected work or access to public domain material must be sanctioned. Technical Protection Measures such as Digital Rights Management systems can have adverse effects on the Public Domain. Access restrictions imposed on works can remain in effect even after a work has passed into the public domain and over time Protections Measures can become orphaned making access to protected works impossible. Most current TPM ‘solutions’ do not take into account user rights created by Exceptions and Limitations thereby limiting their effectiveness and undermining the inherent checks and balances of the copyright system. Given the above, circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works.

In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection. One of the unintended consequences of the near universal access to electronic publishing platforms is an increase in the amount of works that are awarded copyright protection even though their authors do not require or desire this protection. This extension of protection threatens to undermine the value and effectiveness of protection for works where copyright protection is necessary and desired. Given the above full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only be granted moral rights protection. This recommendation requires the introduction of a registration system. Such a system needs to be accessible and transparent.

Europe needs an efficient pan European system that guarantees users full access to orphan works. Both mandatory exceptions and extended collective licensing in combination with a guarantee fund should be explored. Any due diligent search requirements should be proportionate to the ability of the users to trace the rights holders. The orphan works problem is in urgent need of a solution that unlocks the benefits of access to these works. Across Europe digitization projects are undertaken that produce large quantities of digitized versions of orphan works that are not available to the general public. Neither the authors nor the general public benefit from the orphan work status of these works. Since most mass digitization projects are undertaken by publicly funded memory institutions any ‘solution’ for this problem that includes a diligent search requirement amounts to large scale waste of public resources. Instead of establishing diligent search guidelines, mandatory exceptions and extended collective licensing in combination with a guarantee fund need to be explored to allow for the non commercial dissemination of orphan works.

Memory Institutions must be able to fulfill their duty to provide access to knowledge and culture by benefitting from harmonized exceptions and limitations (copyright, but also other IPR), solutions for orphan works and standardized and harmonized licensing terms. To ensure the functioning of Memory Institutions the term of copyright protection must not be extended. Memory Institutions must keep in mind the long term costs of the lifecycle of cultural content, including sustainability costs and skilled personnel. Public private partnerships must be aimed at opening up the content, public investments must at least ensure access, preferably under an open license or directly into the Public Domain. In order for publicly funded memory institutions to maintain their position in the digital age they need to be enabled to make available their collections online for non commercial purposes. Across Europe these organisations hold an unrivaled wealth of knowledge and information related to our shared knowledge and culture. Preventing these organisations from effectively making their collections available online means delegating them to second class status and devaluing the long term investments embodied by these organisations. Existing exceptions and limitations benefitting memory institutions need to be broadened to allow institutions to make available those works that they hold in their collections for non commercial purposes.

Digitization projects that receive public funding must at the minimum ensure that all digitized content is publicly available online. Allowing for the free redistribution of digitized content should be considered since it is beneficial for the sustainability of the access to digitized cultural heritage. When public funding is used for digitization projects it needs to be assured that the public benefits from these efforts. At the minimum this means that digital versions need to be available online for consultation by the public that has paid for the digitization effort. Public funding bodies should prioritize digitization projects that will increase the amount of our shared culture that is available to the public. Memory institutions that receive public funding should consider making available digitized collections with as little restrictions as possible. Free availability of collections that includes the free redistribution and reuse of the digital artifacts will result in wider availability and reduce the risks inherent to centralized storage.

Access to copyright protected works for education and research purposes must be facilitated by strengthening existing exceptions and limitations and broadening them to cover uses outside of formal educational institutions. All publicly funded research output and educational resources must be made available as open access materials. The current exceptions and limitations intended to promote education and research activities assume that such activities are carried out within dedicated educational or research institutions. Pervasive access to the Internet and policy objectives like lifelong learning mean that growing parts of learning and research are taking place outside of such institutions. The exceptions and limitations intended to promote education and research need to take this reality into account and need to be broadened to facilitate all educational and research activities regardless of their institutional settings. In addition all publicly funded educational materials as well as publicly funded research output should be available without restrictions on its reuse. What has been paid for by the public must be available to the public.

The PSI Directive needs to be broadened, by increasing its scope to include publicly funded memory organisations – such as museums or galleries – and strengthened by mandating that Public Sector Information will be made freely available for all to use and re-use without restriction. Currently publicly funded memory organisations fall outside the scope of the PSI directive. In order to strengthen the position of these organisations they should be brought within the scope of the directive. The directive also needs to be strengthened by mandating that Public Sector Information will be made freely available for all to use and re use without restrictions. What has been paid for by the public must be available to the public regardless of the nature of the intended uses.

In order to support the emerging culture of sharing copyright protected works alternative reward systems and cultural flat rate models should be explored. The current debate about copyright is dominated by a narrow focus on the business models of the entertainment industry. As part of this discussion rights holders advocate more extensive copyright protection and more stringent enforcement in order to ensure the survival of business models based on selling access to copies of protected works. While there is no evidence that extended copyright protection and/or stronger enforcement will allow these business models to continue to exist, there is clear evidence that any extension of copyright protection will harm our ability to access our shared knowledge and culture. Instead of focusing on an extension of copyright protection and enforcement alternative rewards systems and cultural flat rate models should be explored. These systems are in line with the emerging of a culture of sharing that attempts to maximize access to and interaction with cultural works.