Hi policy folks,
-----
tl;dr: Please check out and participate in the new copyright strategy on
Meta <https://meta.wikimedia.org/wiki/Copyright_strategy>, and attend the
accompanying IRC office hour
<https://meta.wikimedia.org/wiki/IRC_office_hours#Upcoming_office_hours> on
September 15.
-----
As you may have already seen on other mailing lists or through messages
on-wiki, we on the WMF legal team have been putting together a new strategy
for identifying, prioritizing, and addressing copyright issues that affect
Wikimedia <https://meta.wikimedia.org/wiki/Copyright_strategy>. The goal of
the strategy is to improve how Wikimedia does its copyright-related work by
providing a centralized place for everyone—staff and non-staff alike—to
organize and collaborate on that work. There’s more information on Meta:
https://meta.wikimedia.org/wiki/Copyright_strategy
The strategy is designed to work with all sorts of issues, including things
like MediaWiki feature design, Creative Commons license compliance and
project copyright policies. I’m hoping the copyright strategy pages will
also become a place to track and discuss copyright-related public policy
opportunities and developments. If a copyright lawsuit is filed, copyright
legislation is proposed, or an opportunity arises to share Wikimedia’s
perspective on copyright with policymakers, it can be added to the
strategy’s list of issues
<https://meta.wikimedia.org/wiki/Copyright_strategy/Issues>. We can then
all talk about it and propose responses or activism.
The goal of the strategy is not to replace this mailing list, the public
policy portal <http://policy.wikimedia.org>, or anywhere else where policy
discussions are already thriving, but to supplement existing forums. By
documenting discussions and keeping them active on-wiki, we can help make
sure we don’t lose track of anything.
If you have questions about all of this, I encourage you to leave a comment
on the copyright strategy talk page
<https://meta.wikimedia.org/wiki/Talk:Copyright_strategy>. The legal team
will also be holding an office hour on IRC
<https://meta.wikimedia.org/wiki/IRC_office_hours#Upcoming_office_hours>to
discuss the strategy on September 15 at 14:00 UTC.
I hope you’ll participate!
Best,
Charles M. Roslof
Legal Counsel
Wikimedia Foundation
croslof(a)wikimedia.org
(415) 839-6885
NOTICE: This message might have confidential or legally privileged
information in it. If you have received this message by accident, please
delete it and let us know about the mistake. As an attorney for the
Wikimedia Foundation, for legal/ethical reasons I cannot give legal advice
to, or serve as a lawyer for, community members, volunteers, or staff
members in their personal capacity. For more on what this means, please see
our legal disclaimer
<https://meta.wikimedia.org/wiki/Wikimedia_Legal_Disclaimer>.
tl;dr
Now that the fog surrounding the European Commission’s copyright proposal
has lifted, we are beginning to build up steady pressure for significant
improvements (FoP, safeguarding the PD, TDM, databases). Currently we’re
focusing on consulting national governments and talking to key MEPs.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
======
======
Copyright Reform - What we want to include
Limiting the negative effects on free knowledge projects is essential. But
we also want to be more ambitious and try to establish better conditions
for the sharing of information. Below is a number of fixes will work to
include in the reform. The dossier is currently in the European Parliament
[2] and will stay there in the following months.
======
Freedom of Panorama: The European Commission ran a consultation on this
question. The results wre apparently favourable towards including it. [2]
The Commission's very own communication states that it “confirms the
relevance of this exception” and “strongly recommends that all Member
States implement this exception”. [3] At the press conference announcing
the reform, Vice-President Ansip confirmed that a vast majority (26 out of
28 Member States) would accept such an exception. [4] Despite these
unprecedented favourable conditions for a mandatory exception, the
Commission decided not to include it in the text. [5] We now must seize the
opportunity to fix this in the European Parliament.
======
Safeguarding the Public Domain: One of the few things that were not
questioned in the Information Society Directive Evaluation Report is the
principle that there should be no new copyright or related rights on
digitisations. [6] With issues we’re experiencing around the
Reiss-Engelhorn case [7] and copyright claims on public domain works [8],
this is something we would greatly benefit from. Our goal will be to
include such a public domain safeguard in Article 5 “Preservation of
cultural heritage”, as we do believe it hinders exactly this.
======
Full TDM: Text and data mining is one of the exceptions included in the
current version of the text. However, the European Commission decided it
should apply only to “research organisations”. As our projects do not fall
under this category, this would not cover our use of automated data
processing technologies, even when accessing databases of national
statistics institutes or medical databases for example. A full exception,
along the principle of “right to read is right to mine”, that applies to
everyone, would provide a lot more legal clarity. For us, for data
journalists and for start-ups.
======
Database Rights Regime Change: The reform proposal officially amends not
only the Copyright Directive, but also the Database Directive. [9] The
latter has been a nuisance to us, as it creates an additional sui generis
right on databases in Europe. A right that potentially lasts forever. This
is one of the reasons why Wikidata accepts only CC0 licenses. [10] The
European Commission hasn’t found proof that this extra protection has led
to any additional investment in databases in Europe. [11] The European
Parliament called for the abolishing of the entire Directive. [12] However,
if we completely discard the Database Directive, we might revert back to
pre-existing national legislations, which in some cases were even more
restrictive. The main problem with this extra protection is that most
organisations don’t know about it or even want it. This is why we believe
that including a “protection upon registration” principle should be taken
into consideration as a quick & dirty fix here.
======
======
Copyright Reform - What we regard as a risk
======
Upload Filtering & Intermediary Liability: Article 13 asks that
“Information society service providers that store and provide to the public
access to large amounts of works or other subject-matter uploaded by their
users” to conclude agreements with rightsholders. It also proposes the
implementation of “effective content recognition technologies”. On top of
that, Recital 38 re-interprets the intermediary liability protection regime
in the E-Commerce Directive, which effectively protects Wikipedia from
damage claims. This protection currently states that we’re not liable for
illegal content on our sites as long as we didn’t know about it and act
upon after being informed. The two paragraphs mentioned here could calncel
this protection and force us to monitor all content added to our projects
before it goes live. Something that puts free knowledge projects at risk.
Our goal would be to ensure that the protection we currently enjoy under
the E-Commerce Directive remains untouched and no upload filtering systems
are required.
======
Ancillary Copyright: The proposal aims to create a EU-wide ancillary
copyright regime. In contrast to the very unsuccessful national experiments
with such systems (Germany and Spain), this version goes much further. It
would include all press publications, last for 20 years and doesn't provide
for any exceptions whatsoever. Not even the use of text or image snippets
to preview an article. The issue for us here is that whenever we provide a
text excerpt along with the hyperlink, this would require an additional
license clearing (unless the use falls under the citation exception).
Theoretically, even the link itself could be covered under this new right,
if it includes the name of the the article for instance. We will
participate in the discussions on this part of the proposal and raise our
concerns demanding a fact-based approach to legislation.
======
======
Copyright Reform - What we are working on right now
======
National Consultations: Many European national governments have started
their own consultations on this reform or have, upon request, indicated
ways to make our position known. This is important, as every government
gets a vote on the reform and can propose changes. We are currently working
with most EU chapters and user-groups on making ourselves heard nationally
raising all or some of the issues listed above. WMFI, WMUK, WMSE, WMAT,
WMCZ, WMBGUG, WMEE, WMDE and WMPL have already submitted their positions.
[13] We are currently working with WMES, WMDK, WMIEUG, WMNL, WMFR and
potentially WMPT and WMGRUG to do the same. Unfortunately we missed the
deadlines in Hungary and Romania.
======
What we are working on right now - Visiting WEASELS: There are few things
as effective than having a volunteer from a MEPs own country asking him or
her for help in their own language.In October, Fernando from WMES came to
Brussels and met with 4 Spanish MEPs. In November, Heikki from WMFI will do
the same and in January Dimitris form Greece will follow suit. All these
WEASELS receive know-how and practical training and continue working on
public policy back home. If you are interested in such a Visiting WEASEL
scholarship for your user-group or chapter, please let me know!
======
======
Copyright Reform - What others are working on: Some of the priorities of
like-minded organisations that Wikimedians might be interested in include a
“right to re-use”/UCG exception initiative led by Mozilla [14] and an
attempt to fix the education exception by Communia. [15] If you are
interested in helping them, let me know and I will put you in touch!
======
In other news
Almost hard to believe, but non-copyright things are also happening.
======
======
AVMSD: Hidden behind this acronym is the Audiovisual Media Services
Directive, which defines how much advertisement is acceptable during one
hour of television, how much European content cinemas and broadcasters have
to provide and other such rules. As these apply only to traditional media,
the organisations thereof have been complaining that online services
directly competing with them have less rules to follow. As a response, the
European Commission has proposed a reform of the Directive to include
online channels. [16] While the Commission claims that they are targeting
only services such a YouTube, iTunes, Netflix etc., it’s definition of the
scope includes “video-sharing platform services which do not have editorial
responsibility for the content that they store but which organise that
content, through various means.” As Commons might very well fall into this
definition we are analysing and monitoring this dossier.
======
E-Privacy Reform: An E-Privacy Directive [17] revision is planned. This
will cover everything along the lines of cookies, user data, spam and
traffic data. We know that there will be a communication on this by the end
of the year. Possibly, this will come with a reform proposal. One question
that is being openly discussed is whether so-called over-the-top
communication services (e.g. WhatsApp, Facebook Messenger, Google Hangouts)
should be submitted to the same type of privacy or data retention rules as
standard telecoms services. As this touches upon the privacy of each and
everyone online, we are following this file and will be ready to react if
necessary.
======
======
[1]
http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2016/…
[2]
http://ec.europa.eu/information_society/newsroom/image/document/2016-37/syn…
[3]http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=17218
[4]http://ec.europa.eu/avservices/video/player.cfm?sitelang=en&ref=I125901
[5]
http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_e…
[6]https://juliareda.eu/copyright-evaluation-report-explained/#publicdomain
[7]
https://blog.wikimedia.de/2016/06/21/erklaerung-zum-fall-reiss-engelhorn-mu…
[8]https://commons.wikimedia.org/wiki/Commons:Reuse_of_PD-Art_photographs
[9]
http://eur-lex.europa.eu/lexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:H…
[10]
https://www.wikidata.org/wiki/Wikidata:Data_donation#Wikidata_and_copyright
[11]
http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_rep…
[12]
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A8-2015…
[13]https://commons.wikimedia.org/wiki/Category:Public_Policy_Consultations
[14]https://www.changecopyright.org/
[15]
http://www.communia-association.org/2016/09/14/europeans-deserve-better-cop…
[16]
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1464618463840&uri=COM:20…
[17]
https://en.wikipedia.org/wiki/Directive_on_Privacy_and_Electronic_Communica…
Hi all
Some of you may have already learned about this:
Tomorrow evening we're hosting Mike Masnick from Techdirt
<https://www.techdirt.com/> at our office for a talk. Mike will speak about
the many ways that copyright has gone wrong and the need for reform. He has
written about technology and the law on his blog for almost 20 years and is
a great advocate for free knowledge and open culture!
This is the first event of a loose series of talks we have tentatively
named:
FREE OPEN SHARED <https://meta.wikimedia.org/wiki/Free_Open_Shared_events>
Conversations about policy,
collaboration, and knowledge at the Wikimedia Foundation.
Doors open at 6pm and the talk itself will start shortly after 6.15pm PDT.
It will be live-streamed (and recorded) here:
https://www.youtube.com/watch?v=QsHp8hckkVc
In case you're in SF, please join us! The event will be open to the public.
Find more info and RSVP at Eventbrite
<https://www.eventbrite.com/e/free-open-shared-a-conversation-about-copyrigh…>
.
Best,
Jan
P.S. If you're on Twitter, please help spread the word by giving us a
retweet <https://twitter.com/wikimediapolicy/status/790692596624437249>.
Hi all,
Several EU Member States' governments are running a national consultations
on the EU copyright reform proposal
<http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=17200>. We will try
to participate in as many of these as possible. This is important, because
the Council (where the Member States governments sit) will vote on this
reform together with the European Parliament.
For now, we are aware of the national consultations in Germany, Poland,
Austria and Sweden. It would be very helpful if you could check for such a
process in your country and ping it back to me.
In parallel, we are working on a document that can easily be translated
into everyone's language and then submitted. The three key demands will be
Freedom of Panorama, safeguarding the public domain and guaranteeing
intermediary liability protection.
Thank you!
Dimi
Apparently our Ministry of Culture - that is the subject in charge of copyright related issues here - is not doing anything. They do publish irreguralrly some press releases about the ongoing process in the EU instituions, and that's all.
Jan
______________________________________________________________
> Od: Dimitar Parvanov Dimitrov <dimitar.parvanov.dimitrov(a)gmail.com>
> Komu: Advocacy Advisory Group for WMF LCA <Advocacy_Advisors(a)lists.wikimedia.org>
> Datum: 10.10.2016 16:56
> Předmět: [Publicpolicy] National Consultations on EU Copyright Reform
>
Hi all,
Several EU Member States' governments are running a national consultations on the EU copyright reform proposal <http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=17200>. We will try to participate in as many of these as possible. This is important, because the Council (where the Member States governments sit) will vote on this reform together with the European Parliament.For now, we are aware of the national consultations in Germany, Poland, Austria and Sweden. It would be very helpful if you could check for such a process in your country and ping it back to me.
In parallel, we are working on a document that can easily be translated into everyone's language and then submitted. The three key demands will be Freedom of Panorama, safeguarding the public domain and guaranteeing intermediary liability protection.
Thank you!
Dimi
----------
_______________________________________________
Publicpolicy mailing list
Publicpolicy(a)lists.wikimedia.org
https://lists.wikimedia.org/mailman/listinfo/publicpolicy <https://lists.wikimedia.org/mailman/listinfo/publicpolicy>
tl;dr
A copyright reform package is finally proposed. It offers just a few and
very limited new exceptions. But it would establish a new, EU-wide, 20-year
long right for press publishers on snippets. The proposal would also shift
the intermediary liability as enshrined in the E-Commerce Directive.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
======
======
Copyright Reform!? So, it’s finally kick-off time for the reform of the
European copyright framework. [1] Or is it? The first remarkable thing
about the proposed package is that it came a week early, because President
of the European Commission Jean-Claude Juncker decided to include it in his
State of the Union Speech [2]. The second remarkable thing is that it is
not so much a reform, at least not of copyright itself. It rather aims to
rearrange the framework and extend related rights.
======
Ancillary copyright: For the Commission this seems to be the centrepiece of
the reform. In order to remunerate journalists and publishers the proposal
wants to create a new, EU-wide exclusive right on using snippets from press
articles. [3] The idea is picked up from Germany and Spain where a similar
laws were past in recent years. The problem is that the system didn’t work.
[4] It fact, the entire experiment was quite costly for publishers. They
had to invest in a revenue system that never actually accumulated any
revenue. On top of that they suffered a decrease in traffic to their
websites as Google decided to shut down its News service in these
countries. In order to fix this, the European Commission has decided to
adopt for a “bigger gun” strategy. It proposes a 20-year protection (as
opposed to only 1 year in Germany) and broadens the exclusive right to all
“press publications” (instead of just “news publications” as was written in
the initial drafts). How this is going to make sure journalists incomes
remains unclear. A number of MEPs were not at all amused. [5] This should
provide the ingredients for a hot debate and an amendment fight in the
European Parliament.
======
Content Recognition Technologies: Article 13.1 reads that “service
providers that [...] provide access to large amounts of works [...]
uploaded by their users shall, in cooperation with rightholders, take
measures to ensure the functioning of agreements concluded with
rightsholders [...] or to prevent the availability of works identified by
rightsholders”. The original thought behind this article was to have all
sites with user-generated content apply YouTube’s Content ID technology or
a similar technology. [6] This is a considerably weakened wording compared
to drafts we've seen, where Wikipedia would have been surely covered by
this obligation. Now the situation is unclear, but the red lights are lit
on our side.
======
Undermining Intermediary Liability: While Article 13 was softened, it seems
that core principles of intermediary liability protection (something
Wikimedia relies on to be a neutral host) are being limited in Recital 38.
The current protection under the E-Commerce Directive that allows us legal
exemption from liability, for hosting user generated content in many
circumstances. Because of this editing and deletion decisions can be left
to the users. The recital asks for “appropriate and proportionate measures
to ensure protection of works”, citing “effective technologies" as a way to
go. It seems unclear whether the system (i.e. the great work our community
does in keeping illegal content off the sites) would be considered enough.
In any case, a limitation of the liability exception is a serious business
and real risk.
======
Proposed Exceptions: The Commission does propose a few exceptions and all
of them have one thing in common - they are extremely unambitious. There is
a text and data mining exception (Art. 3), but one that would apply only to
research organisations, exposing everyone else to newly created legal
risks. There is an exception in the field of education (Art. 4) that will
allow educational establishments the use of some protected works during
cross-border teaching activities. While this is great, it is supposed to
only apply if a secure network with limited access is used and won't apply
if “adequate licenses [...] are easily available”. A preservation of
cultural heritage exception (Art. 5) permits cultural heritage institutions
to make copies of works in their permanent collections only to the extent
necessary for preservation. [1]
======
What’s Missing: From our point of view several low-hanging fruits have been
ignored by the Commission. Firstly, Freedom of Panorama, about which the
Commission’s very own communication states that it is relevant and
recommends all Member States to introduce it. Secondly, “No new copyright
on digitisations”, which is a proposal that passed with comfortable
majorities in the InfoSoc Evaluation Report. [7] Apart from working to
minimise the potential harm to free knowledge from the reform, we will be
working on including these two fixes.Furthermore, a full text and data
mining exception as well as a user-generated content/fair dealings
provision would be beneficial to the sharing of knowledge online.
======
The Rest of the Package: This Digital Single Market reform package came in
three legislative files. [8] We just went over the copyright reform part
(mainly Information Society Directive reform). There is also a Directive
and Regulation to implement the Marakech Treaty for the Blind. [9] In
contrast to the copyright reform, this is mostly an excellent proposal that
should result in a solid exception allowing for easier access to knowledge
for visually impaired people. The third part is a Regulation laying down
rules applicable to online transmissions of broadcasting of television and
radio programmes. The idea being that the country of origin principle
should apply to online broadcasts, just as it applies to satellite and
cable transmission technologies. [10]
======
In the Pipeline: By the end of the year we are expecting two more relevant
reform proposals for us. Firslty, a review of the e-Privacy Directive is
planned. This should cover everything from cookies, over spam, to traffic
data. [11] In December we should also be reading a communication on IPRED
(Intellectual Property Rights Enforcement Directive) that could come along
with an actual reform proposal. There, we would be particularly interested
in the expected “notice-and-take-down” procedures, as well as any liability
provisions.
======
======
Court Ruling on Linking: The CJEU issued a new ruling on the
legality/illegality of linking. [12] So far, the court had always upheld
that linking and even framing are not infringing any rights, as long as
they point to a place on the internet that is freely accessible. The court
has now put this into perspective by saying that if you are trying to make
a profit and knew the content was illegal, you are very well liable. A
Dutch website has linked to photos of a Dutch starlet online. The photos
were not legally published yed, so the publisher of the Dutch Playboy went
to court. More details on the ruling feat. cat content: [13]
======
======
Transparency Register Mandatory: It looks like we’re indeed going to have a
mandatory transparency register soon. It will come in the form of an
interinstitutional agreement (i.e. between the Commission, Parliament and
Council) rather than as a Directive or Regulation. Perhaps this will be
something exciting for the folks working on Wikidata ;)
======
======
Freedom not Fear: And again it’s time! The annual get-together of digital
rights activists will take place again 14-17 October in Brussels. [14]
Network with the “who is who” of the digital rights scene and even visit
the European Parliament to talk to an MEP. This year a Visiting WEASEL from
Spain will also be around in Brussels and follow the week-end up with a few
days of hand-on advocacy work in Brussels.
======
======
[1]http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=17200
[2]http://ec.europa.eu/priorities/state-union-2016_en
[3]http://europa.eu/rapid/press-release_IP-16-3010_en.htm
[4]
http://www.communia-association.org/2015/10/19/more-evidence-from-germany-a…
[5]
https://www.marietjeschaake.eu/en/no-new-copyright-for-news-sites?color=pri…
[6]https://support.google.com/youtube/answer/2797370?hl=en
[7]https://juliareda.eu/copyright-evaluation-report/
[8]
https://ec.europa.eu/digital-single-market/en/news/promoting-fair-efficient…
[9]
https://ec.europa.eu/digital-single-market/en/news/proposed-regulation-cros…
[10]
https://ec.europa.eu/digital-single-market/en/news/proposal-regulation-layi…
[11]
https://en.wikipedia.org/wiki/Directive_on_Privacy_and_Electronic_Communica…
[12]https://drive.google.com/file/d/0B6d07lh0nNGNQjlNcmVEWjFXbU0/view
[13]
http://ipkitten.blogspot.be/2016/09/super-breaking-liberal-cjeu-says-that.h…
[14]https://www.freedomnotfear.org/