1. Selected Copyright and Related Rights (IPRs) Issues. The Interfaces Between IPRs and PSI Re-Use (or Open Data). Dr. Cristiana Sappa Project Manager of EVPSI and EVPSI Research Fellow at Torino Law School and Nexa Research Center for Internet and Society

2. Outline Introduction Introduction: What Are We Talking About? Objectives Objectives: Where Do We Want To Go? Keywords Keywords: How Can We Go There? Questions (/Area) Questions (/Area): Where and What Are The Problems To Be Solved?

3. What Are We Talking About? PSI (Introductory keynote of Marco Ricolfi) PSI (Introductory keynote of Marco Ricolfi) PSI may include (among others), legal, judicial, administrative, social, economic, geographical, cadastral, weather, tourist, cultural and business information (see recital 4 D. 2003/98/EC – OECD report - Proposal) IPRs: Copyright and related rights only (sui generis protection of databases is in) IPRs: Copyright and related rights only (sui generis protection of databases is in) How IPRs are linked to PSI? How IPRs are linked to PSI? - De facto - Why? -Legal framework (in particular Directive 2003/98/EC)

4. How IPRs and PSI are linked: Legal Framework Main References to IPRs in D. 2003/98/EC and in the Proposal of 12.XII.2011: - TRIPs Agreement (exclusive rights – implications: availability and price determination) -Art. 17 Charter of Nice on Fundamental Rights -Art. 1, 2 lett b) : (The Directive shall not apply to) Documents for which third parties hold IPRs (see also recital 7 of the proposal) -Proposal: R.8 and Art. 1, 5 (adde in fine): The provisions of this Directive are without prejudice to the economic or moral rights that employees may enjoy under national rules -Proposal: R.12 and Art. 6.2 (adde new incipit) : In exceptional cases, in particular where PSBs generate a substantial part of their operating costs relating to the performance of their public service tasks from the exploitation of their IPRs, PSBs may be allowed to charge for the re-use over and above the marginal costs, according to objective criteria, ….

5. How IPRs and PSI are linked: the Legal Framework Main References to IPRs of in D. 2003/98/EC and in the Proposal of 12.XII.2011 (in particular on cultural institutions): -Proposal: art. 1.2 on delimitation of the inclusion. -Proposal: R.7 (in fine): if a third party was the initial owner of a document held by libraries (including university libraries), museums and archives that is still protected by intellectual property rights, that document should, for the purpose of this Directive, be considered as a document for which third parties hold IPRs. -Proposal: R.12 and Art. 6.3 (adde new incipit) : …Libraries, museums and archives may charge over and above the marginal costs for the re-use of documents they hold.

6. Where Do We Want To Go? Enhance (Access and) Re-Use of PSI … and respect the existing protected interests, such as those protected by IPRs - (see norms on Copyright + Recitals 24,22 and art. 1.5 D. 2003/98/EC + above mentioned clauses of PSI Directive)

7. Where Do We Want To Go? Creation of Conditions enabling the economic growth and the social development 1. by fostering the (internal) market; 2. by enabling transparency and accountability; 3. by avoiding extra costs to the PSBs, if no way to decrease their costs; 4. by creating incentives for better implementing the public tasks and institutional missions of PSBs; 5. by respecting and enforcing fundamental rights and freedoms.

8. How Can We Go There? Valorizing the PSI Goldmine WORKS OF PSBs EMPLOYEES AND COMMISSIONED BY PSBs Such as: Reports, green papers, surveys Mere information data Works collected in museums maps datasets Works collected in libraries OFFICIAL ACTS OFFICIAL ACTS (Texts): Laws, Regulations, Cases, Decrees, Databases? Works Collected by broadcasters

9. IPRs as an Incentive for PSBs: The PSBs Perspective Works collected in libraries maps WORKS OF PSBs EMPLOYEES AND COMMISSIONED BY PSBs Such as: reports, green papers, surveys, databases Works collected in museums datasets PD data Mere information OFFICIAL TEXTS OFFICIAL TEXTS: Laws, Regulations, Cases Decrees, Some Databases? PD data Mere information Databases data Some databases? Works of broadcasters data And Acts?

10. IPRs as an Incentive for PSBs: The Re-Users Perspective Works collected in libraries maps WORKS OF PSBs EMPLOYEES AND COMMISSIONED BY PSBs Such as: reports, green papers, surveys, databases Works collected in museums datasets PD data Mere information OFFICIAL TEXTS OFFICIAL TEXTS: Laws, Regulations, Cases Decrees, Some Databases? PD data Mere information Databases data Some databases? Works of broadcasters data And Acts?

11. IPRs as an Incentive for PSBs: The Community Perspective Works collected in libraries maps WORKS OF PSBs EMPLOYEES AND COMMISSIONED BY PSBs Such as: reports, green papers, surveys, databases Works collected in museums datasets PD data Mere information OFFICIAL TEXTS OFFICIAL TEXTS: Laws, Regulations, Cases Decrees, Some Databases? PD data Mere information Databases data Some databases? Works of broadcasters data And Acts?

12. How Can We Go There? Openness (data, formats, licenses, procedures) Standardization (technical, geographical, procedural. Legal?) Interoperability (technical, legal, semantic and organizational) Sustainability

13. Where and What Are the Problems To Be Solved? 1. Rights Clearance: a) Existence of Rights b) Ownership Rules c) Input Licenses (Contracts) 2. Exercise of Rights (output licenses)

14. Where and What Are the Problems to be Solved? Rights Clearance I.We can easily re-use PSI and works NOT covered by IPRs - Mere Information (in particular if not included into a protectable database); - Works in the Public Domain; - Official Acts (?) II. We may easily re-use works covered by IPRs WHEN the PSB or the Public Undertaking making these works available HOLDS the IPRs needed for their re-use - Works of PSBs Employees (?) - Works Commissioned by PSBs (?) - Charging principles III. We cannot easily re-use PSI covered by IPRs belonging to third parties. - Works possessed by PSBs + see II + see current doubts on I.

15. The Open PSI Minefield Works collected in libraries maps WORKS OF PSBs EMPLOYEES AND COMMISSIONED BY PSBs Such as: reports, green papers, surveys, databases Works collected in museums datasets PD data Mere information OFFICIAL TEXTS OFFICIAL TEXTS: Laws, Regulations, Cases Decrees, Some Databases? PD data Mere information Databases data Some databases? Works of broadcasters data And Acts?

16. I. Are there IPRs on Official Acts? Definition and Legal Framework Often National norms exclude copyright protection for official texts http://etherpad.nexacenter.org/copyrightPSBshttp://etherpad.nexacenter.org/copyrightPSBs WHY? International Norms: Art. 2.4 CUB (and Art. 2bis CUB) leaves MS free to decide NB: EU norms (in particular art. 5 of Directive 2001/29) contain exception as to the content of copyright and some related rights

17. I. Are There IPRs on Official Acts? Problems, Implications. 1.As to the subject matter: A) Official texts: Fast circulation of information prevails on privatization of benefits related to the exploitation of works. B) Official acts:? 2. As to related rights, with particular reference to the sui generis protection of databases:? (3. Are current national frameworks in compliance with EU norms?)

18. I. Are There IPRs on Official Acts? What to do? As to 1.: is one single notion existing? the broader the better. But current national norms and cases no fully achieved harmonization As to 1.B): Adopt a broad interpretation (no strict interpretation – no discrimination) As to 2.: broad interpretation would and should be the solution for civil law countries. However a) we have common law countries in the EU; b) still legal uncertainty. Therefore amendement of PSI Directive on Sui Generis Protection of Databases or amendements of Copyright national norms on the exclusion of (specific) official texts from the protection (As to 3.: national provisions seem in compliance with EU norms)

19. II. Do PSBs Always Hold IPRs on the Works of Their Employees and on the Works They Commission? (This is also about INPUT licenses) Framework: National rules only: often IPRs (which ones?) are held (for how long?) by the PSBs, but not necessarily. Main question: Who is owning what? (in particular in PPP) Implications: No legal certainty, No harmonization R. 8 and Art. 1.5 adde in fine of the proposal 12.XII.2011

20. II. PSBs and Public Undertakings Do not Always Hold IPRs on the Works of Their Employees and on the Works They Commission WHAT TO DO (for enabling PSBs to become right owners)? Identify an appropriate forum/legal tool for introducing a general presumption stating that PSBs: - respect the moral rights of creators - hold the economic IPRs on the works of their employees and the work they commissioned - for the broadest use and re-use -for the entire copyright term (note on the Italian art. 29 Copyright Act). (…Still: R.12, art. 6.2 and 3 of the Proposal)

21. II. PSBs Do not Always Hold IPRs on the Works of Their Employees and on the Works They Commission HOWEVER: 1.This has to do with right ownership principles and contract interpretation. Both these issues are related to State sovereignity. Therefore: a)Possible reluctancy for any interference b)EU competence on this? 2. Are PSBs ready to bear the related costs of assignments? Is it worthy?

22. III. How to Enable Re-Use of PSI Covered by Third Parties IPRs? (beyond D. 2003/98/EC) (This may also be on INPUT licenses) The solution has to be found in the Copyright legal framework: -Internal limits: Broad interpretation of existing copyright exceptions and limitations (does not seem enough for enabling intensive digital re-uses)! -External limits: a) ex post : Competition law measures (?) b) ex ante: Interpretation of Contracts: Presumption of IPRs transfer when the PSI is possessed by a specific PSB. This does not seem possible so far (so far only?). See in particular the references to the interests of employees in the Proposal) Note on Cultural Institutions (see R.7 of the Proposal)

23. Where and What Are the Problems to be Solved? Exercise Recitals and artt. of the PSI directive dealing with the exercise of the rights: Rec. 8, 9 and artt. 3, 8 10 among others; Is there a duty to deal as implicit in the prohibition to discriminate? See Artt. 3 and 10(1); What are the implications of the prohibition to discriminate beyond the duty to deal? What is the rational for the ban of exclusivity? Why is recital 8 referring to fair conditions? What is meant by proportionate conditions? What other matters concerning exercise are there? Should exercise be harmonized further? Is there room for soft law in management of PSB IPRs? Guidelines? Should there be guidelines on exercise at the national level (one size fits all?);

24. Remarks and Questions? (Very Welcome!!)

25. Thank you! cristiana.sappa@unito.it