The Wikimedia Foundation Legal team is pleased to announce the release of
the Foundation's most recent Transparency Report
<https://transparency.wikimedia.org/>. We release this report twice
annually to document requests the Foundation receives to alter or remove
content on the projects or disclose nonpublic user data.
This edition of the report covers requests we received from January to June
2018. During that period, the Foundation received 388 requests to alter or
remove content on the projects. We took no action in response to these
requests, and most issues were directed to the community, where they could
be addressed according to established community processes. We also received
12 Digital Millennium Copyright Act
and granted two of them. As usual, the report also includes stories of
interesting requests (including the block in Turkey), and an FAQ with more
In addition to the online report, we have also released a completely
refreshed edition of our print report, featuring the latest data and
stories. These reports will be available at Wikimedia community events
throughout the next six months, beginning today at Wikimania. If you're at
Wikimania, find Leighanna to pick one up!
Please check out the full report online
<https://transparency.wikimedia.org/>, and see our blog post
for more information.
Aeryn Palmer, Jim Buatti, and Leighanna Mixter
1 Montgomery Street, Suite 1600
San Francisco, CA 94104
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
*Greetings friends,On 13 July, the Wikimedia Foundation signed on to a
Digital Due Process Coalition <https://digitaldueprocess.org/> letter
asking the U.S. Senate to adopt the Email Privacy Act
<https://en.wikipedia.org/wiki/Email_Privacy_Act>, a bill that would
require the U.S. government to obtain a warrant
<https://en.wikipedia.org/wiki/Warrant_(law)> before searching the contents
of email communications. We are proud to join with the broad group of civil
society organizations and businesses that are speaking out on this issue.
The Foundation first joined the Digital Due Process Coalition in 2013 to
advocate reform of the Electronic Communications Privacy Act
(ECPA). In our view, one of ECPA's greatest deficiencies is the lack of a
warrant requirement for certain kinds of email communications. While
imperfect, we believe that the Email Privacy Act would go a long way
towards addressing these concerns. This letter is part of our longstanding
commitment to user privacy. We believe that, where possible, governments
should not be able to access the contents of private communications without
first demonstrating probable cause
<https://en.wikipedia.org/wiki/Probable_cause> to a neutral judge or
magistrate. For those interested, we have attached a copy of the letter
here. Thank you very much. Cheers,Jim *
1 Montgomery Street, Suite 1600
San Francisco, CA 94104
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. For legal reasons, I may only
serve as an attorney for the Wikimedia Foundation. This means I may not
give legal advice to or serve as a lawyer for community members,
volunteers, or staff members in their personal capacity.
The plenary of the European Parliament has just rejected the Legal Affairs
Committee with 278-318 votes and 31 abstentions.
This was a roll-call vote so will we know exactly who voted how.
This was a very tiring campaign that took us on an emotional rollercoaster
ride. Thanks to all volunteers and staff who helped. I am convinced that it
was us and our actions that made the difference of 30 votes possible.
Please remember though, that this just means that the EP will review the
text in September in plenary. We will need to make sure amendment proposals
are made and they receive a majority.
We will start working on this right away later today, but for the moment
you will understand that I need a drink.
Cheers from Strasbourg,
Some Wikimedians are wondering if this copyright law have an impact on WP
since the servers are in the United States?
And do we know how many countries are concerned by this directive? With
Free trade agreements, countries outside EU could be impacted (Switzerland
? Tunisia ?...)
This time we will call it a “EU copyright reform special”, so prepare to
read a single-issue report.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
What the JURI Committee Adopted: It took the secretariat of the Legal
Affairs committee a while to circulate a consolidated text on what was
exactly adopted. There has been an erratum on Article 11, paragraph 4, but
the text is pretty much available now. See - 
Article 13: Article 13 changes the liability regime for most online
platforms allowing users to upload content by requiring them to sign deals
with any requesting rightholders. Else, the online platforms must take
measures to assure the non-availability of infringing content. The result
of all this is that platforms are directly liable for their users.
Wikimedia carve-out for Article 13: Article 2, paragraph 1, point 4b
defines who falls under the new liability regime. It is sloppily written,
but says “Services acting in a non-commercial purpose capacity such as
online encyclopaedia”. We don’t think only Wikipedia is exempted, as
"online encyclopaedia" is only an example (“such as”). A bit of an
uncertainty is cause the use of the term “services” rather than
“platforms”. But this way GitHub, that has a non-commercial code sharing
service on a platform that also offers commercial products, can probably
also benefit. The issue with this is, of course, that Wikimedia and GitHub
were simply loud enough in Brussels and thousands of services are probably
Article 11: This article requires Member States (and by extension EFTA
countries) to establish a new neighbouring right for press publishers that
lasts for 20 years. So 32 new parallel neighbouring rights on the internet.
<sarcasm>Yey!</sarcasm> The idea is that news publishers should be able to
control the previews shown of their articles online and demand remuneration
for it. In order to appease some of the criticism the committee tried to
cushion the text by saying that the new right “shall not prevent legitimate
private and non-commercial use of press publications by individual users”
and “shall not extend to acts of hyperlinking”. Both don't go a terribly
long way to appease the masses. We have had the discussion in the past
about sharing a photo of the Atomium on Twitter - commercial or
non-commercial? Probably commercial. Also, the EU Court of Justice
jurisprudence is quite unclear about what a link constitutes. Only
alphanumeric bit.ly like links, or can it contain the title of the article?
Either way, bibliographies or further reading lists of recent news
publications are covered and would require licensing.
(Some) public domain safeguarding: In Article 5 we did manage to get in a
very limited (Cavada!) public domain safeguard that reads as follows:
Member States shall ensure that any material resulting from an act of
reproduction of material in the public domain shall not be subject to
copyright or related rights, provided that such reproduction is a faithful
reproduction for purposes of preservation of the original material.
As you may imagine, we were trying to fix or remove the part after the
comma. In the end this half sentence is quite unclear and five lawyers are
telling us five different things about what it would mean. This is
something to grind down during trilogue, but even so, it at least should
solve the Museo Thyssen-Bornemisza copyright claims on medieval art. 
No new exceptions: The user-generated content exception was voted down,
although the MEPs, in a demonstration of them not knowing what they are
doing at least some of the time, adopted its recitals. So was the Freedom
of Panorama exception. So no news here.
More rights for rightsholders: To emphasise the point, the the committee
majority was solidly on the side of new exclusive rights but no new
exceptions, it adopted some goodies for sports events organisers:
Article 12 a Protection of sport event organizers
Member States shall provide sport event organizers with the rights provided
for inArticle 2 and Article 3 (2) of Directive2001/29/EC and Article 7 of
And a licensing requirement for image searches:
Member States shall ensure that information society service providers that
automatically reproduce or refer to significant amounts of
visual works and make them available to the public for the purpose of
referencing conclude fair and balanced licensing agreements with any
rightholders in order to ensure their fair remuneration.
Procedure & next steps: So the Legal Affairs committee adopted a text and
wants to start negotiating with the Council on the final version
(trilogue). But here’s how things will go.
5 July Vote: On Thursday the JURI mandate will be challenged in plenary.
One tenth of MEPs can challenge pretty much any decision in plenary. This
will happen and a vote will be held. All 750 members will vote and a simple
majority is enough.
If the mandate is confirmed: In this case trilogue meetings will be held
beginning in September. At these meetings representatives of the
Commission, the Council Presidency and the European Parliament (rapporteur
and shadow-rapporteurs) will be hammering out the final wording. Seen the
JURI committee text and the Council text are already quite compatible, no
major changes can be expected.
If the mandate is rejected: Then the text will be re-opened in September
(most likely) in plenary and it will be possible to table and vote on
amendments. We would need 10% of the Parliament, so 75 members, to propose
Final Vote: Regardless of the path taken, a final vote in both chambers
(Council and Parliament) will need to be held to adopt the Directive text
finalised in trilogue. This is expected to happen December/January. If it
takes longer than this, we’ll be getting very close to elections and risk
not finishing the reform within this legislature (can be bad or good).
Wikimedia actions: In the past years and months, but more notably in the
past days several Wikimedia actions have been organised to prepare for the
5 July vote and voice our issues. Here is a selection:
Press Conference in Vienna: Katherine Maher (WMF), Claudia Garád (WMAT),
Dimi (FKAGEU) and Thomas Lohninger (epicenter.works) organised a press
conference on Friday to mark the beginning of the Austrian Presidency and
to get the national press up to speed on copyright. 
Banner on Italian Wikipedia: Italian Wikipedia has decided to run a banner.
 See it here 
Banner on English Wikipedia: It looks like the English Wikipedia will run a
somewhat neutrally worded banner on Tuesday. 
Statement by the Wikimedia Foundation board and the General Legal Council:
The board of trustees of the Wikimedia Foundation has unanimously adopted a
statement on the EU copyright package, saying that it contradicts our
vision and calls for rejection of a mandate based on the current text. 
Meanwhile Eileen Hershenov explains how the proposed text will hurt the
web and Wikipedia. 
Vote in Strasbourg: Expected on Thursday before noon. Three Wikimedians
will be inside the building in the days ahead in order to meet MEPs and
staff to deliver last arguments.
What our opponents are saying: Always important to keep an eye on the
Voss: The rapporteur is saying himself that he is unsure about how the
plenary vote will go.  He is even publicly stating that parts of his own
group won’t support him. This is astonishing for the EPP group, the
parliament’s largest and most disciplined one. It could, however, also be a
way to rally the troops.
Crying #FakeNews: Meanwhile collecting societies and rightholder groups
have taken to Twitter and personal meetings to say that upload filters
aren’t part of the text, while explaining that upload filters are already
deployed and thus not scary. Ah, and to say that all the opposition to
Article 13 is essentially “fake news”. 
Cultural organisations and their ministries: When the Berlin Philharmonic
starts supporting Article 13 publicly, you know we got ourselves a big
policy brawl.  Meanwhile in Austria, all political groups had stated
that they would vote against the mandate. Then their Minister of Culture
sent around a letter to MEPs urging them to support it. Now the Austrian
EPP position seems a bit more shaky than last week.
And the Ministries:
On the 23rd of June, Danish MEP Morten Løkkegaard (Danish Liberal Party
/ ALDE) wrote an op-ed in the Danish newspaper /Berlingske Tidende
/defending the copyright proposal. (See
At the WMDK board meeting on the 25th we decided we should try to write
a rebuttal and see if the paper would bring it. I'm hoping to get board
approval and send it to the paper tomorrow so that it might possibly be
printed or posted on their website on the 4th, the day before the vote.
Obviously it's in Danish, but I've created a translation:
On the 23rd of June, Morten Løkkegaard published an op-ed defending
the European Commissions controversial proposal for a new directive
on copyright. His colleague in the ALDE-group, Jens Rohde, was also
arguing for it on Twitter where he characterized opponents who had
contacted him regarding the proposal as hackers, spammers, internet
communists or perhaps all of them at once.
Løkkegaard and other supporters of the proposals have an easy
foundation to argue from: Copyright is not something the average
citizen thinks about in their daily life, and very few people have
the time and interest to read the 33 page long proposal as well as
the relevant amendments, opinions and other relevant material about
the legislation, and even fewer people have the relevant knowledge
to understand what the directive actually does. That makes it
possible for Løkkegaard and co. to frame the debate however they
like, which is why one should be observant of the fact that they
never actually refer to the text of the proposal.
Contrary to Løkkegaard and other proponents of the proposal,
Wikimedia Denmark, along the line of other nonprofit-organizations
such as the Electronic Frontier Foundation, Creative Commons and
European Digital Rights (EDRi), that the proposal is
disproportionate, will strangle innovation and free knowledge
excahnge on the internet, and doesn't adequately consider legal use
of copyrighted material. A long line of experts have also criticized
the proposal for the same reasons. We're opposed to both article 11
and 13 of the proposal, but are choosing to focus on article 13
since that is the most damaging one.
Article 13 fundamentally changes who is liable for copyright
infringing material on the internet, there is no disagreement on
this point. Until now, the "notice and takedown"-method has been
used, where a hosting provider such as YouTube or Flickr are only
liable for infringing material if they are made aware of it and then
refuse to or refrain from removing it, a rational way of doing
things and in line with how we traditionally look at liability. With
the new directive, hosting providers have to actively enter into
agreements with copyright collectives regarding the hosting
providers' users' use of the rightsholders material or otherwise be
directly responsible for copyright infringing material on their
platforms, regardless of intent (art. 13 sec. 1 as amended). As a
part of these agreements, or if the rightsholders refuse to or don't
provide license agreements, the hosting provider has to implement
content recognition filters that let rightsholders scan uploaded
content to check whether it contains infringing content (likewise
This is where the proponents of the directive start protesting and
claim that the directive does not mandate that hosting providers use
content recognition filters, they're just mentioned as a possible
solution, and the proponents were so nice as to remove two thirds of
the mentions content recognition filters in the proposal! However,
it doesn't take much consideration to realize that this is the only
way to protect oneself from liability. Regardless of the wording,
article 13 is a de facto mandate to implement content recognition
filters. This is problematic for multiple reasons.
Content recognition filters cannot respect legal use of copyrighted
material, the Danish quotation rule for example. Prior experience
from platforms such as YouTube, which already uses a content
recognition system has shown that when movie or game critics use
short snippets of copyrighted material to contextualize their
critique, something which is allowed under their respective local
laws, they almost always get caught up in content recognition
filters that "claim" the video on behalf of rightsholders. This is
because of the automated nature of content recognition: it is
impossible to manually go through the large amount of content posted
on hosting providers' platforms, so rightsholders automate the
process, and thus context dies. It is completely irrelevant whether
your use of a text excerpt from a copyrighted book is protected
under the right of quotation, an automated proces cannot adequately
adress that. By the way, that's what is meant when article 13 is
criticized for strangling free expression, as opposed to how
Løkkegaard frames it, and it isn't changed by the weasel words
regarding "fundemental rights" that has been added multiple places
in the proposal after it was subject to criticism (such as recital
39 as amended).
Proponents of the proposal will probably point to article 13. sec. 2
which mandate that hosting providers establish a complaint process
for users who feel that they have been incorrectly impacted by
content recognition filters. Remarkably, the proposal does not
further explain what such a complaint process would contain other
than the fact that it should be "without delay", that rightsholders
must "justify" their characterization of the content as infringing,
and that the identity of users should not be revealed to the
rightsholder (art 13. sec. 2). This phrasing is incredibly vague and
could result in widely different protection of user rights in the
individual member states, somewhat ironic for a proposal meant to
harmonize copyright in the EU. Regardless of each states
implementatoin, this proces essentially means that the user is
guilty until proven innocent, something which is contrary to
fundemental EU principle.
As a supporting organization for Wikipedia and Wikimedia, article 13
is harmful to projects like ours that freely let users change the
contents of our platform, a model that doesn't work if content
recognition filters have to check every contribution. Proponents of
the directive have tried to protect themselves against this
criticism through recital 37a which carves out hosting providers
with "non-commercial purposes such as online-encyclopedias […] open
source-software development platforms" or "scientific archives".
This protection is inadequate.
First of all, the phrasing is incredibly vague. Unless you are
literally a non-commercial online-encyclopedia, it's hard to know
whether your fall under the phrasing of the carveout. Furthermore,
the proposal doesn't explain how platforms that are primarily
non-commercial but still have some connection to commercial
enterprises should be treated. Wikimedia Commons, the media platform
that supports Wikipedia, is a non-commercial venture, but the images
hosted on the platform are meant for free use and thus can be used
in a commercial context. GitHub is a platform that is primarily used
for open source-software development and which is primarily free to
use, but the platform also offers commercial solutions for
companies. Are these two examples exempt from the directive?
Secondly, it's worth noting that Wikimedia and Github have spent a
lot of resources making our opinion known in Brussels, so even if
you assume that Wikipedia, Wikimedia Commons and projects like
GitHub are covered by the exemption, it looks like it's been written
specifically to appease us, but doesn't do anything further to
protect smaller actors that don't have the same political impact.
That is unacceptable.
The average reader would probably think that all this is extremely
esoteric and hard to understand, and that is pretty much true.
However, one cannot let complexity make it possible to pass what is
at best good-faith legislative carelessness, at worst a deliberate
limitation on the rights of citizens. Article 13, and other parts of
the proposal for that matter (such as article 11), will affect
anyone who uploads conent to the internet, and it is extremely
important to be watchful of how the Danish members of the European
Parliament vote on the proposal. The parliament votes on the
directive on the 5th of July, and it is imperative that it isn't passed.
I know some of the phrasing is a bit awkward, but that's mostly down to
the translation. Any feedback from the publicpolicy list would be
Matthias Smed Larsen