Copyright policymaking and the digital public domain: a bitter-sweet wishful thinking from France | International Communia Association

"The mission on culture at the digital era commissioned by the French government and supervised by Pierre Lescure, rather pompously entitled ‘Acte II de l’exception culturelle’, released its report this week in Paris: ‘Rapport sur la politique culturelle à l’ère des contenus numériques’, downloadable in two volumes on the website of the Ministry of Culture (in French). The Lescure Report is a new step in the policymaking on creative content in the digital society in France. Following the presidential elections last year, the new government wanted to induce reflection about the future of the HADOPI system adopted by the former government, and more generally on the protection of national culture on the Internet. The ambition heralded by this mission was big, so were the expectations about the resulting report. The Report addresses a wide range of issues (the first volume of the Report is about 480 page-long) spanning copyright exceptions, non-commercial sharing, liability of intermediaries, financing models to support culture digitization, digital libraries, online clearing of rights on photographs and copyright enforcement. Among its key proposals, the Report argues for the prolonging of the graduated response, albeit under new conditions and under the responsability of another administrative authority (the HADOPI authority would disappear), as well as a new taxing system targeting telecommunication operators meant to finance the transition of cultural industries to the digital age. Moreover, the Report concurs with conservative views on copyright enforcement and discards the proposals elaborating alternative remuneration systems for rightholders and legalizing non-commercial sharing of copyrighted content. Not surprisingly, it has been criticized for being skewed towards industrial interests and in carrying on the repressive policy against webusers (read the critical view from La Quadrature du Net on the ‘wishful thinking and real dangers’ of the Report). Despite these flaws, the Report takes account of some core considerations on the public domain and open licenses (as reported here), which represents a positive step considering that these issues have been overlooked for a long time by copyright national (and international) policymaking. Among its 80 proposals, the Report highlights the necessity to ‘protect and valorize the digital public domain’ (pp. 38 & 447 et seq) and contains proposals in line with some of Communia’s policy recommendations: [1]   A positive definition of the public domain ... The Report proposes to insert a positive definition of the public domain in national copyright law, as recommended by thePublic Domain Manifesto (cited by the report) and Communia at the international and European levels (see our Positive Agenda for the Public Domain) ... [2]  Towards clarification of the public domain status of works ...  In order to improve the visibility of public domain works, the Report argues in favor of the development of open registries of metadata and for the use of technical measures like the ‘Public Domain Mark’ developed by Creative Commons. These proposals are in line with our recommendations ... [3]  Preventing the privatisation of the public domain ... The Report warns against the ‘re-appropriation phenomenon’ and the claims for new layers of rights on digitized content (like the rights claimed for the creation of databases), thus restricting the scope of the public domain. The Report expressly concurs with Communia’s recommendation stating that what is in the public domain should stay in the public domain after digitization (see our Recommendation #5 and pp. 452-453 of the Report) ... [4]  Conciliating open access and valorization of public domain works ... Digitization agreements between cultural heritage institutions and private enterprises should not lead to the privatization of the public domain. The Report recommends that public interest organisations reaching such private-public partnerships should promote large and open access to public domain works and restrict exclusivity provisions ... [5]  Open licenses ... The Report contains further recommendations on open licenses, which has been welcomed by Creative Commons France. More particularly, it encourages collective management organisations to devise solutions allowing for the coexistence of open licenses, notably by allowing the members of collecting societies to opt for such licenses (Recommendation #77). This is a significant point