[Advocacy Advisors] EU Monitoring Report - September 2014

Hi all, it’s been a frenzy and it ain’t over yet. New people who we have to work with and a copyright reform proposal that is apparently coming within the next 12 months. A very busy Dimi Wikimedia and the EU September 2014 Report tl;dr The new Commissioner for Digital Economy & Society performed unconvincingly in his European Parliament hearing but said he wants to produce a copyright reform proposal in 6 months’ time. While the Commissioners are being checked out by the members of parliament, some of their units are moving offices - most notably for us the copyright unit is moving from DG MARKT to DG CONNECT. This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor ToC 1. EP Hearings: Commissioner for Digital Economy & Society Guenther Oettinger 2. Restructuring the EC: Copyright unit moving from MARKT to CONNECT 3. CETA: Released text contains chapters on e-commerce and IPR 4. CJEU: Judgement on digitisation and access to works on libraries 5. Recommended reads ----------------- ----------------- #EPhearings2014 #Oettinger #copyright 1. Hearing of Commissioner for Digital Economy & Society Guenther Oettinger Why is this relevant? One of the top priorities of the new President of the European Commission will be reforming copyright and two Commissioners will be responsible for this: Guenther Oettinger for Digital Economy & Society and Andrus Ansip for the Digital Single Market. From the looks of it Oettinger’s DG will lead the drafting while Ansip’s units will oversee the process. What happened? The hearing took place on Monday during a joint meeting of the EP Committees on Culture and Education (CULT) and Industry, Research and Energy (ITRE). [1] The expectations were that Oettinger, who has never dealt with internet or digital issues and headed the Energy DG in the past five year, will have some problems working himself into the new matter. For the most part, it looked like he’s not as well prepared as he could have been. He fumbled on questions like data protection and internet security (where it became obvious that he doesn’t know the difference between social networks and clouds), net neutrality (where he alternatively voiced support for the EP version, the Commission one and then offered to explain his position somewhere else) and free software (where he admitted he didn’t understand the question). To be fair, he nailed some parts on “Right to be forgotten” and “Data protection”, but the overall feeling was one of “hit and miss” answers and that he lacked a general direction. Brief highlights here: [2] Good news is that he seemed most coherent on copyright. He said he will work out a copyright reform proposal within the next six months. He talked a lot about - and that is a standard Commission position - balancing online access and authors’ rights. Importantly for us, he underlined that borders shouldn’t be visible within the EU and that this must include the digital world. The wording “I support the protection of intellectual property rights, but content must be available everywhere” hints he will seriously look into harmonising exceptions and limitations. However he also mentioned that “in the middle term states won’t relinquish own regulation”. My take is that DG Connect might try to harmonise some of the exceptions now and set a several decades long term for a single copyright title. Similar long transitional periods are known in the EU from harmonisation of driving licenses, for instance. What comes next? Oettinger makes the impression of a highly intelligent and a very experienced Brussels politician who has all the skills it takes to see through an own legislative proposal. The catch here is that he doesn't seem to know what he wants because for the most part he still doesn't know what he's talking about. I still believe that he is a step forward from someone who at this point five years ago already had his mind set on defending narrow IP business interests. Let’s consider him a blank page that we can we still write on. Next Monday the other “digital” Commissioner - Andrus Ansip from Estonia – who will be overseeing the digital single market will be heard.[3] After the hearings are over and people have settled in their new offices and gotten to know their teams we'll be release our Position Paper on EU Copyright to welcome our new partners from the Commission. [4] We're expecting a few more co-signatories in the coming days. I now have heard from at least three independent sources (Commission and Parliament) that the new reform proposal will be done within a year and that they might skip publishing a white paper on the topic first. ----------------- ----------------- #TeamJuncker #POTEC 2. Copyright Unit Moving from MARKT to CONNECT Why is this relevant? This is the unit that will be in charge of the copyright reform, proposal. What happened? So far the entire Intellectual Property Directory, including units on industrial property, copyright and counterfeiting & priacy, was housed in DG MARKT (Internal Market Directorate). [5] It has been announced that the copyright unit will be moving to the Digital Economy & Society DG. [6] The industrial property unit will be staying at MARKT and no one knows yet (including the people working there themselves who I talked to) if the counterfeiting unit is moving as well. What comes next? Packing and unpacking boxes. But seriously, I anticipate two changes: A) Now that copyright will be handle with a DG whose top priority isn’t the Internal Market alone, non-monetary arguments should gain more weight B) Copyright will always remain an inter-disciplinary field, but the competencies seem to be very well defined in this Commission. Last time around we had three Commissioners responsible. Now we have Oettinger drafting and Vice-President Ansip overseeing him. For the roles of the new DGs and their Commissioner see also the mission statements for Ansip [7] and Oettinger [8]. ----------------- ----------------- #CETA #IPR 3. Released EU-Canada trade agreement text contains chapters on e-commerce and IPR Why is this relevant? International agreements can contain chapters on intellectual property rights. These may set standards or enshrine rules that later become virtually untouchable. Since the negotiations are usually conducted in secret, special attention is required when documents are released, as the time for reaction is limited. The massive outcry against treaties like ACTA has Text released, don't know if it is out of scope. contains chapters on e-commerce and IPR rules on data protection negotiation logic in free trade is that: "if you offer something in CETA you have to offer at least the same in TTIP" What happened? The consolidated text of the Canada-EU Trade Agreement (CETA) was released last week. [9] It contains chapters on IPR and e-commerce and rules on data protection. It talks a lot about Digital Rights Management, a circumvention prohibition thereof and a prohibition on software that can be used to circumvent DRM. It also has an article on IPR enforcement (Article 18), which foresees the seizure of property on alleged infringers, including blocking of bank accounts and assets. This sounds a lot like ACTA (I’d say about 80 percent of the text is identical). It is also intriguing, because we still have not harmonised copyright and enforcement rules in the EU, raising the question on what grounds the Commission is negotiating this with Canada. There’s also a so-called “follow the money” approach for pursuing infringers who knowingly violate copyright law. They can be asked to pay compensations which would include alleged lost profits. What comes next? The major question here is, if this treaty is out of scope for the European Commission. If it touches upon policies which are not the exclusive competence of the EU, it would have to be ratified by the European Parliament, the Council and the parliaments of the 28 Member States. If it falls within EU law an okay from the Parliament and Council would be enough. It is also important in light of the talks on a similar EU-US trade agreement (TTIP). The negotiation logic in free trade agreements is that if you offer something to Canada, you’ll have to offer at least the same conditions to the USA. ----------------- ----------------- #digitisation #CJEU 4. CJEU to judge on digitisation and access to works on libraries Why is this relevant? Digitisation and access to knowledge is at the core of what we’re doing. What happened? A court case between a German publisher and the library of the Technical University of Darmstadt was referred to the Court of Justice of the European Union in Luxembourg. The issue was that the library had digitised a book and was offering its readers on-premises terminals that gave them the possibility to print them out or even copy them to a USB stick. According to German law, the library wouldn’t be allowed to offer simultaneous access to more readers than the copies it has actually acquired. The case with printing and copying onto USB stick is however not clarified and was therefore passed on to the EU court. The court judged [10] that (a) the library may digitise and offer such copies to its readers only if there is no reasonable offer by the publisher and that (b) the library may very well digitise books for preservation and for offering them to its readers on-site. Lastly, it proclaimed that (c) readers might under some circumstances make private copies of books, not distinguishing between hard and digital version here. The user will have to find appropriate copyright exceptions and limitations for doing so, which are not of the library’s concern. Further reading: [11] [12] What comes next? The German Federal Court must now interpret the judgement of the CJEU and rule on the case. ----------------- ----------------- #IT2014EU 5. The Italian Presidency and some relevant texts Here are some interesting texts on IPR issues produced during the Italian Presidency of the Council. There is no particularly pressing issue for us here yet, so consider this rather a recommendation than a must. Jeremy Rifkin: Digital Europe - The Rise of the Internet of Things and the Integration of the single Market [13] Description: Talks about how the “sharing economy” will turn the entire industry upside-down and touches upon pretty much every hot internet issue while discussing it. Italian Presidency Working Paper on Intellectual Property Rights Enforcement [14] Description: Prefer not to say anything here ----------------- ----------------- [1] http://www.europarl.europa.eu/ep-live/en/committees/video?event=20140929-14… [2] http://www.vieuws.eu/ict/5-toughest-questions-faced-gunther-oettinger-digit… [3] http://www.europarl.europa.eu/ep-live/en/committees/video?event=20141006-18… [4]https://meta.wikimedia.org/wiki/EU_policy/Position_Paper_on_EU_Copyright [5]http://ec.europa.eu/dgs/internal_market/departments/index_en.htm [6]http://europa.eu/rapid/press-release_IP-14-984_en.htm [7]http://ec.europa.eu/about/juncker-commission/docs/ansip_en.pdf [8]http://ec.europa.eu/about/juncker-commission/docs/oettinger_en.pdf [9]http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf [10] http://curia.europa.eu/juris/document/document.jsf?text=&docid=157511&a… [11] http://ipkitten.blogspot.be/2014/02/cjeu-to-decide-on-present-and-future-of… [12] http://www.hlmediacomms.com/2014/09/18/cjeu-renders-judgment-on-digitizing-… [13] https://ec.europa.eu/digital-agenda/sites/digital-agenda/files/discussions/… [14] http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013076%202014%20…