Communication from the Commission - Copyright in the Knowledge Economy
Date: 2009-10-19
Institutions: European Commission
Subjects: copyright, digitisation, disabled person, dissemination of information, intellectual property, knowledge economy, library, public consultation, research, teaching

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.10.2009 
COM(2009) 532 final 

COMMUNICATION FROM THE COMMISSION  

Copyright in the Knowledge Economy 

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COMMUNICATION FROM THE COMMISSION  

Copyright in the Knowledge Economy 

Text with EEA relevance 

TABLE OF CONTENTS 

1. 

2. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

3.5. 

4. 

INTRODUCTION........................................................................................................ 3 

THE GREEN PAPER AND PUBLIC CONSULTATION ......................................... 3 

NEXT STEPS: BUILDING ON THE RESULTS OF THE CONSULTATION ........ 4 

Libraries and archives .................................................................................................. 4 

Orphan Works .............................................................................................................. 5 

Teaching and research.................................................................................................. 6 

Persons with disabilities............................................................................................... 7 

User-created content (UCC)......................................................................................... 9 

CONCLUSIONS........................................................................................................ 10 

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1. 

INTRODUCTION 

Creation, circulation and dissemination of knowledge in the Single Market are directly linked 
to the broader goals of the Lisbon Strategy. Technological developments have facilitated the 
availability of information in electronic form.  

Libraries  are  interested  in  mass  digitisation  projects  to  preserve  their  archives  and/or 
disseminate  them  online,  including  the  use  of  orphan  works  (works  where  right  holders 
cannot be identified or traced). Research and teaching establishments want more flexibility to 
disseminate  materials,  including  in  cross-border  distance  learning.  Persons  with  disabilities 
continue  to  experience  obstacles  in  accessing  information  or  knowledge  products.  In 
particular, visually impaired people are pushing to counter their “book famine” - only 5% of 
European  publications  are  available  in  accessible  formats,  a  situation  compounded  by 
restrictions on cross-border distribution, even between countries sharing a language.  

Publishers and authors are concerned that library-sponsored or other mass digitisation projects 
and  online  dissemination  of  their  works  without  due  diligence  search  could  infringe  their 
copyright and erode their revenue streams. Publishers claim they already make some 90% of 
scholarly  journals  available  online,  are  investing  in  new  and  innovative  electronic  delivery 
models  (e.g.  e-books),  including  for  distance  learning,  and  provide  access  for  visually 
impaired persons.  

It is against this background that the Commission launched a public consultation on the Green 
Paper  on  Copyright  in  the  Knowledge  Economy1.  The  aim  was  to  examine  how  a  broad 
dissemination of knowledge in the Single Market, notably in the online environment, could be 
achieved in the context of existing copyright legislation, specifically Directive 2001/29/EC on 
the harmonisation of certain aspects of copyright and related rights in the information society 
("the  Directive").2  This  Communication  provides  an  overview  of  the  outcome  of  this 
consultation.It  announces  a  series  of  preparatory  actions  which  will  be  a  solid  basis  for 
concrete follow-up initiatives as part of an ambitious and comprehensive intellectual property 
strategy to be presented by the next Commission.  

2. 

THE GREEN PAPER AND PUBLIC CONSULTATION 

The  Green  Paper  dealt  with  general  issues  on  exceptions  to  exclusive  rights.  It  examined 
whether  exceptions  that  are  most  relevant  for  the  dissemination  of  knowledge  should  be 
developed.  It  also  looked  into  the  issue  of  contractual  agreements  and  licensing  models.  It 
enquired  whether  exceptions  and  limitations  relating  notably  to  libraries  and  archives, 
teaching  and  research,  and  persons  with  disabilities  should  evolve  in  the  era  of  digital 
dissemination. It raised questions concerning orphan works as well as consumer issues such 
as user-created content.  

The consultation yielded 372 responses. The Commission received replies from: (i) publishers 
(56); (ii) collecting societies and licensing agencies (47); (iii) universities (47); (iv) libraries, 
archives and museums (114); (v) industry and commercial federations (30); (vi) organisations 
representing persons with disabilities (4); (vii) Member States (11); and (viii) others (63). 

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COM (2008) 466 
Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council  of  22  May  2001  on  the 
harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 
22.6.2001, p. 10-19.  

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Broadly speaking two divergent views emerged. Libraries, archives and universities favor the 
“public  interest"  by  advocating  a  more  permissive  copyright  system.  Publishers,  collecting 
societies  and  other  right  holders  argue  that  the  best  way  to  improve  the  dissemination  of 
knowledge  and  provide  users  with  increased  and  effective  access  to  works  is  through 
licensing agreements.  

Libraries  and  academics  state  that  certain  exceptions  are  more  important  for  the  knowledge 
economy  than  others.  They  favour  a  mandatory  set  of  core  "public  interest"  exceptions  to 
facilitate  "access  to  knowledge".3  They  also  expect  that  these  exceptions  are  not  rendered 
moot by technological protection measures (TPM). The confines of copyright should instead 
be defined by the legislator.  

Publishers,  collecting  societies  and  other  right  holders  consider  that  an  equally  satisfactory 
result can be achieved by contracts, often tailor-made to cater to new technologies. Publishers 
state that mandatory exceptions could undermine economic rewards and encourage so-called 
"free-riding".  

The dawn of the online culture of sharing and swapping, data mining and interactive learning, 
has exposed a difference of views between those who wish to move toward a more permissive 
system  of  copyright  and  those  who  wish  to  preserve  the  status  quo4.  The  challenge  is  to 
reconcile  these  interests.  There  are  several  policy  tools  at  the  Commission's  disposal  to 
achieve this.  

3. 

NEXT STEPS: BUILDING ON THE RESULTS OF THE CONSULTATION  

This section of the Communication presents the main findings of the consultation with respect 
to  the  issues  of  digital  preservation  and  dissemination  of  scholarly,  cultural  and  educational 
material, the use of orphan works, access to knowledge for the persons with disabilities and 
user-created  content.  It  also  highlights  actions  which  the  Commission  intends  to  launch  in 
order to find suitable solutions to the problems that have been identified in the consultation. 

3.1. 

Libraries and archives 

Two  core  issues  emerged:  the  production  of  digital  copies  of  materials  held  in  the  libraries' 
collections for preservation purposes and the electronic dissemination of these copies to users.  

Under the current legal framework, libraries or archives do not enjoy a blanket exception to 
digitise their entire collections (mass-scale digitisation). The relevant exception is limited to 
specific  acts  of  reproduction  for  non-commercial  purposes5.  The  digitisation  of  library 
collections  therefore  requires  prior  authorisation  from  the  right  holders.  Libraries  argue  that 
this system of "prior authorisation" entails considerable transactional burdens (publishers do 
not  often  have  "digital"  rights  and  the  cost  of  individual  right  clearance  is  too  high). 
Additional  issues  arise  when  the  digitised  material  consists  of  unpublished  letters,  private 
diaries and business records. In this context, libraries and archives underline their unique role 

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Suggestions  for  possible  mandatory  exceptions  of  Directive  2001/29/EC  include  among  others:  (i) 
private copying (Article 5(2)(b); (ii) reproductions by libraries, archives and museums (Article 5(2)(c)); 
(iii) use for educational and scientific purposes (Article 5(3)(a)); (iv) use by disabled persons (Article 
5(3)(b)); (v) use for news reporting and press reviews (Article 5(3)(c)); and (vi) use for quotations for 
purposes such as criticism and review (Article 5(3)(d)).  
The "three-step test" is enshrined in Article 10 of the WIPO Copyright Treaty, Article 16 of the WIPO 
Performances and Phonograms Treaty and Article 5(5) of the Directive. 
Article 5 (2) (c) of the Directive. 

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for  the  long-term  preservation  and  management  of  the  cultural  heritage.  These  stakeholders 
stress that they go beyond what publishers do since their mission is to act in the public interest 
while  publishers  are  commercial  production  enterprises.  Public  interest  establishments  also 
want  to  make  their  collections  accessible  online,  particularly  works  that  commercially 
unavailable  and  argue  that  this  should  not  be  limited  solely  to  access  on  the  physical 
premises.6  The  issue  of  digitisation  was  extensively  discussed  and  some  first  consensus 
reached  in  the  High  Level  Expert  Group  on  Digital  Libraries.  A  memorandum  of 
understanding  on  due  diligent  search  was  signed  by  cultural  institutions  and  right  holders. 
However, no binding solutions to the issues mentioned above have yet been found. 

Publishers  and  collecting  societies  do  not  see  any  justification  to  broaden  the  current 
exceptions on preservation and making available for libraries and archives. They advocate the 
continuation  of  the  existing  system  of  licensing  schemes  and  contractual  agreements  to 
digitise and increase online access to works. They claim that easing the current exception to 
allow libraries, archives and teaching establishments to provide online services to users would 
undermine  the  position  of  right  holders,  create  unfair  competition  to  publishers  and 
discourage them from investing in new business models. Libraries should continue to provide 
essential services but the online provision of material should not equate with free access by 
users or the right to take and use protected works without payment. Guarding against "digital 
leakage"  is  imperative  in  the  context  of  ensuring  that  libraries  limit  exceptions  to  making 
works available online within their premises. 

Next steps 

The consultation has revealed that a sustainable system of prior authorisation for a 
variety  of  library  initiatives  requires  simple  and  cost  efficient  rights  clearance 
systems covering digitisation and online dissemination. In 2010 the Commission will 
further  pursue  the  work  at  EU  level  to  deal  with  the  copyright  aspects  of  these 
matters in the context of the new strategy on intellectual property rights . This work 
will  address,  inter  alia,  the  clarification  of  the  legal  implications  of  mass-scale 
digitisation  and  possible  solutions  for  the  issue  of  transaction  costs  for  right 
clearance.  It  should  examine  all  possible  options  including  collective  licensing, 
which could be supplemented by an extended collective licensing system, whereby a 
rights  manager  is  deemed  to  represent  "outsiders"  --  right-holders  not  formally 
members of the clearing system, and on the basis of a due diligent search.  

On  this  basis,  the  Commission  will  consider  whether  there  is  a  need  for  further 
initiatives as part of the new strategy including the possible creation of a statutory 
exception for such digitisation efforts.  

3.2. 

Orphan Works 

Orphan works are works that are in copyright but whose right holders cannot be identified or 
located.  Protected  works  can  become  orphaned  if  data  on  the  author  and/or  other  relevant 
right holders (such as publishers, photographers or film producers) is missing or outdated. 

A work can only be exploited only after obtaining prior permission from the right holders. In 
the case of orphan works, granting such authorisation is not possible. This leads to a situation 
where millions of works cannot be copied or otherwise used e.g. a photograph cannot be used 
to  illustrate  an  article  in  the  press,  a  book  cannot  be  digitised  or  a  film  restored  for  public 

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Under current copyright rules this is allowed only for research or private study on dedicated terminals 
located on libraries' premises (Article 5 (3) (n) of the Directive). 

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viewing.  There  is  also  a  risk  that  a  significant  proportion  of  orphan  works  cannot  be 
incorporated into mass-scale digitisation and heritage preservation efforts such as Europeana 
or similar projects. 

Libraries, universities, archives, some commercial users and several Member States claim that 
the problem of existing instruments, such as the Commission Recommendation 2006/585/EC7 
or the 2008 Memorandum of Understanding on Orphan Works and the related diligent search 
guidelines, is that these are not legally binding acts and that the issue of mass digitisation has 
not been addressed. Since non-legislative initiatives neither provide sufficient legal certainty 
nor solve the fact that using orphan works constitutes a copyright infringement, they advocate 
a legislative approach at the European level to allow different uses of orphan works. It is also 
stressed that obstacles to intra-Community trade in orphan works may emerge if each Member 
State were to adopt its own set of rules to deal with the problem. 

For  publishers,  collecting  societies  and  other  right  holders,  orphan  works  are  a  rights-
clearance issue. They are sceptical about introducing a blanket exception to use orphan works. 
For them, the crucial issue is to ensure that a good faith due diligence search to identify and 
locate the right holders is carried out, using existing databases8. 

Next steps 

The  overall  aim  of  tackling  orphan  works  -  their  digitisation,  preservation  and 
dissemination  -  is  to  establish  common  standards  on  the  level  of  due  diligence  in 
searching  for  the  owners  of  orphan  works  and  resolve  the  issue  of  potential 
copyright infringement when orphan works are used. As a key building block in the 
new comprehensive strategy on intellectual property rights, an initiative on orphan 
works should provide for an EU-wide solution to create legal certainty, facilitate the 
knowledge flow necessary for innovation, and prevent obstacles to intra-Community 
trade in orphan works.  

The  orphan  works  problem  will  be  examined  in  an  impact  assessment  which  will 
explore  a  variety  of  approaches  to  facilitate  the  digitisation  and  dissemination  of 
orphan works. Possible approaches include, inter alia, a legally binding stand-alone 
instrument on the clearance and mutual recognition of orphan works, an exception to 
the  2001  Directive,  or  guidance  on  cross-border  mutual  recognition  of  orphan 
works.  

The Commission will begin work on an impact assessment in 2009. 

3.3. 

Teaching and research  

Teaching,  learning  and  research  is  becoming  increasingly  international  and  cross-border, 
enabled  by  modern  information  and  communication  technologies.  Access  and  use  of 
information is no longer limited to physical space. Therefore limiting teaching and research to 
a specific location is considered to be contrary to the realities of modern life.  

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Commission  Recommendation  2006/585/EC  on  the  digitisation  and  online  accessibility  of  cultural 
material and digital preservation 
Several publishers, reproduction rights organisations and libraries have started to work together within 
the  EU-funded  ARROW  (Accessible  Registries  of  Rights  Information  and  Orphan  Works)  project  to 
provide users who want to digitise their collections with information on the status of protected works. 
The ARROW project can be considered as an important first step; however, as yet, it does not cover all 
EU  Member  States.  ARROW  is  also  not  entitled  to  grant  licenses  for  scanning  and  dissemination  of 
protected works. 

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An issue that has come to the fore is a possible difference between scientific publishing and 
publishing  for  literary  and  artistic  aims.  While  scientific  and  scholarly  authors  have  other 
sources  of  income  and  publish  to  further  the  cause  of  research  and  scholarship,  literary 
authors (such as novelists) need to earn a living from the publication of their works. In order 
to avoid needless duplication of research, published results of publicly-funded research should 
be  available  to  the  entire  scientific  community  and  even  to  the  public.  This  is  because  all 
research builds on previous research. In these circumstances, open-access publishing and open 
repositories for published articles offer solutions. 

Libraries and universities underline the complexity and fragmentation of the current system of 
licensing  agreements  with  publishers.  A  typical  European  university  is  required  to  sign  a 
hundred or more licenses governing the use of digital research material supplied by various 
publishers9.  Examining  what  each  of  these  individual  licenses  permit  with  respect  to  e.g. 
access, printing, storage and copying is a cumbersome process. They also contend that trans-
national  licensing  within  the  EU  is  difficult  or  impossible.  Libraries  and  universities  assert 
that it would be more practical and efficient to have one central organisation to grant a wide 
range of online rights with respect to digital material. They call for mandatory teaching and 
research  exceptions  which  should  also  expressly  include  a  reference  to  distance  learning. 
Libraries and universities also voice concerns that subscription fees for journals are draining 
resources which they would otherwise spend on research or teaching.10 

Publishers  argue  that  licensing  solutions,  rather  than  prescriptive  legal  norms,  provide  the 
required  flexibility  to  cater  to  the  requirements of  teaching  and  research,  including  distance 
learning.  They  stress  that  they  provide  a  great  deal  of  electronic  access  to  their  databases, 
journals  and  books  to  libraries  and  educational  and  research  institutions  through  various 
licensing  agreements.  In  making  works  available  for  distance  learning  or  home-use, 
publishers  and  licensing  agencies  stress  the  importance  of  ensuring  that  access  is  limited  to 
the purposes for which the material is intended (non-commercial and educational purposes).  

Next steps  

The  advent  of  the  Internet  and  its  possibilities  for  borderless  dissemination  of 
knowledge  and  science  has  led  the  Commission,  in  close  consultation  with 
stakeholders, to already take concrete action in relation to open access to publicly-
funded  research  results.  Such  action  will  continue  in  the  coming  years,  as 
appropriate.  

The  licensing  burden  encountered  by  a  typical  European  university  should  be 
reduced.  The  Commission  will  consult  relevant  stakeholders  on  best  practices 
available to overcome the fragmented way by which universities acquire usage rights 
to scientific journals.  

With  respect  to  distance  learning,  the  Commission  will  continue  to  monitor  the 
evolution  of  an  integrated  European  space  for  cross-border  distance  learning.  If 
need be, further measures to accompany such a European space will be considered.  

3.4. 

Persons with disabilities  

The debate concerning copyright exceptions for the benefit of persons with disabilities centres 
on  their  basic  right,  enshrined  in  the  UN  Convention  on  the  Rights  of  Persons  with 

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See the submission of the International Federation of Library Associations. 
E.g., subscriptions for the Brain Research Journal published by Reed Elsevier, costs €20,835 per year 
(2008 prices) – ULB submission pg. 3, footnote 6. 

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Disabilities11, to enjoy equal access to information products, publications and cultural material 
in accessible formats. Equal treatment of persons with disabilities for access to and supply of 
goods  and  services  has  also  been  included  in  the  Commission's  proposal  for  a  Council 
Directive  on  implementing  the  principle  of  equal  treatment  between  persons  irrespective  of 
religion, belief, disability, age or sexual orientation.12  

Organisations representing the persons with disabilities highlight the so-called "book famine" 
- only 5% of books published in Europe are converted each year into accessible formats such 
as audio, Braille or large print. Moreover, they claim that around 95% of available material is 
provided by specialist agencies, funded through charities or public subsidies, working under 
copyright  exceptions.  Visually  impaired  persons  and  other  print-disabled  people  argue  that 
they should have access to books and other protected materials on the same conditions and at 
comparable prices to everybody else. Their preferred solution is for publishers, at the outset, 
to  provide  works  in  accessible  formats  that  can  easily  be  converted  into  audio,  Braille,  or 
large print.  

Although  all  Member  States  have  implemented  copyright  exceptions  into  their  national 
legislation,  the  approach  is  not  harmonised  so  a  degree  of  legal  uncertainty  ensues.  More 
crucially, the cross-border transfer  of the  already limited supply  of  material  is  hampered  by 
the territorial limitation of exceptions under national legislation. To export a converted work 
to  another  Member  State,  an  organisation  would  have  to  buy  the  rights  in  the  destination 
country which is a very costly process. TPM have been cited as an additional impediment as 
they prevent the conversion into accessible formats of legally acquired works by organisations 
or  individuals.  For  all  these  reasons,  persons  with  disabilities  advocate  an  EU-wide 
standardised and comprehensive mandatory copyright exception.  

Publishers agree that the primary goal is for a majority of published books to be available in 
an  accessible  format.  Their  view  is  that  this  is  best  achieved  by  building  on  the  already 
existing  voluntary  licensing  schemes  rather  than  through  mandatory  exceptions.  Publishers 
and  other  right  holders  highlight  a  range  of  voluntary  licensing  schemes  for  persons  with 
visual or print disabilities that are common in the EU.13 They point out that the social costs of 
providing  access  to  works  should  not  be  borne  solely  by  the  publishers  themselves.  At  the 
same  time,  they  have  expressed  a  willingness  to  resolve  access  issues  for  disabled  persons 
through  a  platform  of  interested  parties  with  the  aim  to  make  works  adaptable  for  visually 
impaired persons.  

Next steps 

The  immediate  goal  is  to  encourage  publishers  to  make  more  works  in  accessible 
formats  available  to  disabled  persons.  TPM  should  not  prevent  the  conversion  of 
legally acquired works into accessible formats. Contractual licensing should respect 
statutory  exceptions  for  persons  with  disabilities  including  visually  impaired 
persons.14 The consultation has revealed a range of existing collaborative efforts for 
visually impaired persons or persons with visual or print disabilities across the EU. 
Such efforts should be accelerated and applied across the EU.  

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The  UN  Convention  has  been  signed  by  all  EU  Member  States  and  the  European  Community.  Of 
particular relevance are Articles 4, 9, 21 and 30.  
(COM (2008) 426 final) 
Examples  of  national  licensing  schemes,  voluntary  arrangements  or  guidelines  are  provided  by  the 
Federation of European Publishers (p. 11-13), the UK Publishers Association (p. 5, 13 and Appendices) 
and the Copyright Licensing Agency (p. 3 and 8). 
The British Library found that out of a sample of 100 licences it entered into with electronic publishers 
only two acknowledged the exceptions for visually impaired people.  

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As  a  first  step  the  Commission  will  organise  a  stakeholder  forum  concerning  the 
needs  of  disabled  persons,  in  particular  visually  impaired  persons  by  the  end  of 
2009. The forum would consider the range of issues facing persons with disabilities 
and  possible  policy  responses.  The  UN  Convention  on  the  Rights  of  Persons  with 
Disabilities should serve as a benchmark against which to measure progress in this 
area.  

The forum should also look at possible ways to encourage the unencumbered export 
of a converted work to another Member State while ensuring that right-holders are 
adequately remunerated for the use of their work. It should look closely at the mutual 
recognition  and  free  movement  of  information,  publications,  and  educational  and 
cultural  material  that  is  accessible  for  persons  with  disabilities  and  reflect  upon 
online content accessibility issues. 

On  the  basis  of  the  results  of  the  forum  the  Commission  will  assess  whether  any 
further initiatives are justified.  

3.5. 

User-created content (UCC) 

Web  2.0  applications,  such  as  blogs,  podcasts,  wiki,  file  or  video  sharing  enable  users  to 
easily  produce  and  share  text,  video  and  pictures.  This  has  fuelled  the  development  of  new 
applications on the Internet and highlighted the issue of user-created (amateur) content, where 
consumers  are  increasingly  becoming  creators  of  content,  sometimes  using  copyright-
protected material as a basis for their creation. 

The  Green  Paper  looked  into  existing  exceptions  which  might  be  relevant  for  UCC 
(quotations for criticism or review, incidental use and caricature, parody or pastiche)15 and the 
possible  introduction  of  a  new  exception  to  cater  for  'creative,  transformative  or  derivative 
works'. 

The  outcome  of  the  consultation  shows  that  most  of  the  stakeholders  consider  that  it  is  too 
early to regulate UCC. There is ambiguity as to the scope of UCC. It is also unclear whether 
both  amateurs  and  professionals  should  benefit  from  special  rules  on  UCC  and  how  a 
distinction between those groups can be drawn or how rules on UCC would relate to existing 
limitations, such as quotations, incidental use, and caricature, parody or pastiche.  

Next steps 

As the issue of UCC is still a nascent phenomenon, the Commission intends to further 
investigate  the  specific  needs  of  non-professionals  that  rely  on  protected  works  to 
create their own works. The Commission will further consult on solutions for easier, 
more affordable and user-friendly rights clearance for amateur users.  

15 

Article 5 (3) (d), (i) and (k) of the Directive. 

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4. 

CONCLUSIONS 

The  main  conclusion  from  the  above  debate  is  that copyright policy must be geared toward 
meeting the challenges of the internet-based knowledge economy.16 At the same time a proper 
protection  of  Intellectual  Property  Rights  is  decisive  to  stimulate  innovation  in  the 
knowledge-based economy. Different interests have to be carefully balanced. The preparatory 
work  announced  in  this  Communication  will  ensure  that  the  ground  is  properly  laid  for 
appropriate  follow-up  actions  as  a  core  element  of  the  future  comprehensive  strategy  for 
intellectual property rights. To this end, the Commission will continue to be actively engaged 
with  all  stakeholders,  including  the  science  community,  libraries  and  the  internet-literate 
public at large.  

The  Commission  is  committed  to  taking  appropriate  follow-up  actions  in  the  context  of  its 
future strategy on intellectual property. In the immediate future, the preferred tool for many of 
the  issues  raised  in  the  Green  Paper  is  a  structured  dialogue  between  relevant  stakeholders, 
facilitated  by  services  of  the  European  Commission.  In  particular,  the  dialogue  on  creating 
information products, publications and cultural material in formats accessible for persons with 
disabilities  should  be  taken  forward  as  a  priority.  Another  priority  should  be  finding 
appropriate  licensing  solutions  for  mass-scale  digitisation  in  a  European  context.  The 
Commission will also conduct an impact assessment on how to foster the clearance issues that 
arise with "orphan" works. The impact assessment will analyse the necessary level of diligent 
search required prior to the use of orphan works as well as the mutual recognition of orphan 
work status across Europe.  

16 

The Commission will address some of the wider aspects of this issue in its forthcoming Communication 
on Creative Content in the Information Society.  

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