Today, COMMUNIA is releasing Policy Paper #18 on limitation of liability for knowledge institutions (also available as a PDF file), in which we propose to lay down at Union level that knowledge institutions shall be sheltered from liability so long as they act in a responsible and prudent way, having reasonable grounds to believe that they have acted in accordance with copyright law.
Individuals and organisations who frequently interact with copyright-protected material in a professional capacity are often overwhelmed when it comes to determining what they may or may not do, simply due to how complex the European copyright system is. Currently, there are 13 directives containing semi-mandatory rules directed to Member States, and two regulations with unified rules, all combining to create a multiplicity of different copyright regimes in 27 legal jurisdictions. Educational, research and cultural heritage institutions – or knowledge institutions for short – have to navigate the copyright framework on a daily basis, as they work very closely with content that is protected under copyright or where the situation of right ownership is unclear. Despite their best efforts, many of these institutions struggle to appropriately assess which rights they have when using copyright-protected works. This is because almost any word in the law can be subject to dispute and legal uncertainty. As a result, knowledge institutions are frequently put in a position where they have to make complicated choices between potentially risking to infringe copyright or passing up on opportunities to create or preserve knowledge by not using certain materials.
This creates a massive chilling effect on knowledge institutions and the practitioners working in these establishment who will in many cases shy away from using copyrighted materials for educational, research, preservational or related purposes out of fear of litigation. In order to mitigate this chilling effect, we are proposing that that knowledge institutions, including the persons attached thereto, should not be required to pay damages for copyright infringement when using copyrighted materials in their activities, if they act in a responsible and prudent way, believing or having reasonable grounds to believe that they have acted in accordance with copyright law. Such a mechanism would be the best way to ensure that knowledge institutions are not held back by unfit and overly complicated copyright rules which cause delays, confusion and may even force institutions to avoid international cooperation or abandon projects altogether. To that end, we highlight various legislative approaches from jurisdictions across the globe that already implement this idea, protecting knowledge institutions and empowering them to pursue their public service mission, which may serve as examples for a European approach.
Resolving these issues would ideally be part of a more comprehensive regulation, a Digital Knowledge Act, which addresses the needs of research organisations and other knowledge institutions in the digital environment more broadly.
