Selected Intellectual Property Issues. First Considerations on the Interfaces Between Intellectual Property Rights and PSI Re-Use. Cristiana Sappa Project Manager, LAPSI Nexa Research Center for Internet and Society 2nd LAPSI Public Conference - Brussels,

Introductory Remarks Starting Point and Overall Objectives Enhance Re-Use of PSI For fostering the internal market, the economic growth, the social development … 2nd LAPSI Public Conference - Brussels,

Introductory Remarks Subject Matter The LAPSI Thematic Network refers to PSI as: -the wide range of information that public sector bodies (PSBs) collect, produce, reproduce and disseminate in many areas of activity while accomplishing their institutional tasks. -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)

Introductory Remarks Subject Matter: the PSI Goldmine WORKS OF PSBs EMPLOYEES AND WORKS 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?

Introductory Remarks Starting Point and Overall Objectives Enhance Re-Use of PSI for fostering the internal market, the economic growth, the social development … and respect the existing protected interests, such as those protected by Intellectual Property Rights - IPRs - (see recitals 24,22 and art. 1.5 D. 2003/98/EC) 2nd LAPSI Public Conference - Brussels,

Introductory Remarks Some First Hints on the 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, …. 2nd LAPSI Public Conference - Brussels,

Introductory Remarks Some First Hints on 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. 2nd LAPSI Public Conference - Brussels,

Introductory Remarks Preliminary Notes to Delimit the Scope of the Analysis – Recommendation IPRs: not only Copyright, but here copyright + related rights, including sui generis protections (see recital 24 D. 2003/98/EC) see LAPSI Policy Recommendation on Commercial Secrecy, but also EVPSI research on PSI and Distinctive Signs. Economic and Moral Rights: the latter always belong to third parties. 2nd LAPSI Public Conference - Brussels,

Identified Hypothesis of IPRs-PSI Interfaces 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 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 + II. 2nd LAPSI Public Conference - Brussels,

A PSI Minefield? Works collected in libraries maps WORKS OF PSBs EMPLOYEES AND WORKS COMMISSIONED BY PSBs Such as: Reports, green papers, surveys, databases Works collected in museums datasets PD data Mere information OFFICIAL ACTS OFFICIAL ACTS : Laws, Regulations, Cases Decrees, Some Databases? PD data Mere information Databases data

I. No IPRs on Official Acts? Definition and Legal Framework What is an Official Act? How broad is this definition? International Norms: Art. 2.4 CUB (and Art. 2bis CUB) EU Norms: Art. 5.3 letts. c), e), f) and g) seem related to art. 2bis CUB But art. 5 - Directive 2001/29/EC: no explicit reference to official acts ex art. 2.4 CUB. In particular art. 5.3 lett o): is it still enough? National Norms: 2nd LAPSI Public Conference - Brussels,

I. No IPRs on Official Acts? International Legal Framework (CUB) Art. 2 (1)The expression literary and artistic works shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as …. … (4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts. … (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. Art. 2bis (1) It shall be a matter for legislation in the countries of the Union to exclude, wholly or in part, from the protection provided by the preceding Article political speeches and speeches delivered in the course of legal proceedings. 2nd LAPSI Public Conference - Brussels,

I. No IPRs on Official Acts? EU Legal Framework (Art. 5.3 D. 2001/29/EC) c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible; (e) use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings; (f) use of political speeches as well as extracts of public lectures or similar works or subject- matter to the extent justified by the informatory purpose and provided that the source, including the author's name, is indicated, except where this turns out to be impossible; (g) use during religious celebrations or official celebrations organised by a public authority; (o) use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article. 2nd LAPSI Public Conference - Brussels,

I. No IPRs on Official Acts The Implications 1. Fast circulation of information prevails on privatization of benefits related to the exploitation of works. 2. Compliance with EU norms 3. Scope of the notion of official act: the broader the better. But we need to refer to current national norms and cases no fully achieved harmonization WHAT TO DO? - Adopt a broad definition -It may be suitable to: 1. identify an appropriate EU forum/legal tool where providing with a a minima standard definition of Official Act and 2. adopt a EU exception for official acts. (But why so far this has not been done?) 4. What is an official act? Just part of PSI. 2nd LAPSI Public Conference - Brussels,

II. Do PSBs Always Hold IPRs on the Works of Their Employees and on the Works They Commission? Framework: National rules only: often IPRs (which ones?) are held (for how long?) by the PSBs, but not necessarily. Implications: No legal certainty, No harmonization Art. 1.5 adde in fine of the proposal 12.XII nd LAPSI Public Conference - Brussels,

II. PSBs 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. 2nd LAPSI Public Conference - Brussels,

III. How to Enable Re-Use of PSI Covered by Third Parties IPRs? -Note on APPSI, Ordnance Survey decision. 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 references to the interests of employees in the Proposal) Note on Cultural Institutions (see R.7 of the Proposal) 2nd LAPSI Public Conference - Brussels,

Remarks and Questions? It will be possible to have a look at the follow up of these first considerations: 1. On 2. During the LAPSI Internal Conference, March 23rd morning (Budapest) 3. The final version will be available on 2nd LAPSI Public Conference - Brussels,

Thank you! 2nd LAPSI Public Conference - Brussels,