Hi everyone,
I wanted to let you know that the Copyright Office is seeking comments on
rules that should make it easier for people to make noncommercial uses of
pre-1972 sound recordings that aren't being commercially exploited.
https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/
Comments were filed on November 26, and now there's an opportunity to
respond to those comments by December 11.
The Copyright Office is looking for public input on rules it must create
under the Music Modernization Act (MMA), which was signed into law last
month. (We called attention to the threats that earlier versions MMA posed
to the public domain; the passed compromise version contains provisions
that actually improve
<https://www.publicknowledge.org/news-blog/blogs/the-new-music-modernization…>
the
status quo in the public domain in some areas)
One part of the MMA lets a user make a noncommercial use of a sound
recording made before 1972 if they make a "good faith, reasonable search"
of Copyright Office databases and music services that offer a comprehensive
set of sound recordings for sale or streaming. If the user doesn't find the
work on those lists after their reasonable search, they can give notice to
the Copyright Office and wait 90 days to see if a rightsholder comes
forward and objects. If not, they can use the work.
The Copyright Office is writing the rules that define what a "good faith,
reasonable search" is, and it has more specific questions in its initial
notice. (here:
https://www.gpo.gov/fdsys/pkg/FR-2018-10-16/pdf/2018-22516.pdf) Entities
ranging from music industry groups to the Internet Archive have filed
initial comments; (available here:
https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&…)
responses to those are due on December 11.
The Wikimedia Foundation may file some short reply comments replying to
some key points made in other submissions, or possibly join other
organizations' comments, depending upon feedback.
I'm posting this to the list because I thought it might be valuable for the
Copyright Office to hear the perspective of community members who upload
pre-1972 sound recordings to Wikimedia Commons, or make other
non-commercial uses of the works. Even if you're not likely to use this
particular provision for Wikimedia Commons yourself (given the
restrictions), it could be useful for them to understand what searching for
sources and availability looks like to a typical user, and not necessarily
someone in the music industry.
You can make those perspectives known by filing comments at regulations.gov.
Instructions on how to file in this proceeding from the Copyright Office
are here:
https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/…
Happy to answer any questions people might have.
Thanks,
Sherwin
--
Sherwin Siy
Senior Public Policy Manager
Wikimedia Foundation
tl;dr
Copyright trilogues have been revolving around text and data mining,
safeguarding the public domain and fair remuneration, leaving the more
contentious articles 11 and 13 largely unackled. The Public Sector
Information Directive dealing with open data has or will shortly receive a
green light by both legislative bodies, making it very likely it will be
adopted early 2019.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
===
EU Copyright Reform
---
Trilogues, technical meetings and working group meetings are continuing to
string together while first signs of attrition are showing among
negotiators. [1] No significant progress has been made on Articles 11 and
13 [2], putting a bold question mark behind the Austrian Presidency’s
intention to wrap up the talks by the end of the year. Most of us here in
Brussels are convinced it will be the Romanian Presidency, starting 1
January, that will have the honours.
---
Contentwise, a lot of the attention is currently on the text and data mining
exception (TDM). The original proposal was limited only to research
organisations. The Parliament is proposing a second, optional, article that
would allow Member States to introduce broader exceptions. Somewhat
astonishingly, the Commission liked the idea, but now demands the second
exception to be mandatory, in order to keep this area of law harmonised.
The Council is sceptical, but could get on board, if it gets something in
return. Our job is to make sure this something isn’t the public domain
article.
---
Our safeguarding the public domain article is currently being hotly
discussed. The Parliament wants it, but the Council is not at all
convinced. Some countries (easy to point the finger to France, but there
are others) are staunchly against it. The European Commission has now
drafted compromise text which keeps the principle, but doesn’t mention the
public domain in the article (instead opting for “when the term of
protection of a work (...) has expired”). The Council had argued that we
cannot mention the public domain without defining it, but it is against a
definition.
===
Copyright on African Cultural Heritage
---
An interesting use case for the public domain safeguard principle could be
observed these days around the discussions to return art that was
disappropriated (or stolen, depending on the case and your views) during
colonial times to African countries. [3] France and Belgium have indicated
that they will return such objects. The French President has commissioned a
report published recently on how the restitutions should work. [4] This is
relevant to us, because the report mentions several times the photographic
and cinematographic heritage and states that: “Within the framework of the
project of restitutions, these digitized objects must be made part of a
radical practice of sharing, including how one rethinks the politics of
image rights use.(p. 68)”. More details on IP Kat: [5]
===
Terrorism Regulation
As the process in the European Parliament is stalling due to the competence
dispute between Internal Market Committee and Civil Liberties on which one
should lead on the dossier, it becomes clear that the regulation in the
proposed shape would do more harm than good. Removal orders issued by a
competent authority (it is up to a Member State to decide what that would
be) cannot be contested (other than if they meet the formal requirements).
Referrals are decided upon by a platform based on their terms of service,
which gives those services unprecedented power to curb freedom of speech at
a request of authorities. And did we mention proactive measures, the new
cool buzz phrase for content filtering? All that amounts to quite a gag on
content, which relationship with terrorism is ill-defined. In the meantime,
the report by the Parliament's Committee on Terrorism will be voted in
plenary in the December session. As it contains an explicit support for the
proactive measures, it will be an important guideline for the direction of
negotiations.
===
Public Sector Information Directive
---
The Directive that commands public bodies to release data and documents
under re-usable licenses will be voted on in the lead parliamentary
committee (Industry, Research, Energy) on Monday. [6] For a change, there
is no major fighting, very few ideological red lines and no animosity. The
compromise amendments have been suggested and almost all political groups
support almost all compromises. On top of that the general direction is
positive: publicly funded research and public undertakings will be included
in the scope and the situations in which public bodies can deny the release
of data or demand reimbursements for it will be further limited.
The only open question is about the exact definition of “open”. A clear cut
open definition has not been included, the parliament is instead opting for
pointing to EU documents and decisions, where such a definition can be
found. The Council in its General Approach has a definition that is
positive [7], but can be improved upon. This, it seems, will be the main
focus of the trilogues in January.
===
Events
---
Brussels: We are hosting our first “Monsters of Law Brussels” event with
guest speaker Eleonora Rosati on the national implementation of copyright
exceptions foreseen in EU law. [8]
---
Portugal: An event on copyright reform organised by Portuguese groups WMPT,
D3 and ANSOL in the national library. [9]
===
[1]https://twitter.com/mir_hrstka/status/1065890814038028288
[2]
https://juliareda.eu/wp-content/uploads/2018/11/Non-paper-on-Articles-11-an…
[3]
https://www.courrierinternational.com/article/la-belgique-doit-elle-restitu…
[4]http://restitutionreport2018.com/sarr_savoy_en.pdf
[5]
http://ipkitten.blogspot.com/2018/11/give-africa-its-cultural-heritage-back…
[6]
https://oeilm.secure.europarl.europa.eu/oeil-mobile/fiche-procedure/2018/01…
[7]https://data.consilium.europa.eu/doc/document/ST-13418-2018-INIT/en/pdf
[8]https://monstersoflaw.brussels/
[9]https://twitter.com/direitosdig/status/1067845261282574336
Hi all,
I am excited to announce that Sherwin Siy
<https://twitter.com/SherwinTKTK?lang=en> joined the Wikimedia Foundation
Legal Team as Senior Public Policy Manager.
Sherwin Siy has spent his career working in technology policy. He comes to
the Wikimedia Foundation having served since 2016 as Special Counsel at the
U.S. Federal Communications Commission (FCC) in the Competition Policy
Division of the Wireline Competition Bureau, where he worked on broadband
privacy rules and various numbering issues. Prior to that, he was Vice
President of Legal Affairs for Public Knowledge, where he coordinated the
legal team and worked on a variety of issues, with a focus on copyright and
internet platform law and policy. He has also taught as an adjunct
instructor at American University and George Washington University School
of Law.
We are very excited to welcome Sherwin to our team advocating for free
knowledge. He will be working with Jan Gerlach and others at the
Foundation, and hopefully will have an opportunity to meet many of you. He
will work from Washington DC, and you can reach him at <ssiy(a)wikimedia.org
>.
Welcome, Sherwin!
--
Stephen LaPorte
Legal Director
Wikimedia Foundation
*NOTICE: As an attorney for the Wikimedia Foundation, for legal and 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
The European Parliament, Commission and Council are negotiating the final
version of the copyright reform, including text and data mining, public
domain safeguards and upload filters. Meanwhile, the recast of the Public
Sector Information Directive is picking up pace and the Terrorism
Regulation is becoming yet another legislative proposal that could
introduce upload filtering.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
===
Trilogues on Copyright Reform
---
The first rounds of negotiations between the three main institutions are
already taking place. It was decided to discuss Articles 11 (ancillary
copyright) and 13 (platform liability) on the political level. This means
that the negotiating teams do not believe they can find a workable
compromise on the expert level (at attaché meetings) since the positions
are too far apart. It also means that, in the end, a Minister or Deputy
Minister level decision might need to break the deadlock in Council. Italy
has confirmed its opposition to both articles. And since Germany didn’t
vote for the current Council mandate, there is, at least theoretically a
blocking minority. This means that the file is stuck. However, Germany only
wants some improvements (namely the exclusion of small and medium sized
enterprises from Article 13).
Meanwhile the expert level meetings are dealing with text and data mining
and safeguarding the public domain. There is talk about what to do with the
additional, optional (and broad) TDM exception that the Parliament mandate
includes. The European Commission would like to see more mandatory and less
optional exceptions, as harmonisation is a stated goal of this reform. A
public domain safeguard is supported by the European Parliament and not
dislike by the Commission, but some Member States are raising many issues -
around the necessity of it and museum revenues. Wikimedia groups across
Europe are working on reaching out to their national governments on that.
Further reading: [1][2][3]
===
Public Sector Information Directive recast
As already explained last month, this Directive asks public bodies across
Europe to open up their content for re-use. Currently, the Directive
doesn’t really define “open” and stops short of covering public services
when they are performed by a private company. The European Commission
proposes to fix the latter, Wikimedia is working on fixing the former.
There is also an idea to extend “public services” to also cover charities
that receive a tax-free status and/or taxpayer money for pursuing a public
interest mission.
Further reading: [4][5][6]
===
Terrorism Regulation
---
The work on that file is not progressing very fast in EP. The Shadows at
the Civil Liberties Committee got appointed (Rapporteur Helga Stevens,
ECR/NL; ALDE Shadow Maite Pagazaurtundúa, ES; EPP Shadow Rashida Dati, FR;
S&D Shadow Josef Weidenholzer, AT; Greens Shadow Eva Joly, FR) and we are
holding meetings with them to find out about their positions. So far it
seems that there is a will to “do something” about the imminent terrorism
threat and spreading radicalisation. Sadly, the proposal for the regulation
displays lack of understanding how social media platforms work including
that boosting controversial content is part of their business model. Would
that be an obstacle to proceeding fast with this file? Perhaps, since there
is no meeting schedule for it yet at LIBE, and the other Committees, ITRE
and IMCO (where Greens’ Julia Reda is the Rapporteur), still haven’t
appointed all their Shadows.
Further reading: [7][8]
===
[1]
https://cdt.org/insight/article-13-dsm-copyright-directive-cdts-recommendat…
[2]
https://www.communia-association.org/2018/10/12/eu-copyright-reform-grinds-…
[3]https://juliareda.eu/2018/10/copyright-trilogue-positions/
[4]
https://discuss.okfn.org/t/psi-directive-review-your-opinion-on-the-propose…
[5]
http://onepolicyplace.com/2018/06/19/opp-meeting-summary-ep-imco-committee-…
[6]
https://ec.europa.eu/digital-single-market/european-legislation-reuse-publi…
[7]
https://edri.org/press-release-eu-terrorism-regulation-an-eu-election-tacti…
[8]
http://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-f…