Last week I participated in the third (and sadly final!) conference of Communia project, a European thematic network on the digital public domain. The theme of this conference was University and Cyberspace and several of the talks articulated a vision in which universities, academics, and students play a key role in creating, curating and promoting the digital commons.

The panel that I took part in gave an overview of some of the key activities that the Communia project has undertaken — including work that we have been doing on the public domain calculators, which aim to help users find and identify works which are in the public domain in their jurisdiction.

I spoke briefly about the relation between the public domain and open government data — giving a brief introduction to the ‘what’ and ‘why’ of open government data and an overview of some of the many developments since our workshop on reusing public sector content and data in March 2009.

I concluded with two main ‘take-home’ points about open government data, public sector information and the digital public domain in Europe:

  1. Broaden the scope of the PSI Directive. The directive does not currently include publicly funded cultural heritage organisations — such as museums or galleries — within its scope. The directive could be broadened to include these kinds of organisations, which might encourage them to open up their content and data for others to reuse. Opening up metadata about works and objects held by publicly funded cultural heritage organisations could be very useful to (i) help establish what is in the public domain in a given jurisdiction (as per the work on the calculators) and (ii) help to bootstrap a new generation of digital services for researchers and for the general public.

  2. Broaden the evidence base for opening up PSI. At present the European Commission primarily focuses on the value of PSI in a fairly narrow sense — e.g. citing the MEPSIR and PIRA study estimates of a market size of 27 or 68 billion Euros (respectively). While this kind of evidence is obviously crucial for European policymakers, the Commission should also take into account other potential benefits of opening up PSI, such as improvements to public service delivery, greater accountability of public bodies, the intrinsic value of PSI (e.g. cultural or educational), and enabling the creation of new digital services for citizens. Value is not only about money!

The following guest post is from Christina Angelopoulos at the Institute for Information Law (IViR) and Maarten Zeinstra at Nederland Kennisland who are working on building a series of Public Domain Calculators as part of the Europeana project. Both are also members of the Open Knowledge Foundation’s Working Group on the Public Domain.

Europeana Logo

Over the past few months the Institute for Information Law (IViR) of the University of Amsterdam and Nederland Kennisland have been collaborating on the preparation of a set of six Public Domain Helper Tools as part of the EuropeanConnect project. The Tools are intended to assist Europeana data providers in the determination of whether or not a certain work or other subject matter vested with copyright or neighbouring rights (related rights) has fallen into the public domain and can therefore be freely copied or re-used, through functioning as a simple interface between the user and the often complex set of national rules governing the term of protection. The issue is of significance for Europeana, as contributing organisations will be expected to clearly mark the material in their collection as being in the public domain, through the attachment of a Europeana Public Domain Licence, whenever possible.

The Tools are based on six National Flowcharts (Decisions Trees) built by IViR on the basis of research into the duration of the protection of subject matter in which copyright or neighbouring rights subsist in six European jurisdictions (the Czech Republic, France, Italy, the Netherlands, Spain and the United Kingdom). By means of a series of simple yes-or-no questions, the Flowcharts are intended to guide the user through all important issues relevant to the determination of the public domain status of a given item.

Researching Copyright Law

The first step in the construction of the flowcharts was the careful study of EU Term Directive. The Directive attempts the harmonisation of rules on the term of protection of copyright and neighbouring rights across the board of EU Member States. The rules of the Directive were integrated by IViR into a set of Generic Skeleton European Flowcharts. Given the essential role that the Term Directive has played in shaping national laws on the duration of protection, these generic charts functioned as the prototype for the six National Flowcharts. An initial version of the Generic European Flowchart, as well as the National Flowcharts for the Netherlands and the United Kingdom, was put together with the help of the Open Knowledge Foundation at a Communia workshop in November 2009.

Further information necessary for the refinement of these charts as well as the assembly of the remaining four National Flowcharts was collected either through the collaboration of National Legal Experts contacted by IViR (Czech Republic, Italy and Spain) or independently through IViR’s in-house expertise (EU, France, the Netherlands and the UK).

Both the Generic European Flowcharts and the National Flowcharts have been split into two categories: one dedicated to the rules governing the duration of copyright and the sui generis database right and one dedicated to the rules governing neighbouring rights. Although this division was made for the sake of usability and in accordance with the different subject matter of these categories of rights (works of copyright and unoriginal databases on the one hand and performances, phonograms, films and broadcasts on the other), the two types of flowcharts are intended to be viewed as connected and should be applied jointly if a comprehensive conclusion as to the public domain status of an examined item is to be reached (in fact the final conclusion in each directs the user to the application of the other). This is due to the fact that, although the protected subject matter of these two categories of rights differs, they may not be entirely unrelated. For example, it does not suffice to examine whether the rights of the author of a musical work have expired; it may also be necessary to investigate whether the rights of the performer of the work or of the producer of the phonogram onto which the work has been fixated have also expired, in order to reach an accurate conclusion as to whether or not a certain item in a collection may be copied or re-used.

Legal Complexities

A variety of legal complexities surfaced during the research into the topic. Condensing the complex rules that govern the term of protection in the examined jurisdictions into a user-friendly tool presented a substantial challenge. One of the most perplexing issues was that of the first question to be asked. Rather than engage in complicated descriptions of the scope of the subject matter protected by copyright and related rights, IViR decided to avoid this can of worms. Instead, the flowchart’s starting point is provided by the question “is the work an unoriginal database?” However, this solution seems unsatisfactory and further thought is being put into an alternative approach.

Other difficult legal issues stumbled upon include the following:

  • Term of protection vis-à-vis third countries
  • Term of protection of works of joint authorship and collective works
  • The term of protection (or lack thereof) for moral rights
  • Application of new terms and transitional provisions
  • Copyright protection of critical and scientific publications and of non-original photographs
  • Copyright protection of official acts of public authorities and other works of public origins (e.g. legislative texts, political speeches, works of traditional folklore)
  • Copyright protection of translations, adaptations and typographical arrangements
  • Copyright protection of computer-generated works

On the national level, areas of uncertainty related to such matters as the British provisions on the protection of films (no distinction is made under British law between the audiovisual or cinematographic work and its first fixation, contrary to the system applied on the EU level) or exceptional extensions to the term of protection, such as that granted in France due to World Wars I and II or in the UK to J.M. Barrie’s “Peter Pan”.

Web based Public Domain Calculators

Once the Flowcharts had been prepared they were translated into code by IViR’s colleagues at Kennisland, thus resulting in the creation of the current set of six web-based Public Domain Helper Tools.

Technically the flowcharts needed to be translated into formats that computers can read. In this project Kennisland choose for an Extensible Markup Language (XML) approach for describing the questions in the flowcharts and the relations between them. The resulting XML documents are both human and computer readable. Using XML documents also allowed Kennisland to keep the decision structure separate from the actual programming language, which makes maintenance of both content and code easier.

Kennisland then needed to build an XML reader that could translate the structures and questions of these XML files into a questionnaire or apply some set of data to the available questions, so as to make the automatic calculation of large datasets possible. For the EuropeanaConnect project Kennisland developed two of these XML readers. The first translates these XML schemes into a graphical user interface tool (this can be found at EuropeanaLabs) and the second can potentially automatically determine the status of a work which resides at the Public Domain Works project mercurial depository on KnowledgeForge. Both of these applications are open source and we encourage people to download, modify and work on these tools.

It should be noted that, as part of Kennisland’s collaboration with the Open Knowledge Foundation, Kennisland is currently assisting in the development of an XML base scheme for automatic determination of the rights status of a work using bibliographic information. Unfortunately however this information alone is usually not enough for the automatic identification on a European level. This is due to the many international treaties that have accumulated over the years; rules for example change depending on whether an author is born in a country party to the Berne convention, an EU Member State or a third country.

It should of course also be noted that there is a limit to the extent to which an electronic tool can replace a case-by-case assessment of the public domain status of a copyrighted work or other protected subject matter in complicated legal situations. The Tools are accordingly accompanied by a disclaimer indicating that they cannot offer an absolute guarantee of legal certainty.

Further fine-tuning is necessary before the Helper Tools are ready to be deployed. For the moment test versions of the electronic Tools can be found here. We invite readers to try these beta tools and give us feedback on the pd-discuss list!

Note from the authors: If the whole construction process for the Flowcharts has highlighted one thing that would be the bewildering complexity of the current rules governing the term of protection for copyright and related rights. Despite the Term Directive’s attempts at creating a level playing field, national legislative idiosyncrasies are still going strong in the post-harmonisation era – a single European term of protection remains very much a chimera. The relevant rules are hardly simple on the level of the individual Member States either. In particular in countries such as the UK and France, the term of protection currently operates under confusing entanglements of rules and exceptions that make the confident calculation of the term of protection almost impossible for a copyright layperson and difficult even for experts.

PD Calculators

Generic copyright flowchart by Christina Angelopoulos. PDF version available from Public Domain Calculators wiki page

Read today a Google Books PR piece on the Guardian website. Of out-of-print or hard-to-get books, it says, “Although copies may be available in libraries, they are effectively dead to the wider world.” Also heard today that Google Street View is proposing inside views, museum interiors.

Last week, I and some OKF people heard a Google Books lawyer, Antoine Aubert, speak at the 7th COMMUNIA workshop on the public domain.

Google digitise the holdings of libraries free of cost, returning the library a copy, retaining some exclusivity over further re-use for Google. For example, a library is asked not to allow other search engines to index the digitised full text of the works.

Rufus commented on the Public Domain Calculator cross-European project that “A library who will remain nameless would not provide us with their catalogue metadata because of an exclusive arrangement with Google in rights to re-use the catalogue. Were they mistaken?” Antoine was not able to give a definite answer, to this and other questions.

A library’s raison d’etre is to provide physical access to books. With high-quality digitisations online for free, physical traffic will definitely fall. Space used for storage in prime central locations is inefficient; why not just scan the books and keep them in an air-conditioned warehouse in Swindon?

Meanwhile a library’s purchasing power is partly determined by the number of people borrowing books. New books will be indexed and stored by Google directly from publishers. There won’t be much reason to visit a library.

The library will become a museum of books. The museum will become a mausoleum of things.

To survive as institutions, museums, libraries and archives need a sustainability model, one which cannot depend on state funding alone.

One path to explore is commercial services for special purposes - re-use of very large high-resolution scans, printing of images and facsimiles, new or custom images, new interfaces and search functions.

If Google now has the right to restrict the use of the works online, those libraries accepting the “free” digitisation offer are not free to build and maintain the services that, as memory institutions in a digital age, they really should be providing.

Well, there’s always Wikipedia, and particularly the Britain Loves Wikipedia events going on through February 2010, focused on photographing heritage objects.

Matthias Schindler spoke at the same COMMUNIA meeting about a German Wikipedia effort to fix and link metadata from authority files by the German National Library - some background slides. His message went, “Give us your metadata. Really, just give us your metadata right now.”

Communia workshop

We recently attended a workshop in Luxembourg as part of Communia, the EU policy network on the digital public domain. There was a focus on bringing together themes from previous events to make a series of policy recommendations to the European Commission (watch this space!).

Below are a few notes highlighting some of the talks and discussions that we thought might be of particular interest to readers here:

  • We had a meeting to review where we are up to with the Public Domain Calculators. So far it looks like we have 10 EU countries covered, 8 maybe covered and 6 that we are still looking for help with (namely: Cyprus, Denmark, Lithuania, Luxembourg, Slovakia, Slovenia). If you’d like to help out - please drop us a line!
  • Jill Cousins from the European Digital Library Foundation spoke about the latest state of play with respect to licensing the content of Europeana, a collection of over 6 million images, texts, sound recordings and videos. In particular she spoke about the possibility of libraries and cultural heritage organisations releasing digital content into the public domain or under an open license. There has been some opposition - but we very much hope that institutions contributing to Europeana have the foresight to give this serious consideration!
  • Paul Keller and Lucie Guibault presented their work on the recently released public domain manifesto - discussing the rationale behind it, its genesis and various versions, and an overview of its main principles and recommendations. At the time of writing it has been signed by over 50 organisations and 1800 individuals.
  • Francesco Fusaro of the European Commission DG Research spoke about the EU initiatives to support open access to scientific publications and data - from background research in this area to piloting open access to approximately 20% of FP7 funded projects.
  • Patrick Peiffer gave an excellent presentation on licensing options for bibliographic metadata. In particular he suggested that non-commercial restrictions could cause substantial transaction costs and technical complications. On the other hand using an ‘attribution, sharealike’ type license that allowed commercial reuse which would cause no transaction costs, create a level playing field, allow interoperability with projects like Wikimedia and Wikimedia Commons, avoid exclusive deals and open up new channels of discovery. It would be a big step if Europeana libraries and institutions follow the lead of CERN Library, who last week announced that they were opening up their metadata!
  • Mathias Schindler spoke about tools developed by the Wikipedians using open bibliographic metadata. He also described what the Wikipedia community had done to add value to collections of cultural works - such as improving the quality of metadata, adding descriptions to images and so on.
  • Rufus Pollock spoke about his work at the University of Cambridge to estimate the size and value of the public domain in Europe.

See also:

Public Domain Manifesto

January 27th, 2010

On Monday the Public Domain Manifesto went live:

From the introductory paragraph:

The public domain, as we understand it, is the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection, either because it is free from any copyright protection or because the right holders have decided to remove these barriers. It is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The Public Domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction - close to zero - and that all members of society can build upon it. Having a healthy and thriving Public Domain is essential to the social and economic well-being of our societies. The Public Domain plays a capital role in the fields of education, science, cultural heritage and public sector information. A healthy and thriving Public Domain is one of the prerequisites for ensuring that the principles of Article 27 (1) of the Universal Declaration of Human Rights (’Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.’) can be enjoyed by everyone around the world.

The manifesto gives a series of principles and recommendations for promoting and protecting the digital public domain. For example, a point that we have mentioned in the past:

What is in the Public Domain must remain in the Public Domain. Exclusive control over Public Domain works must not be re-established by claiming exclusive rights in technical reproductions of the works, or using technical protection measures to limit access to technical reproductions of such works.

The manifesto was drafted under the auspices of Communia, the EU thematic network for the digital public domain. In particular it was created by Working Group 6, of which I am co-lead. If you support the manifesto, please consider signing it!

January 1st 2010 was Public Domain Day, when around the world various works fell out of copyright and into the public domain. Back in November we put together a rough list of which works fall into the public domain:

You can find the list of 563 authors on our Public Domain Works project, which is a simple registry of artistic works that are in the public domain:

The list can be sorted by author surname, birth date, death date and number of works by clicking on the relevant headings. Notable authors include the poets William Butler Yeats and Osip Mandelstam, as well as the father of psychoanalysis Sigmund Freud.

There were celebrations in Poland and Switzerland. Communia, the EU policy network for the digital public domain launched a new website at:

The Telegraph celebrated Public Domain Day with an editorial from Shane Richmond, Head of Technology:

Happy Public Domain Day everyone! Today is the day that copyright expires on a whole range of works. As we reported this morning, from today works by Sigmund Freud, WB Yeats, Ford Madx Ford and illustrator Arthur Rackham are today part of the public domain. They can be made cheaply available as educational editions, translated into braille or made into audiobooks, all without anyone needing to give permission or any fees changing hands. They are also available to be reinterpreted and re-used by new artists.

The Telegraph also reported an announcement from Wikimedia UK inviting people to upload sources to Wikimedia Commons:

Wikimedia UK anticipates January 1, “Public Domain Day”, 2010 being a great year for additions to the digital Wikimedia Commons. The poetry of W. B. Yeats, the works of Sigmund Freud, and Arthur Rackham’s classic children’s book illustrations all enter the public domain. When the complexities of copyright no longer encumber reuse of old works, a work that has been a “sleeper” can become a new classic. Perhaps the definitive example of this is “It’s a Wonderful Life“, the 1946 Frank Capra film that became a Christmas classic in the 1980s.

Wikimedia UK promotes the uploading of copyright-free text to Wikisource, a sister site to Wikipedia, so that it can be widely enjoyed. Audio recordings of public domain works may be added to the Wikimedia Commons site, and Wikimedia UK invites you to join us and help digitise and preserve our common cultural heritage. You can make it available for everyone to share, build on, and simply enjoy.

On a less happy note, copyright scholar James Boyle at the Center for the Study of the Public Domain writes:

What is entering the public domain in the United States? Sadly, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year. Or the year after. Or the year after that. In fact, in the United States, no publication will enter the public domain until 2019. And wherever in the world you live, you now have to wait a very long time for anything to reach the public domain. When the first copyright law was written in the United States, copyright lasted 14 years, renewable for another 14 years if the author wished. Jefferson or Madison could look at the books written by their contemporaries and confidently expect them to be in the public domain within a decade or two. Now? In the United States, as in most of the world, copyright lasts for the author’s lifetime, plus another 70 years. And we’ve changed the law so that every creative work is automatically copyrighted, even if the author does nothing. What do these laws mean to you? As you can read in our analysis here, they impose great (and in many cases entirely unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, they impose costs on our entire collective culture. [...] We have little reason to celebrate on Public Domain Day because our public domain has been shrinking, not growing.

More detailed comment and analysis from the Centre is available at:

See also posts from:

Public Domain Calculators

There is often a tendency to talk of ‘the public domain’ and of works falling out of copyright and ‘into the public domain’ - as though there is a single set of works which are out of copyright all over the world. In fact, of course, there are different national laws about the nature and duration of copyright in different types of works - and hence what is in the public domain is different in different countries.

We’re currently coordinating work to build a series of public domain calculators - which will help to determine whether or not a given work is in copyright in a given jurisdiction. At the time of writing we have been in touch with groups and individuals interested in helping to build the calculators in 17 jurisdictions.

In November, the Open Knowledge Foundation in association with the Centre for Intellectual Property and Information Law at the University of Cambridge are hosting a meeting of European experts on copyright and the digital public domain as part of the Communia project. The purpose of the workshop is to produce materials such as legal flow charts and public domain “algorithms” which will help with the representation of different national copyright laws and the determination of public domain status.

Details of the meeting are as follows:

Just over a week ago was the 2nd Communia Workshop, which took place in Turin. The theme was ‘Global Science and the Economics of Knowledge-Sharing Institutions’ - and there was a great line up of scientists, economists, and legal scholars, as well as representatives from various research bodies and NGOs.

Papers, slides and audio will be published on the Communia website site in the near future.

Following are some highlights of the event:

  • Hans Hoffman at CERN mentioned how their archives of scheduled meetings exceeded 17,000 in 2008 with over 81,000 contributions. He said 100% of their research publications are green open access, and over 85% gold open access. Furthermore all material related to ‘life cycle description (software, blueprints, administrative records, etc.) are under a Creative Commons style license. (Though it is not clear whether or no this was open or not!) He cited the notion that the ‘value of knowledge increases with its use’. He also alluded to the ERC ‘5th freedom’ - the free movement of knowledge. He said that many of our biggest challenges cannot be tackled alone, and collaboration is crucial. He finished by emphasising the importance of a balance of IP between public and private interests.

  • Paul F. Uhlir at the National Academies spoke about environmental data sharing policies - which I was particularly interested to hear about given our interest in this area a couple of years ago. He spoke about how Federal US Government data was in the public domain - in contrast to the model in Europe which is often to commercialise information by ‘hoarding and selling’ it. Remote sensing data, he said, is often not shared on national security grounds. Hence it is slow to build up the large datasets we need. That said there is a general movement towards openness. As examples he cited the OECD recommendations and China’s data sharing policy. He said the value of data was greatly diminished if it was used only by the creators - and that this was especially true of environmental data. The GEOSS initiative was set up to improve environmental data sharing. The amount of data represented is the largest single collection in the world. He said that there was full exchange of data within GEOSS - though it was not clear to what extent data is shared externally.

  • Nicole Perrin of the Wellcome Trust spoke about open access and research funding policy.

  • Bernt Hugenholtz at IViR (who was also at the Amstrerdam Workshop) spoke about the threats IP law posed to the dissemination of knowledge. He spoke of the ‘paradox of IP’ to share knowledge by granting temporary monopolies. He identified the following threats: (i) rights in data, (ii) the commodification of government data (e.g. Landmark case), (iii) increasing contractualisation. To counterbalance these threats he suggested:

    • Broadening exceptions for copyright and DB rights.
    • Limiting/abolishing copyright/DB rights in government data.
    • Discourage ‘all rights’ transfers to publishers in academia.
    • Promote open licensing.
    • Require open access to publicly funded research.
    • Reconsider the privatisation of public data functions.
  • Jerry and Marie Thursby of Georgia Institute of Technology spoke about their research looking at how bio-scientists shared their research with each other, and generally with the public. Their talk gave a rich picture of the various incentives and behaviours involved in information sharing.

See also:

Participants at 5th COMMUNIA Workshop

The 5th Communia Workshop took place last month at the London School of Economics. It brought together researchers, policy-makers, stakeholders and representatives from across Europe, the United States and Australia for two days of talks and discussions about reusing public sector content and data.

In the afternoon of the first day, participants co-drafted a simple statement. If you support the statement, we encourage you to sign - regardless of whether or not you attended the workshop:

In addition many of the speakers made suggestions for policy recommendations, which are available at:

Documentation, including audio, video and slides, will be published at:

Material published so far includes:

You can also see:

The 5th COMMUNIA Workshop will take place in London next week - on the 26-27th March. There’s a great programme of speakers - and details of which are below. There are a handful of tickets left - so if you’d like to come along, make sure and register now! If you aren’t able to make it - we are going to publish audio and video documentation after the event.

Also, if you plan to attend OKCon 2009, which will take place on Saturday 28th March - we encourage you to get your ticket as spaces are limited!

5th COMMUNIA Workshop: Accessing, Using, Reusing Public Sector Content and Data

Across the world there is a growing recognition of the social and commercial value of public sector content and data: be that the text of laws, the holdings of public museums, or the geospatial and environmental information collected by government agencies. Moreover, it is likely that better access to and use of such information is central to improving governance and increasing democratic participation.

The 5th COMMUNIA workshop, co-organised by the Open Knowledge Foundation and London School of Economics, will focus on how we can unlock the huge potential of public sector material. It will also examine the current obstacles to doing this — legal, technological and social — as well as how they can be overcome. In particular, much of the value of public sector material can only be realized if it is reused and interlinked — both activities that are currently difficult for a variety of legal and technological reasons.

The workshop will bring together researchers, policy-makers, stakeholders and representatives from across Europe for presentations and discussions about projects, policies and practices aimed at disseminating, connecting and building upon public sector material.

Agenda

26th March

27th March