COMMUNIA FINAL REPORT | Communia Policy Recommendations

Subtitle: 
ANNEX III

One of the main goals of the COMMUNIA Network is to provide policy recommendations to strengthen the public domain in Europe. The COMMUNIA policy recommendations have been developed in accordance with the goals of the Europe 2020 Strategy,[1] Digital Agenda for Europe,[2] the i2010 Strategy,[3] and the Audiovisual and Media Policies.[4] 

As one of the seven flagship initiatives of the Europe 2020 strategy, the Digital Agenda for Europe (hereinafter “Digital Agenda”) is setting up several key principles and guidelines to redress many of the tensions challenging the full exploitation of the value of the digital public domain. Many of the key actions proposed by the Digital Agenda strengthen the conclusions and the call for policy actions put forward by COMMUNIA. In particular,

  1. i. digitization of the European cultural heritage and digital libraries are key aspects of the recently implemented Digital Agenda of the European Union. The Digital Agenda notes that fragmentation and complexity in the current licensing system also hinders the digitisation of a large part of Europe's recent cultural heritage. Therefore,
  1. a. rights clearance must be improved;
  2. b. Europeana - the EU public digital library - should be strengthened and increased public funding is needed to finance large-scale digitisation, alongside initiatives with private partners;
  3. c. funding to digitisation projects is to be conditioned to general accessibility of Europe's digitised common cultural heritage online.
  1. ii. The Digital Agenda calls for a simplification of copyright clearance, management and cross-licencing. In particular, the European Commission should create a legal framework to facilitate the digitization and dissemination of cultural works in Europe by proposing a directive on orphan works.
  2. iii. The review of the Directive on the Re-Use of Public Sector Information to oblige public bodies to open up data resources for cross-border application and services has been prioritized by the Digital Agenda.
  3. iv. Promoting cultural diversity and creative content in the digital environment, as an obligation under the 2005 UNESCO Convention, is an additional relevant goal of the Digital Agenda.
  4. v. The Digital Agenda is also very much concerned with harmonization and simplification of laws by calling for the creation of a “vibrant single digital market” and promoting the necessity of building digital confidence as per the EU citizens’ digital rights that are scattered across various laws and are not always easy to grasp.

In drafting these policy recommendations, COMMUNIA shares very much the vision of Neelie Kroes, European Commission Vice-President for the Digital Agenda, that “[c]ulture is the peak of human creativity and a source of collective strength” and “we want ‘une Europe des cultures.’"  The promotion of the public domain is empowering that “collective strength” and the European public domain is quintessential of “une Europe des cultures.” The riches of digitization may multiply endlessly our cultural collective strength. However, new enlightened policy approaches and solutions are needed to reap the benefits of the present groundbreaking technological advancement. Again, the words of the European Commissioner Kroes powerfully convey the agenda of a modern digital Enlightenment that COMMUNIA aspires to propel with the help of the Commission.

Just as artists have always travelled, to join sponsors, avoid wars or learn from masters far from home, now digital technology helps them to cross borders and break down barriers. Their work can be available to all. In a sense, the internet is the realisation of the Renaissance dream of Giovanni Pico della Mirandola: all knowledge in one place. Yet, it does not mean there are no more obstacles to sharing cultural and artistic works on the net. All revolutions reveal, in a new and less favourable light, the privileges of the gatekeepers of the "Ancien Régime". It is no different in the case of the internet revolution, which is unveiling the unsustainable position of certain content gatekeepers and intermediaries. No historically entrenched position guarantees the survival of any cultural intermediary. Like it or not, content gatekeepers risk being sidelined if they do not adapt to the needs of both creators and consumers of cultural goods. […] 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 demonise millions of citizens. But that is not a sustainable approach. […] My position is that we must look beyond national and corporatist self-interest to establish a new approach to copyright.[5]

Additionally, the COMMUNIA policy recommendations have been inspired by the perspective and values epitomized in the Public Domain Manifesto produced within the context of COMMUNIA, the Public Domain Charter published by the Europeana Foundation, the Charter for Innovation, Creativity and Access to Knowledge released by the Free Culture Forum, and the Panton Principles for Open Data in Science launched by Open Knowledge Foundation. Further, the interplay with many other institutional and civil society endeavours sharing many of the goals of COMMUNIA has been a source of inspiration for the COMMUNIA policy recommendations. People from Europeana, LAPSI, EPSI, the Economic and Social Impact of the Public Domain in the Information Society project, the European DRIVER project, Creative Commons, etc. have repeatedly participated to COMMUNIA activities and meetings and greatly influenced and broaden the vision that is now embodied in the COMMUNIA policy recommendations.

The COMMUNIA policy recommendations intend to re-define the hierarchy of priorities embedded in the traditional politics of intellectual productions and creativity. Any public policy of creativity should promote the idea that “information is not only or mainly a commodity; it is also a critically important resource and input to learning, culture, competition, innovation and democratic discourse.”[6] The agenda of the information society cannot be dictated by commercial interests above and beyond any of the fundamental values that shape our community. This approach would be a myopic understatement of the relevance of information in the information society. Therefore, “intellectual property must  find  a  home in a broader-based information policy, and be a servant, not a master, of the information society.”[7] In other words, the new policy for creativity envisioned by COMMUNIA shall revolve around the founding principle that the public domain is not “an unintended by product, or ‘graveyard’ of copyrighted works but its very goal.”[8] If Europe is eager to take up a leading role in the digital environment as stated in the i2010 strategy and the Digital Agenda for Europe, it is time to depart from the idea that the only paradigm available is a politics of intellectual property. Instead, it is pivotal to develop a global strategy and a new politics of the public domain. Private incentive to creativity shall naturally follow like exceptions from the rule, to quote again the Public Domain Manifesto.

Conversely, as Professor James Boyle and others have proposed during the COMMUNIA project, the delicate balance between copyrighted material and the  public domain should always be tested in advance of the enactment of any intellectual property policy. The following recommendation should serve, therefore, as a preliminary guidance to any policy interventions:

Creativity is enabled not by copyright alone, but by the delicate balance between the material that is protected by copyright and that which is intentionally left in the public domain.  As a result, every piece of intellectual property policy should be accompanied by an empirical "environmental impact statement" which details the effects of any proposal on the public domain and on public rights of access to cultural and scientific material.

COMMUNIA proposal for a new politics for the public domain shall encompass the review of the following strategic subject matters:

  1. Term of protection
  2. Copyright harmonization
  3. Exceptions and Limitations
  4. Misappropriation of public domain material
  5. Technological protection measures
  6. Registry system
  7. Orphan works
  8. Memory institutions and digitization projects
  9. Open Access to Research
  10. Public sector information
  11. Alternative remuneration systems and cultural flat rate

A politics for the public domain should (I) redress the many tensions with copyright protection by re-discussing term of protection, re-empowering exceptions and limitations, harmonizing relevant rules and adapting them to the technological change; (II) positively protect the public domain against misappropriation and technological protection measures; (III) propel digitization projects and conservation of the European cultural heritage by solving the orphan works problem and implementing a registry system; (IV) open access to research and public sector information; (V) promote new business models to enhance creativity including alternative remuneration systems and cultural flat rate.

On a final note, the recommendations included in the Report are meant to be principally addressed to the Commission. However, the recommendation portion of the Report has been envisioned as an agenda and stimulus to any other entity - Member States, national libraries, publishing industry, experts groups, etc. - that may promote or influence public domain related decisions. In addition, an inner integration between public domain projects at the European level and the international level is a goal recommended by COMMUNIA. The WIPO Development Agenda is very much concerned with the protection against appropriation and the promotion of the public domain through the implementation of recommendation 16 and 20 of the Agenda. The WIPO position on the public domain was presented at the 5th COMMUNIA Workshop in London[9] and the 7th COMMUNIA Workshop in Luxembourg.[10] In particular, many leading developing countries, such as Brazil, India, Egypt and Chile, are working for the promotion and the recognition of the public domain at the international level. The public domain may become the subject matter where the priorities of developing and developed countries meet. The European Union, strong of its networked and diversified efforts on promoting open access and the public domain, may lead the way in integrating the efforts of developed and developing countries towards the emergence of an affirmative protection for the public domain. This may be easily done by strengthening a more qualified presence of the European Union during discussion and negotiations of public domain issues within the WIPO Development Agenda framework. Hopefully, this may lead to more direct multi-party negotiations to build consensus on future international legal instruments. The integration between the efforts of developing and developed countries toward the promotion of the public domain may also counter-balance potential tensions developed within the negotiations of other pieces of international IP legislation, such as ACTA. The COMMUNIA network is a practical example of the successful workability of a diverse international network that was propelled by the institutional and civic society efforts of the European Union.


[1] See Commission Communication, Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth, COM(2010) 2020 (March 3, 2010), available at http://europa.eu/press_room/pdf/complet_en_barroso___007_-_europe_2020_-_en_version.pdf.

[2] See Commission Communication, A Digital Agenda for Europe, COM (2010) 245 final (May 19, 2010), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0245:FIN:EN:PDF.

[3] See Commission Communication, i2010 – A European Information Society for growth and employment, COM(2005) 229 final (June 1, 2005), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2005:0229:FIN:EN: PDF.

[4] See Council Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), 2010 O.J. (L 95) 1 (March 10, 2010), available at http://eur-lex.europa.eu/ LexUriServ/LexUriServ. do?uri=OJ:L: 2010:095:0001:0024:EN:PDF.

[5] Neelie Kroes, European Commission Vice-President for the Digital Agenda, A Digital World of Opportunities, speech delivered at the Forum d'Avignon - Les Rencontres Internationales de la Culture, de l’Économie et des Medias, Avignon, France, SPEECH/10/619 (November 5, 2010), available at http://europa.eu/rapid/pressReleasesAction.do? reference=SPEECH/10/619&format=HTML&aged=0&language=EN&guiLanguage=en.

[6] Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities, 66 Law & Contemp. Prob. 147, 171 (2003).

[7] Id., at 171-172.

[8] Michael D. Birnhack, More or Better? Shaping the Public Domain, in The Future of the Public Domain: Identifying the Commons In Information Law 60 (Lucie Guibault and P. Bernt Hugenholtz eds., Kluwer Law International 2006).

[9] See Richard Owens, WIPO and Access to Content: The Development Agenda and the Public Domain, presentation delivered at the 5th COMMUNIA Workshop, London, United Kingdom (March 27, 2009)

[10] See Richard Owens, WIPO Project on Intellectual Property and the Public Domain, presentation delivered at the 7th COMMUNIA Workshop, Luxembourg (February 1, 2010)