Policy recommendations

Find here COMMUNIA’s 20 Policy Recommendations for the Public Domain developed between late 2021 and early 2022, and launched in May 2022. These supersede the 14 policy recommendations published in 2011 and evaluated in 2021. Our recommendations identify possibilities for reshaping copyright in ways that expand the public domain and strengthen the rights of users and all types of cultural creators. We envision a copyright framework that maximises societal benefits by embracing the possibilities for wider access to knowledge and culture in an increasingly digitised environment. 

The policy recommendations focus on four areas: measures to defend and expand the public domain, measures that protect and promote usage rights, measures to empower creators and their audiences and measures that create safeguards against copyright abuse. Together with the Public Domain Manifesto they guide our advocacy work. 

COMMUNIA’s recommendations have been written with an European audience in mind and thus focus on improvements to the EU copyright legislation. Most of the underlying objectives and ideas will also apply in other contexts, however.

Defend and expand the public domain

  1. 1.
    The term of copyright protection should be reduced.

    Copyright’s excessive length and lack of formalities makes it harder to access our shared knowledge and culture. There is no evidence that copyright protection that extends decades beyond the life of the creator encourages the production of copyright protected works. Instead, the requirement to obtain permission for the use of works by creators that have long since died is one of the biggest obstacles to providing universal access to our shared culture and knowledge. Given the above, the term of copyright protection should be reduced.

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  2. 2.
    Full copyright protection should only be granted to works that have been registered by their authors.

    Unregistered works should only get moral rights protection, in order to prevent unnecessary and unwanted protection of works. To encourage the use of registration systems, any legal mechanism intended to strengthen copyright protection beyond what is required in binding international treaties (such as additional terms of protection, additional rights or additional enforcement mechanisms) should be made conditional on registration. In addition, there should be an easy, legally recognized way to dedicate works to the Public Domain at all stages of their life.

  3. 3.
    Works and data produced by the public sector should be in the Public Domain.

    Works and data produced by the public sector (such as official texts of a legislative, administrative, or legal nature) are part of an essential commons of information which is too important for the functioning of our societies to be burdened with copyright restrictions even for a limited period. To ensure a consistent and harmonised scope of the Public Domain, Europe needs to ensure that these materials are free from exclusive rights in all Member States.

  4. 4.
    Legislative power to reduce the Public Domain should be constrained.

    The introduction of new exclusive rights should be conditioned on strict criteria based on the principle of proportionality and clear economic evidence. Should there be a clearly demonstrated need for a new exclusive right or the expansion of subject matter covered —including related or sui generis rights— the introduction should be subjected to an experiment by letting the new right expire after a predetermined number of years unless a clearly defined public interest benefit has been demonstrated.

  5. 5.
    The Public Domain should be protected from private interests.

    Private encroachment of the Public Domain is a serious threat to a common wealth that belongs to all, and must not be appropriated by anyone. Private entities and individuals have a responsibility not to interfere with the right to freely access and use Public Domain works, and should face judicial scrutiny if they fail to do so. Europe should grant a positive status to the Public Domain and a legal standing to both users’ rights organisations and individuals, regardless of a concrete individual interest, to protect the right to use Public Domain works and to oppose any false and misleading attempts to claim exclusive rights over Public Domain works.

Protect and promote usage rights

  1. 6.
    Uses that serve freedom of expression and information should be fully protected at the EU level.

    The usage rights allowing quotation, criticism, review, parody, pastiche and caricature that have been harmonised in the context of Article 17 of the Copyright in the Digital Single Market Directive, as well as incidental uses, should be guaranteed by a mandatory exception at the EU level for all uses.

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  2. 7.
    The freedom to create should be protected at the EU level.

    Copyright laws should enable cultural practices that require the use and/or remix of parts of protected materials in accordance with fair practice, such as the use of protected works (e.g. historical or incidental footage) by documentary filmmakers for informational and illustrative purposes. Europe needs a new mandatory exception to copyright and other exclusive rights that allows anyone to build upon existing protected works for creative purposes, in accordance with fair practice. Where such uses take place in a commercial context they should be subject to remuneration.

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  3. 8.
    Educational uses should be fully protected at the EU level.

    The EU mandatory education exception assumes that education activities are carried out within dedicated educational institutions, whereas growing parts of learning, including life-long learning, are taking place outside of such institutions or in hybrid settings. Europe needs to take these realities into account by broadening the existing mandatory exception to copyright and other exclusive rights to facilitate all non-commercial educational activities, regardless of their institutional setting.

  4. 9.
    Research uses should be fully protected at the EU level.

    Public dissemination of research activities, including for purposes of verification of research results and for engaging in collaborative research, are essential to the scientific method. Europe needs a mandatory exception to copyright and other exclusive rights that facilitates all non-commercial research activities, including sharing of protected materials between researchers.

  5. 10.
    Libraries should be enabled to fulfil their mission in the digital environment.

    This includes the right for libraries to lend out works in digital formats under the same conditions as works in physical form. Controlled digital lending should be fully permitted at the EU level. In addition, libraries should be able to acquire works in digital form in a format that would leave libraries in control of the technical environment enabling digital lending.

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  6. 11.
    The right to repair should be fully protected at the EU level.

    Copyright law should not limit the right to repair, which is crucial for sustainability and user empowerment. Individuals should fully own the devices and digital content they buy and have the freedom to modify them. Europe needs a mandatory exception to copyright and other exclusive rights that allows the modification of devices for purposes of repairing them, as well as the sharing of repair information such as instruction manuals or blueprints.

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  7. 12.
    Uses protected by fundamental rights should be permitted even if not explicitly allowed by copyright laws.

    Fundamental rights should function as an external limit to copyright laws when those laws do not properly protect the rights enshrined in the EU Charter of Fundamental Rights. Europe needs to clarify that if existing exceptions to copyright and other exclusive rights lack flexibility to cover activities protected by fundamental rights, it should be possible for national courts to apply fundamental rights directly, further limiting exclusive rights, so as to reach an equitable solution that fully respects the Charter.

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  8. 13.
    Usage rights should be protected against technological and contractual override.

    Use of content protected by technical protection measures (TPMs) can be burdensome or even impossible, when there are no clear and rapid mechanisms in place to unlock such protection measures or when it is not possible to locate the owners of such measures. Circumvention of TPMs should thus be explicitly allowed when exercising usage rights, and the deployment of TPMs to hinder access to Public Domain material on copyright grounds should be prohibited. In addition, to protect users against abusive contractual practices and to ensure that they do not lose their rights, contractual terms that seek to prohibit usage rights should be rendered unenforceable.

  9. 14.
    Usage rights should be protected across borders.

    Users that engage in remote and online activities that require the participation and collaboration of individuals and institutions located in different countries trigger the application of multiple laws. Europe needs to ensure that provisions enabling the use of protected materials under copyright exceptions have a cross-border effect both inside and outside of the EU.

Empower creators and their audiences

  1. 15.
    Geo-blocking for audiovisual works should be prohibited.

    Audiovisual works made available to the public in one or more EU Member States must be available in all Member States under similar conditions. This is especially important for works that have received public support for their production or distribution. The widespread practice of geo-blocking access means that audiovisual works that are legally available in one part of the EU aren’t available in another. This goes against the goals of European integration and cultural diversity.

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  2. 16.
    Creators should have the right to know their audience.

    Online distribution is rapidly changing the relationship between creators, and traditional and new intermediaries. To strengthen the negotiation positions of creators in their relations with online distribution platforms, and to enhance the ability of creators to obtain fair compensation for the use of their works, online platforms and other intermediaries should be required to share with creators aggregate data on audiences and reach as well as rights management metadata. 

Create safeguards against copyright abuse

  1. 17.
    Users who act in reasonable belief that their uses of copyrighted materials are permitted should not face damages.

    Institutions that fulfil their public interest missions in a responsible and prudent way, as well as individuals that act for non-commercial purposes, should not be required to pay damages for engaging with copyrighted materials if they acted in the reasonable belief that such uses are permitted. Europe needs to make it mandatory for Member States to protect users and institutions acting with non-commercial purposes from claims for damages for infringement of copyright and other exclusive rights when they act in the reasonable belief that their uses are permitted by law.

  2. 18.
    Collective redress mechanisms should be available to protect usage rights and creators’ rights.

    Individual users of copyright-protected materials, as well as individual creators, are rarely in a position to assert and defend their rights in court. Europe needs strong collective redress provisions to allow users’ rights organisations, as well as creators’ associations, to intervene on issues such as copyright trolling, restrictions on the exercise of usage rights, or unfair or restrictive contractual terms.

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  3. 19.
    Copyright abuse should be prohibited at the EU level.

    To increase trust in the copyright system, Europe needs to impose sanctions on copyright abuse, such as false and misleading attempts to claim ownership of works, including Public Domain works, copyright trolling, the abuse of copyright enforcement systems for censorship, and other abusive practices.

  4. 20.
    Europe should ensure more transparency across the copyright ecosystem.

    To ensure that the public has access to reliable information on their rights, Europe should strive to create a public repository of Public Domain and openly licensed works. Among other things, such a repository would protect Public Domain and openly licensed works from copyright abuse (including by automated enforcement). In addition, collective management organisations should be required to share publicly their data on right holders, and platforms should be required to share publicly their data on enforcement actions.

Acknowledgements: The development of the 20 COMMUNIA Recommendations for the Public Domain was made possible through a generous donation by Pamela Samuelson and Robert J. Glushko. We are grateful to them and to the experts who have contributed to the development of COMMUNIA’s policy recommendations. Their names and institutional affiliations are provided here for context, and should not imply endorsement of the recommendations:

Alek Tarkowski (Open Future Foundation), Alexandra Giannopoulou (Institute for Information Law, University of Amsterdam), Ana Lazarova (Digital Republic Association), Andrea Wallace (University of Exeter), Anna Mazgal (Free Knowledge Advocacy Group EU), Ariadna Matas (Europeana Foundation), Balázs Bodó (Institute for Information Law, University of Amsterdam), Bernt Hugenholtz (Institute for Information Law, University of Amsterdam), Brigitte Vézina (Creative Commons), Camille Françoise (Creative Commons), Dimitar Dimitrov (Free Knowledge Advocacy Group EU), Felix Reda (Gesellschaft für Freiheitsrechte), Frederic Saunderson (Europeana Copyright Community), James Packard Love (Knowledge Ecology International), Jean Dryden (International Council on Archives), João Pedro Quintais (Institute for Information Law, University of Amsterdam), John Hendrik Weitzmann (Wikimedia Deutschland), Jonathan Band (Lawyer), Joschka Selinger (Gesellschaft für Freiheitsrechte), Justus Dreyling (Wikimedia Deutschland), Konrad Gliściński (Centrum Cyfrowe), Kristina Petrasova (Netherlands Institute for Sound & Vision), Maarten Brinkerink, (Netherlands Institute for Sound & Vision), Maja Bogataj Jančič (Intellectual Property Institute), Manon Ress (Knowledge Ecology International), Maria Drabczyk (Centrum Cyfrowe), Martin Husovec (London School of Economics), Mathias Schindler (Gesellschaft für Freiheitsrechte), Merete Sanderhoff (Statens Museum for Kunst), Pamela Samuelson (Berkeley Center for Law & Technology), Paul Keller (Open Future Foundation), Peter Routhier (Internet Archive), Sean Flynn (Program on Information Justice and Intellectual Property, American University Washington College of Law), Séverine Dusollier (Sciences Po Law School), Sofie Teugels (Design Museum Gent), Stephen Wyber (International Federation of Library Associations and Institutions), Susan Hazan (Digital Heritage), Teresa Hackett (Electronic Information for Libraries), Teresa Nobre (COMMUNIA), Thomas Margoni (Centre for IT & IP Law, KU Leuven), Till Kreuzer (iRights), Tito Rendas (Católica Global School of Law).

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