[Advocacy Advisors] EU Monitoring Report - February

Tue Mar 4 08:43:33 UTC 2014

Wikimedia and the EU

February Report

We've had some crazy weeks over here with things happening on the
political, policy and legal fronts and across Brussels, Luxembourg and
Strasbourg.

Dimi

tl;dr

A White Paper on copyright can be expected before the summer break,
according to Commissioner Barnier. He also wants to revive the attempts for
"notice and action" legislation, although even his staff in Brussels was
unaware of that. In Luxembourg, the Court of Justice of the EU ruled that
no extra permission is needed to link to content available online. Finally,
in Strasbourg, the Parliament passed the Collective Rights Management
Directive explicitly allowing "non-commercial" licensing.

This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor/MR

ToC

1. Beyond the Copyright Consultation

2. CJEU: Linking to Copyrighted Content Without Permission Legal

3. Restarting the Notice and Take Down Directive

4. Collective Rights Management Directive Adopted

5. Short Stories: Internet Governance, Food Porn and a Study on InfoSoc

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#copyright

1. Beyond the Copyright Consultation

Why is this relevant?

The Consultation on Copyright by the European Commission [1] targets almost
all our IP issues areas and is likely to play a significant role in a
possible future copyright reform.

What happened?

The consultation was extended by one month until the 5th of March just a
few days before the initial deadline. According to the Commission, this
happened because of a massive amount of requests from all sectors. Rumours
started that an internal struggle between office and cabinet was the reason
for this last-minute decision, [2] which could mean that the services
(bureaucrats) want to push the dossier ahead, while the cabinet (political
staff, to be exchanged this year) is hesitant. The problem here is that we
can't know whether the next cabinet will be at all keen on reforming
copyright.

What comes next?

Commissioner Barnier announced during his speech at plenary session of the
European Parliament in Strasbourg that a White Paper on copyright is to be
finalised before summer. [3] According to other sources from DG MARKT the
current consultation and a number of recently released [4] and to-be
released studies will be the basis for this document.  White Papers in the
EU propose actions in specific policy areas.

On a side note, we have also asked DG MARKT to release the data sets of the
consultation responses, which they've said they will try to do. [4a]

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#svensson

2. CJEU Rules Linking to Copyrighted Content Without Permission to be Legal

Why is this relevant?

It partly defines the legality of linked or even embedded content. The
question posed to the court was whether or not one has to clear permission
with the copyright holder before linking to their content online.

What happened?

The court's ruling [5] was that linking to publicly accessible content does
not constitute a new case of "communication to the public", i.e. giving
access. This means that no new permissions need to be granted for linking
to materials online. The judgement does not regard the cases of linking to
illegal content. It makes, however, no difference if the user is given the
impression that the work is on the initial website (e.g. framing,
embedding). Further reading: [6][7]

What comes next?

The decision could also have implication on Germany's "ancillary copyright
for press publishers" [8] with similar legal proposals currently under
discussion in other EU countries. [9] as the court ruled in its fourth
answer that Member States are not allowed to redefine the concept of
"communication to the public" and hence give copyright holders wider
protection than is defined in the InfoSoc Directive (2009/29/EC). [10]

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#NTD

3. Notice and Take Down Directive Seemingly Revived by Barnier

Why is this relevant?

Such a Directive would regulate how (allegedly) illegal content can be
taken off the internet by request of (self-proclaimed) copyright holders.

What happened?

After a public consultation was held in 2012 [11] and in 2013 the whole
project was given up by DG Internal Market after it seemed impossible to
reconcile all the stakeholders in an acceptable way. [12] Back then nobody
was able to find a compromise on the strong demand by civil society
organisations to introduce a "counter notice", giving content providers a
chance to appeal the take down procedure. Beginning of February 2014, at
the Strasbourg session of Parliament, Commissioner Barnier announced its
revival. [13]

It is however unclear how this issue will be resolved, since the only
relevant things the Commissioner said were that it will not be "strictly
linked to copyright" and that it will be done with "full respect for
fundamental rights"

What comes next?

We don't yet know how to interpret Barnier's statements and if we should
interpret them widely or narrowly. It is also unclear if this is a
seriously ment legislative attempt or just a political manoeuvre. Either
way, Notice and Take Down is back on the table for now.

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#CRM

4. Collective Rights Management Directive Adopted

Why is this relevant?

Collective rights management societies are in many EU countries state
condoned monopolies. Due to their exclusive and restrictive contracts with
authors, it was impossible for musicians to release their works under
permissive licenses.

What happened?

The European Parliament adopted during its plenary session beginning of
February the Collective Rights Management Directive. [14] Luckily, the
Directive forces collecting societies to allow their clients a more liberal
licensing. Unluckily, this is only the case for non-commercial licenses. A
coalition of civil society groups, including Creative Commons and Communia
[15][16] had lobbied for free licenses, but had to compromise on the
non-commercial component.

What comes next?

We (Wikimedia/Free Knowledge Advocacy Group) tried to point out the
importance of truly free licenses, but started our efforts way too late and
after the main compromises were struck. There are two teachings to take
from this. Firstly, it is crucial to follow up legislative procedures as
early as possible. Secondly, even the most like-minded partners don't
always have the same priorities.

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#IG #InfoSoc #foodporn

5. Shorts

Internet Governance

The European Commission released a statement calling for a move towards the
internationalisation of the governance of the internet away from
California-based ICANN. [17]

---

Information Society Directive

A new (600 page) study on the InfoSoc Directive, commissioned by the
Internal Market and Services Directorate General (DG MARKT), has been
released. [18] According to a DG MARKT representative it will, along with
other studies and the current copyright consultation, play a pivotal role
in the coming White Paper on copyright. There is a Wikimedia initiative to
collaboratively work through the paper. [19]

---

Food Porn

French chefs have been active in the media recently complaining about "food
porn", i.e. taking pictures of food and posting them on social networks.
One of the claims is that this constitutes an infringement of intellectual
property rights. [20]

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[1]
http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/consultation-document_en.pdf

[2]https://twitter.com/teirdes/status/429260615597576193

[3]https://twitter.com/MBarnierEU/status/430618637121359872

[4]
http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf

[4a]https://twitter.com/EU_Markt/status/438329907836620800

[5]
http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=60713

[6]http://ipkitten.blogspot.co.uk/2014/02/early-thoughts-on-svensson.html

[7]
http://kluwercopyrightblog.com/2014/02/21/the-svensson-case-and-the-act-of-communication-to-a-new-public/

[8]https://en.wikipedia.org/wiki/Ancillary_copyright

[9]
http://ipkitten.blogspot.co.uk/2014/02/an-ancillary-right-over-news-to-be-soon.html

[10]https://en.wikipedia.org/wiki/InfoSoc_Directive

[11]
http://ec.europa.eu/internal_market/e-commerce/notice-and-action/index_en.htm

[12]http://www.iptegrity.com/index.php/ipred/893

[13]
http://www.europarl.europa.eu/ep-live/en/plenary/video?debate=1391500981594

[14]
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2013-0281&language=EN&mode=XML#title1

[15]http://creativecommons.org/weblog/entry/40959

[16]
http://www.communia-association.org/2013/01/07/communia-policy-paper-on-proposed-directive-on-collective-management-of-copyright/

[17]http://europa.eu/rapid/press-release_IP-14-142_en.htm

[18]
http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf

[19]https://meta.wikimedia.org/wiki/EU_policy/Research/Study_on_InfoSoc

[20]
http://ipkitten.blogspot.co.uk/2014/02/chefs-take-issue-with-food-porn-but.html
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