Yesterday was the last "trilogue" meeting for the year in Strasbourg. As
expected, and despite the claims by EP negotiator Axel Voss and the
Austrian Presidency, the Council and the Parliament weren't able to strike
a deal on Articles 11 & 13 and the next round of negotiations will be in
the second half of January.
We can still end the year on a positive note. The Council and the
Parliament reached an agreement on the "public domain safeguard". They have
both accepted the Commission proposal (which makes sure that digitisations
of public domain works will receive no new copyright or related rights in
the EU). With this, the chapter on exceptions and limitations is closed.
The text agreed upon reads:
*Article 5(1a) - Public domain*
Member States shall provide that, when the term of protection of a work of
visual art has expired, any material resulting from an act of reproduction
of that work shall not be subject to copyright or related rights, unless
the material resulting from that act of reproduction is original in the
sense that it is the author's own intellectual creation.
The expiry of the term of protection of a work entails the entry of that
work in the public domain and the expiry of the rights that Union copyright
law provides to that work. In the field of visual arts, the circulation of
faithful reproductions of works in the public domain contributes to the
access to and and promotion of culture (or access to cultural heritage). In
the digital environment the protection of these reproductions through
copyright or related rights is inconsistent with the expiry of the
copyright protection of works. In addition, differences between the
national copyright laws governing the protections of these reproductions
give rise to legal uncertainty and affect the cross-border dissemination of
works of visual arts in the public domain. Therefore, it should be
clarified that certain reproductions of works of visual arts in the public
domain should not be protected by copyright or related rights. This should
not prevent cultural heritage institutions from selling reproductions, such
This is also the first time the term "public domain" will become part of EU
law (even though it is not defined, as some Member States were against
that). Many thanks to everyone making this possible!
We’re writing to share a recent blog post
with you about the Magyar Jeti Zrt v. Hungary
<http://hudoc.echr.coe.int/eng?i=001-187930> case which was just decided in
the European Court of Human Rights. For those who are unfamiliar with the
case, it began when a Hungarian newspaper posted a hyperlink to an
interview on Youtube which was later judged to be defamatory to a
particular political party. The party successfully sued the newspaper for
hyperlinking to the interview, although the newspaper had neither conducted
the interview nor ratified its contents when it posted the link. After the
Supreme Court in Hungary confirmed that decision, the European Court of
Human Rights (ECHR) agreed to hear the case to determine if Hungary had
violated freedom of expression as protected by the European Convention on
Human Rights <https://www.echr.coe.int/Documents/Convention_ENG.pdf>.
Last week, the ECHR released its decision, finding that Hungary had indeed
violated Article 10 of the Convention. This is a significant win for free
in Europe, and a recognition of the importance of hyperlinking as
expression. Hyperlinks may not get a lot of attention, but they are
essential to collaboration, communication, and information sharing on the
web, and the court rightfully recognized this. We are excited to share this
decision and hope that it can serve as an example for future discussions
about free expression on the internet.
Allison Davenport & Jim Buatti
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.
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
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
ranging from music industry groups to the Internet Archive have filed
initial comments; (available here:
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
Happy to answer any questions people might have.
Senior Public Policy Manager
We would like to share with you comments
we submitted last month in response to one of the first open consultation
processes discussing a framework for a federal privacy regulation in the
U.S. The request for comments
was issued by the National Telecommunications and Information
Administration, an agency of the United States Department of Commerce that
advises on telecommunications policies, in this case: on consumer privacy.
You may read all of the comments submitted at the NTIA’s website
We felt it was important to give input here based on the Wikimedia
Foundation’s unique perspective on privacy and data protection.
Privacy is an important policy priority at the Wikimedia Foundation. When,
in 2013, revelations revealed the depth of the NSA’s surveillance into
online activity, Wikipedia usage changed demonstrably
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769645>. Research has
shown that people act differently when they worry their actions or
communications aren’t private, and that is the heart of why privacy is so
important to the Wikimedia movement. This is why we made the switch to HTTPS
and why we are currently engaged in a lawsuit
<https://policy.wikimedia.org/stopsurveillance/> challenging those very
same “Upstream” surveillance practices.
Privacy does not only mean protection from government eyes, and
increasingly, the topic of platforms collecting and selling data has been
the center of conversations about privacy in the U.S. In our comments, we
highlight how we are one of the few large internet platforms that does not
rely on the tracking or sale of user data to generate revenue, and we
incorporate this aspirational perspective when discussing the NTIA’s
proposed framework. Our comments welcome a much-needed harmonization of
privacy laws in the United States if done right, and suggest that the NTIA
needs greater clarity and a more clear focus on user-impact in order to do
We invite you to think about privacy as a priority for the future of free
knowledge, and what that means for the Wikimedia movement as privacy rules
and regulations become more prevalent in the U.S. and abroad.
Technology Law and Policy Fellow
1 Montgomery Street, Suite 1600
San Francisco, CA 94104