Earlier this week i found myself in the bathtub reading through this list of voting recommendations by the ‘Audiovisual Coalition/EP CULT Committee‘ on the ‘Proposal for an orphan works directive’. The voting list makes voting recommendations with regards to amendments (proposals to change the text of the proposed directive) suggested by various Members of the European Parliament. In total it lists 230 amendments and recommends either to vote for them or against them. Here is one of them (amendment 195 by Jean-Marie Cavada):

For me these two boxes full of text pretty much capture a lot of what is wrong with public policy making in the field of copyright. But first, let’s recall what this directive is about:

1. There is a large class of copyright protected works where the rights holders are unknown or where it is unknown if they are still protected by copyright.
2. Copyright law makes most uses of a copyright protected work conditional on the permission by the rights holder(s).
3. Such permission cannot be obtained when the rights holder is unknown when it is unknown if there still is a rights holder.
4. As a result works without a known rights holder (‘orphan works‘) cannot be used without infringing copyright.
5. This outcome is highly undesirable since it does not benefit anyone, neither the rights holders nor members of the public who might want to use such works.

The proposed directive on orphan works seeks to address this issue by allowing certain uses of orphan works on the condition that a diligent search has been carried out and that this search has failed to locate the rights holder. The core of the proposal is relatively undisputed. The discussion in the European Parliament (and in other places) centers on the scope of the above mentioned ‘certain uses’ and the question who should be entitled to make such uses.

This is where the above snippet from the voting list becomes intresting. MEP Cavada proposes (left box) to add a new article to the directive that would allow broadcasting organizations to use recognized orphan works (i.e works where a diligent search to locate a rights holder has been unsuccessful):

4a. For this Directive to be fully effective, broadcasting organizations need to be able to use recognized orphan works, under the conditions established by this directive, in the course of their normal activities.

In response, the voting list compiled by the CULT committee indicates that MEP’s should vote against this amendment and provides the following argument to support this recommendation (right box):

The inclusion of commercial broadcasters is not compatible with the public policy objectives of this proposal.

Now the interesting part of the argument is the reference to a ‘public policy objective’ that is said to underpin the proposed directive. As i have outlined above the objective of the proposal is to make copyright protected works that have been rendered inaccessible by a dysfunctional copyright system available again.

Available for the public to access these works, but also available for the public to re-use them, and to build upon them. So the public policy objective of the proposed directive is to provide access to these works and it should be self evident that (commercial) broadcasting organization are an important platform facilitating such access.

For some reason the CULT committee of the EP (and many other stakeholders in this debate) seem to have completely lost track of this objective. Instead of promoting access to works that are rotting away in archives (often at enormous costs to the public that is paying for archiving and preserving them), every possible effort is undertaken to limit access to orphan works as much as possible.

The general consensus seems to be that only non-commercial uses by non-commercial cultural heritage institutions who have the actual works in their collections should be allowed. Quite obviously this is not in line with any public policy objectives, since it keeps the works out of reach of most of the public.

The reference to the public policy objective in the voting recommendation perfectly illustrates to what degree the discussion about orphan works (and more broadly copyright) has been captured by special interests. Those trying to limit the scope of the directive are willing to risk enormous amounts of collateral damage in order to make sure that the ideology of unalienable exclusive rights of authors does not get undermined.

It is pretty disappointing to see that the CULT committee of the European Parliament seems utterly incapable to distinguish between special interest driven ideology and public policy here.

Stumbled across this little hidden gem in an interview on ‘Tendencies and stakes of copyright’ that Lorena Boix Alonso (Deputy Head of Cabinet of Neelie Kroes) gave to the Forum D’Avignon (emphasis mine):

For example, according to recent studies many consumers are confused about what they are allowed to copy or record concerning content leading to negligible costs of reproduction they have legally, to the point that in many cases consumers are even paying for unauthorised access to content. Moreover, they do not seem to be aware of the value of IPR. With digitisation of content, users tend to forget the creativity part behind an item and do not measure the impact of their action. These factors make IPR enforcement difficult. This is why IPR enforcement actions by governments are often not understood by the users.

This is quite an amazing quote. as far as i understand economics, value is not something that is determined by the producer of a work and that consumers need to become aware of.

Instead value is something that is usually determined in market transactions between suppliers and consumers. As long as misguided ideas such as the one expressed by Lorena Boix Alonso in the interview above are used to structure the discussion about copyright in the digital age, we will never manage to resolve this discussion.

Instead of fabulating about inherent values of digital goods (and then leaning on policy makers to somehow enforce these fantasies), rights holders really need to understand that what they need to do is making offers to consumers that are attractive to them.

So one of the more memorable moments of this mornings rather dystopian ICT and management of creative content session at the Digital Agenda Assembly came when the representative from EMI publishing tried to make an argument by stressing that consumers can already buy music via iTunes under clear terms. In reaction to my interruption that these clear terms consist of 60 pages of legal gibberish he replied ‘i am a music industry lawyer and even i don’t read them’, which in return made everybody laugh a little bit and continue the discussion.

I don’t know how often i have heard this or a similar reaction before but it starts to really irritate me. If the very people who are responsible for these insane terms of use think that they are a joke, then maybe legislators should seriously consider mandating a ‘i think these are a joke’ option or a ‘i am a record industry lawyer and i can’t be bothered’ button next to the ‘i accept button.

… or at least way too long. Ben White of the British Library gave a really good illustration of this during his presentation at the EuropeanaConnect workshop on Extended Collective Licensing that took place in Luxembourg over the last two days.

On one of his slides he showed the results of a recent study on the commercial availability of print publications that the BL had done. For this study they took 10 random publication from each decade between 1870 and 2010 and checked how many of them are commercially available today:

Full presentation available here

The result is rather striking: there is a rapid drop of commercial availability after (or rather during?) the first 10 years after a work has been published. This indicates that for the majority of all publications copyright protection is way too long. The fact that commercial availability of the surveyed works starts to increase again after seven decades (when works start to appear in the Public Domain in some jurisdictions, and are subsequently offered by print on demand services based in these jurisdictions) also shows that the current, excessive length of copyright protection is not only unnecessary but harmful to society since it leads to reduced commercial availability of older works and thus deprives the public of access to them.

If you combine this insight with recommendation of the Public Domain Manifesto you have a strong argument for a drastic reduction of the term of protection.

Had a bit of a deja-vu this morning when browsing through the economics section of friday’s NRC Handelsblad: Page two of that section contains a full page article (‘free jukeboxes against piracy’) on music streaming services such as spotify.com (click to enlarge, no online version available):

As you can see from the photo above, the article does come with a nifty info-graphic that illustrates how little artists earn from their music being available on services such as spotify (the number 4.882.758 in the green circle indicates how many times a single song needs to be played by users of spotify in order generate an income that is equal to the minimum wage in the Netherlands).

Now there is nothing wrong with this info-graphic as such, but there are two rather dubious aspects: the article is not providing any information with regards to the source of the data used and i had the strong impression that i had seen this info-graphic before (the deja-vu mentioned above).

A quick google query reveals that this was indeed the case: in april 2010 informationisbeautiful.net published a strikingly similar info-graphic (‘How much do music artists learn online?’) that obviously served as the basis for the illustration in the NRC:

The overall numbers are different, but that is simply the result of the fact that the NRC article is using dutch minimum wage (€1.416) as a reference point while the original used the US minimum wage ($1.160). this results in different sales numbers required to generate minimum-wage level income but for the rest the data used to illustrate the NRC article is identical (even worse they simply took the original artists revenue numbers that were expressed in dollars and simply re-stated them in euros).

It is bad enough that the NRC simply lifts these numbers from a website (which itself did took most of the figures from another blog, but makes that very clear by giving credit both to the originating blog and pointing out additional data sources) without giving credit. This is not only plain old-plagiarism (especially dumb if the subject of the article is ‘piracy’) but also grossly misleading: If the NRC article would have given credit to the source readers would have had the opportunity to take a look at the source themselves and would have learned that the figures presented by the NRC are missing an important caveat that is present in the original blogpost on informationisbeautiful.net:

Note: these figures do not include publishing royalties (paid to composers of songs). The full spreadsheet of data does though. You can see all the numbers and sources here: http://bit.ly/DigitalRoyalty

If you click through to the google docs spreadsheet with the full numbers you will see that if you count publishing royalties the amount of plays of a song on spotify required to make minimum wage is reduced by almost 75%. This still means that you need north of 1 million plays (which still is outrageous) but apparently 4.8 million required plays look a bit better when you want to illustrate an article.

This once again shows that the NRC really needs to realize that the days where they were the ‘quality newspaper’ more or less by default are over. Pointing out your sources is one of the key ingredients of credible journalism and unfortunately for the NRC it seems that new media outlets such as informationisbeautiful.net are lightyears ahead of the NRC here…

Not sure why this is happening, but it appears that commons sense is slowly starting to make a comeback in the discussion about copyright. Yesterday we had the British Prime Minster announce that his government is undertaking a review of the parts of the intellectual property laws in order to enable more flexible use of copyright protected works along the lines of the the US fair-use doctrine:

The second new announcement I can make today is to do with intellectual property.

The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.

Over there, they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. I want to encourage the sort of creative innovation that exists in America.

This obviously is a huge win for Google (they have been preaching this for years to European and UK policy makers) and also needs to be taken with a huge grain of salt (the UK government basically ignored all the outcomes of the last review that called for less restrictive IP laws and even implemented changes that the review had advised against).

On the other hand the British MP does not seem to be the only high ranking official who seems to have changed his mind when it comes to copyright in the digital environment. Earlier Today Neelie Kroes, the EU’s commissioner in charge of the digital agenda gave a speech in Avignon in which she almost sounds like a copy-fightin-free-culture-activist:

Today our fragmented copyright system is ill-adapted to the real essence of art, which has no frontiers. Instead, that system has ended up giving a more prominent role to intermediaries than to artists. It irritates the public who often cannot access what artists want to offer and leaves a vacuum which is served by illegal content, depriving the artists of their well deserved remuneration. And copyright enforcement is often entangled in sensitive questions about privacy, data protection or even net neutrality.

It may suit some vested interests to avoid a debate, or to frame the debate on copyright in moralistic terms that merely demonize millions of citizens. But that is not a sustainable approach. We need this debate because we need action to promote a legal digital Single Market in Europe.

My position is that we must look beyond national and corporatist self-interest to establish a new approach to copyright. We want “une Europe des cultures” and for this we need a debate at European level.

you can read the full speech here (to be checked against delivery, but since she tweeted the essence here, here & here we can be relatively sure that she actually said this).

Again this needs to be taken with a huge grain of salt, since both the UK government and the EU commission are continuing to push for more restrictive IP rules through the secretive and totally not-evidence-based ACTA process, but maybe we are witnessing something like a turning point here. Another hopeful sign is that even the Americans are doing surprising things these days…

In the light of yesterday’s rather confusing and unconstructive discussion about ‘risks and rewards’ at the Europeana ‘open culture 2010‘ conference, i thought that it might be useful to clarify a number of things. If you take a step back from form your favourite grief about copyright/public funding and look at the larger picture the whole risks and rewards discussion is actually quite simple:

Say you are a cultural heritage institution that wants to make digital representations of cultural artifacts (your ‘content’) from your collection available online: First you will need to ensure that you are actually allowed to offer these digital representations online (for example because the artifacts are out of copyright (in the public domain) or because you have managed to obtain permission to do so from the copyright holders). Once you have succeeded in this you will probably make some descriptive metadata about the objects available alongside the digital representations (if you don’t it will be very hard for users to find and to make sense of these digital representations)

Now say you want (or have to¹ work with Europeana, what does that mean for your content and your descriptive metadata? You work with Europeana by contributing descriptions about the digital representations that you want to make accessible via www.europeana.eu to Europeana. In order to be able to point people to your content Europeana needs to have these descriptions. In contrast to your metadata Europeana does not need or want you content².

Now what happens if you give your descriptive metadata to Europeana? Europeana will use it in order to point its users to your content. In order to do so Europeana will transform, combine and enrich your metadata with other relevant metadata that has been contributed by other heritage institutions. In order to fully leverage the possibilities offered by the web it also needs to make your metadata available online without restrictions (this is called linked open data, and if you want to understand why this is amazing you should go read the excellent primer on the next generation European Data Model by Stefan Gradman et al).

Now that sounds scary: ‘your metadata available without restrictions’. So lets break down the risks: First of all you loose some control over your metadata since others can work with it as well. This risk squarely falls into the category of a known unknown since you wont be able to tell right now if that loss of control will have positive or negative consequences. Secondly there is a risk of loosing imaginary revenue³: other parties might somehow generate revenue based on your metadata (this is more if an unknown unknown).

But since there are risks to making available your metadata without restrictions, there are also rewards: if your metadata is not available on Europeana users cannot find your content via Europeana. Being findable via Europeana will bring more users to your content and making your metadata available to Europeana will also result in Europeana enriching your metadata (and you are then free to incorporate enriched metadata in your own system or not).

Now all you have to do yourself is to decide if the risks out-weight the rewards: If they do then you should not make metadata about your content available to Europeana and you will not have to face these risks. On the other hand if the rewards out-weight the risks then you should probably make your metadata available to Europeana (and of course you can always experiment with a small portion of your metadata first to see if your cost benefit analysis is correct, you can also exclude your most valuable metadata or provide subsets).

In the end this really comes down to this: Europeana is a search engine that will help people find your content based on the descriptions of the content that are providing to Europeana. If you don’t provide descriptions your works can’t be found via Europeana and you do not have to face any of the risks described above⁴.

So imagine this scenario: you are on an isolated tropical island that does not have a bookstore, you are out of books, but you happen to have an electronic reading device with you that is wirelessly connected to the internet and that is tied to you credit card account (which is not maxed out). This should constitute one of the most ideal business cases for selling books to this particular individual, but for some reason the publishing industry does not seem to be willing to cater to this scenario.

Two months ago while on vacation i found myself in this very scenario (aggravated by the fact that i had left my copy of Salinger’s ‘the Catcher in the Rye‘ with 30 unread pages to go on the ferry boat that took us to the island). Unfortunately for me (and the rights-holders) you cannot buy an electronic copy of ‘the Catcher in the Rye’ from the international kindle store run by amazon. instead you can get about 13 different books that deal with the ‘Catcher in the Rye’ in some form or another (reading helps, studies of the book etc) but the original text is notably absent from the international kindle bookstore. The most likely reason is that some publisher has decided that it is somehow not in his/her interest to to sell the book to people like me¹.

So instead of reading the final chapters of ‘the Catcher in the Rye’ i was forced to read the the New York Times (which is available via the kindle no matter where you are) for 7 days and once we were back on an island with a second hand bookstore i purchased a 2nd hand copy of the ‘Catcher in the Rye’ and finished the book. Of course all of the money i spend on that second hand copy (which was more than the price of the original paperback that i had left on the ferry) is going to the owner of the bookstore and none of it is is ending up in the pockets of the publishers or the author (who is dead so in this case the stupidity of the publishers does not harm the author).

Obviously there real danger to authors is not that people who are unable to obtain ebooks because of rights-issues will turn to second-hand bookstores. Instead it is more likely that they will turn to file-sharing networks and other sources for unauthorized copies instead. Already there are more unauthorized ebook editions than there are books on the international kindle book store and the only reason why this has not yet become a real problem is that only a few people own specialized reading devices. This of course will rapidly change over the next couple of years.

If the publishing industry does not get its act together and makes sure that we can purchase all books on whatever platform we like right after they have been published regardless where we happen to be, it will find itself in exactly the same position as the music industry is finding itself for the last 10 years. Of course they are free to do so should they really want to end up there, but since they have been warned it would be nice if they could refrain from the disgraceful whining that we have had to endure from the music industry for the past decade. The choice is theirs…

Just came across this brilliant foto while reorganizing my photo folder (i am locked away in a museum basement without any form of internet access: no wireless & no mobile phone reception):

I took this at a stall selling bootleg CDs at the Kwakoe Festival in Amsterdam southeast in the summer of 2006. To me it perfectly captures the essence of the revolution caused by napster when it launched 10 years ago (give or take a couple of weeks): If your work is not available on napster is is probably not good either. accept to be copied or become irrelevant.

Given that this has been going on it is stonishing how few people seem to have understood that this basic shift in how we relate to cultural goods has already happend….

You might have heard that the Wikimedia Foundation and the National Portrait Gallery arehavinga bitof arow these days. At the core of the dispute lies the fact that in march an English wikipedia administrator by the name of Derrick Coetzee uploaded more than 3000 high resolution images of paintings held by the National Portrait Gallery to the Wikimedia Commons.

The images uploaded by were not simply taken from the NPG’s website and re-uploaded to the wikimedia commons, as the NPG does (and did) not provide high resolution images files on it’s website. While the NPG website only offers relatively low resolution images (see this page for a typical image provided by the NPG and this page for the high resolution version uploaded by Coetzee), Coetzee managed to use the website’s zomify feature (now disabled) in order to obtain the high resolution files and subsequently uploaded them to the Wikimedia Commons.

While the NPG does not dispute that the original paintings are in the public domain, it argues that Coetzee’s action violates a numer legal regimes that give the National Portrait Gallery the exclusive right to determine how these reproductions are distributed. According to an email send by the NPG’s law firm to Coetzee his actions constitute an Infringement of the NPG’s copyright in those images as well as an infringement of the NPG’s database right (in the database populated by these works). In addition the NPG argues that Coetzee’s actions constitute an unlawful circumvention of technical protection measures (even though zomify clearly states that zomify is not an image security system) and breach of contract. While all of these are serious allegations (the last one is a bit silly if you ask me) the current debate very much centers on the question if the National Portrait Gallery should have a copyright regarding these images. In a post on boingboing.net Cory Doctorow lays out why this is such a fundamental question:

In Britain, copyright law apparently gives a new copyright to someone who produces an image full of public domain material, effectively creating perpetual copyright for a museum that owns the original image, since they can decide who gets to copy it and then set terms on those copies that prevent them being treated as public domain.

Regardless of the fact that this is obviously problematic the general consensus seems to be that under British copyright law the NPG does indeed hold a copyright in the photographic reproductions (because the making of the reproductions of these paintings required a significant expenditure of labour) while under US law (the wikimedia foundation is based in the US) it does not.

So on one side we have the NPG claiming that it’s copyrights have been violated and that Coetzee/Wikimedia should therefore remove the high res-images from the Wikimedia Commons and on the other side we have Coetzee (backed by the Wikimedia Foundation, many wikipedians and Creative Commons) claiming that these images belong to the public domain and do not need to be removed. The wikimedia foundation’s Erik Möller has outlined this position in on the Wikimedia Foundation’s blog:

The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums. In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:

“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.” [source]

Some in the international GLAM [pk: Galleries, Libraries, Archives and Museums] community have taken the opposite approach, and even gone so far to suggest that GLAM institutions should employ digitial watermarking and other Digital Restrictions Management (DRM) technologies to protect their alleged rights over public domain objects, and to enforce those rights aggressively.

The Wikimedia Foundation sympathizes with cultural institutions’ desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions’ educational mission. It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopedia serves any public interest whatsoever.

I completely agree with the position taken by the Wikimedia Foundation here. It should not be possible to monopolize public domain works by obtaining copyrights in simple (or even complicated) reproductions of these works. Once the copyrights in the original works have expired those who formerly held the copyright or those who happen to own the physical works should not have any exclusive right to determine what third parties can do with reproductions of these works. As far as i am concerned this is one of the fundamental principles of the public domain which cannot be pushed aside by museums in search of online business models¹.

However i have the feeling that this principle is not the only thing that should be considered in the current dispute. It is likely that in this particular case the National Portrait did not knowingly publish the high resolution photos of these portraits:

Assuming a certain level of technological ignorance on behalf of the NPG it is fairly safe to assume that they thought they where only making available 500 * 400 pixel images and allowed users of the website to see 500 * 400 px sections of the paintings in high resolution. Before Coetzee proved them otherwise the NPG probably never realized that this meant that the entire high-res files needed to be on a web-server somewhere².

Does the public domain status of the original paintings requires the NPG to make available the high-res photos? As far as i can see not. The public domain status of these paintings means that nobody has the right to control their reproduction and publication of reproductions anymore, but it does not mean that all reproductions of these pictures must be freely distributed. Just as i can take a photo of a public domain work and keep it for myself the NPG can decide to take these pictures and then keep them for whatever they please to do with them³: There simply is no right of access to public domains works or their reproductions.

If you consider this it is a little bit easier to understand the position of the NPG. They never knowingly published the high-res versions of these images and all of a sudden they appear on Wikipedia and there does not seem to be a way to control their distribution anymore. At this point it is very much a theoretical question if the NPG has a right in these images or not because the images are out on the net and there is absolutely no way for anyone to regain control over them ever again (regardless of how the legal dispute will end).

However it is important to note that before these images got out onto the net the NPG did not try to control their distribution by asserting copyright but simply by not making them available, knowing (one assumes) that once they were available their copyright claims would be without much effect no matter how much these are backed by British law.

Given all of this i do think that it will be counterproductive to use this particular case in order to defend the principle that there should be no right of exclusive control over the distribution of reproductions of public domain works (as the blog post by Erik Möller implies). Instead this dispute is really about access control to these files.

If one is really interested in working on getting as many good quality reproductions of public domain works online then it is necessary to work with cultural heritage institutions by convincing them that making available these files without restrictions is in the best of their interest (as a number of Wikipedia volunteers argue in this excellent open letter).

Working with cultural heritage institutions means that contributing to repositories of freely licensed and public domain works such as the Wikimedia Commens should always be based on conscious and voluntary decisions by those in a position to make material available⁴. There is a growingnumberof examples of such behavior and it is probably only a question of time (and hard work on behalf of wikipedians) before more cultural heritage institutions recognize that making available their collections rather than keeping them locked away in search of marginal income from licensing[5] is more likely to strengthen their position in the digital environment.

It might very well be contra-productive to insist that the images obtained by Coetzee are not ‘protected’ by copyright as this is likely to make cultural heritage institutions feel even more threatened by public domain advocates. Instead this energy should be focussed on convincing cultural heritage institutions that it is in their best interest to to make their collections available as open as possible.