Outofcopyright.com – Out of line

The history of European copyright means that in today’s digital globalised world, things aren’t as simple as some would perhaps prefer.  The question of whether a work is in the public domain or not is a significant one when we consider the potential of the internet to put Europe’s cultural heritage at our fingertips.  It comes as no surprise therefore that, with the advent of Europeana – the EC’s European cultural heritage portal –  the EC has funded a calculator for just this very issue.  The target audience of this calculator isn’t very clear (libraries and archive institutions or the general public?) but is currently accessible to anyone.

Taking into account the complexities of the calculation of the term of copyright protection, such a calculator can only be a good thing if it actually works.  Otherwise it only leads to further confusion and the potential for people to incorrectly use protected works under the mistaken belief that they are out of copyright.

I therefore looked at it with lots of curiosity. The result is that the calculator in question gives completely inaccurate responses for film in 29 out of 30 countries boldly stating that for works first communicated to the public over 50 years ago – “The work is in the public domain. You can duplicate, build upon, and distribute it without permission from the right-holder.

This is wrong.

Article 2 of the Council Directive 93/98/EEC of 29 October 1993 states “The term of protection of cinematographic or audiovisual works shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as co-authors: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.”

When I wrote to Europeana to express my concerns about the impressive scale of the mistake, the official line was, essentially, “this is ok because there are a number of disclaimers on the site”.  These disclaimers explain that there may be other rights to consider for a creative work which may mean that the work is still protected.  Is this a public domain calculator then? What is the use of such a tool?

If Europeana cares about its reputation, either this calculator shouldn’t be online until it has been fully checked or it should be renamed appropriately. Authors from other sectors – please check that your rights are correctly represented on the site and please let the European Parliament and the Commission know if they are not.

Cécile Despringre

  1. #1 by Lucie Guibault on 09/10/2011 - 10:51 AM

    Dear Ms. Despringre,

    If you care to run the calculator again, you will see that it has already been modified to address the issue you raise.

    We welcome any constructive comment or suggestion from users that aim at improving the calculators.

    Should you have any other remarks concerning the calculators, please do not hesitate to contact us directly.

    Best regards,

    Lucie Guibault
    Institute for Information Law

    • #2 by saabrussels on 13/10/2011 - 8:41 AM

      Dear Lucie,
      Thank you for your comments on my post.
      I have run the calculator again and unfortunately, I am unable to see any difference in the results.
      In spite of the addition of disclaimers insisting on the multiple layers of rights which might apply to the same “information product” as you call protected works, the essential flaw of the calculator for the film sector remains: it only considers the neighboring right of the producer (50 years after the first fixation of a film) and totally ignores the EU harmonised rule of the term of protection of cinematographic or audiovisual works (70 years after the death of the last survivor among the director, the screenwriter, the author of the dialogue and the compositor of the original music).
      The disclaimer does not even mention to check this rule when it comes to films.
      I therefore maintain my criticism: this tool’s calculations do not respect EU law and do not check the term of protection of authors’ rights. I do not see how it can be named a public domain calculator if it is incapable of accurately discerning whether an audiovisual work is, in fact, in the public domain.

      Why don’t you add the necessary questions so that the public domain calculator is truly capable of establishing whether a work is in the public domain?

      Cécile Despringre

      • #3 by Patrick Peiffer on 13/10/2011 - 11:32 AM

        Dear Cecile,

        As the work package leader of the Europeana Connect project within which the calculator was created, I would like to add that it is not true when you maintain that “this tool’s calculations do not respect EU law and do not check the term of protection of authors’ rights.”

        The calculator offers aims to be complete and can check all possible layers of protection which can apply to a work, but it is up to the user to make sure that all such layers are duly checked, as no calculator can know which layers may apply to a given work.

        An absolutely essential layer, and you are correct to point this out, is indeed the term of protection of authors’ rights (labelled “literary or artistic work” in most jurisdictions). For the layperson this may actually be the only layer of “copyright” of which they may be aware.

        It goes without saying that for the film sector also, this layer must be checked, by selecting “literary or artistic work”. Please do follow this step, as is indicated in several places on the calculator webpage, and you will find that in no way the calculator is limited to neighbouring rights only.

        Due to the complexity of the subject matter at hand, it is difficult to include set paths for every possible type of work that may be subject to one or more protection layers, hence the use of the generic “information product” instead of the more usual term “work”. We welcome your comments and will strive to make the working of the calculator as clear as possible.

        In the coming weeks (leading into november) we will also compile and make available all the underlying research that led to the calculator flowcharts, as well as update the individual downloadable flowcharts themselves, which do currently contain still a too generic “public domain” final statement instead of the more accurate “This right has expired” statement.

        Please do continue to assess the calculator as this is a valuable contribution but I would kindly ask you to revisit the alltogether sweeping statement that the calculator does not respect current EU law.

        Best regards,
        Patrick Peiffer
        Bibliothèque nationale de Luxembourg

      • #4 by Lucie Guibault on 13/10/2011 - 1:20 PM

        Dear Ms. Despringre,

        As I mentioned in my previous message, we welcome input from users and in an academic manner, we are open minded to make any change necessary following constructive criticism. No need to take a harsh tone or adopt aggressive measures.

        To take account of your critique, the answers to the calculator have been modified already in addition to the disclaimer you mention (perhaps should you refresh your cache memory). And they will be improved further in the coming days to make the calculators even clearer.

        The result for a query regarding the first fixation of a film now specifies that this ‘right is expired’ (no longer mentioning the public domain) and encourages the user to check whether other rights might be relevant.

        Of course, a first fixation of a film is not a cinematographic or audiovisual work and this query relates indeed only to the neighbouring right of the film producer. A user would have to run the calculator for ‘literary and artistic works’ to check whether the harmonized term of 70 years after the death of the author of any other copyright protected component of the film (including the scenario, music, screenplay etc.) has expired or not (if you read the information text, you will see that cinematographic works and audiovisual works are listed among the several types of works protected by copyright).

        To make things even clearer for users who apparently do not see the distinction between a first fixation of a film and a cinematographic/ audiovisual work, an additional mention of this will be made in the result to the query regarding the first fixation of a film, along with what you suggest. Due to the complexity of the calculators, this may take a few days, however.

        Should you have any other constructive comment or suggestion, please do not hesitate to contact me directly.

        Best regards,

        Lucie Guibault

  2. #5 by saabrussels on 13/10/2011 - 3:06 PM

    Dear Mr Peiffer, dear Lucie
    I think together we are getting to the bottom of this. I’m delighted by our exchange here and the quick progress compared to that of my three official letters that received one unsatisfactory response.
    If I understand you correctly, you expect a user of the calculator who wants to know the term of protection of a film to check “literary or artistic work” which looks very general instead of “first fixation of a film” which at first sight looks very appropriate?
    This emphasises one of the current flaws of the calculator: it doesn’t use typical categories of works (such as musical works, audiovisual works, written works, visual works, which are understandable by everybody) but only provides for specific terms such as phonogram, broadcast, first fixation of a film, etc. which are very much linked to the support material (Lucie, I’m pleased to see you take this into account in your second post). The consequence of this (or the cause) is that you give more emphasis to neighboring rights (you don’t even mention to check authors’ rights) while authors’ rights, at least due to their length, are the only rights to matter for the public domain.
    Let’s be pragmatic: what is the use of checking neighboring rights if it has no impact on the public domain status of a work?
    Then, if the objective of the tool is not to inform the users of the public domain status but to check the term of protection of all possible authors’ rights and neighboring rights on an ‘information product’, please drop the term public domain which is misleading.
    I hope this controversy will open your eyes to how the calculator is perceived by potential users and makes you understand that you should have worked more on it before making it public.

    Best regards,
    Cécile Despringre

    • #6 by Patrick Peiffer on 13/10/2011 - 4:36 PM

      Dear Cecile,

      Thanks for your reply. I think that we are indeed getting somewhere and crystallizes more clearly that the calculator provides a pure and generic representation of applicable law.

      It is not the goal of the calculator to provide ready made “recipes” that are geared towards a particular type of work, like film for example. The simple reason is that first we had to get to grips with representing the legal situation and such additional work, while useful, was out of scope for the project.

      Producing such “recipes” that stand the test in all 30 jurisdictions would be a worthwhile investement but not one we can provide at the moment. We will licence all material under an open licence (CC BY-SA) and thus anyone can build on the current work and expand it.

      You provide a great illustration of the dangers of a domain specific approach: “Let’s be pragmatic: what is the use of checking neighbouring rights if it has no impact on the public domain status of a work?”, as someone from an audio archive may rightly object that in classical music recordings, neigbouring rights are the most relevant rights.

      Best regards,
      Patrick Peiffer

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