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
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EU Copyright Reform
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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.
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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.
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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.
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Copyright on African Cultural Heritage
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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]
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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.
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Public Sector Information Directive
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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.
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Events
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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]
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Portugal: An event on copyright reform organised by Portuguese groups WMPT, D3 and ANSOL in the national library. [9]
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[1]https://twitter.com/mir_hrstka/status/1065890814038028288
[2]https://juliareda.eu/wp-content/uploads/2018/11/Non-paper-on-Articles-11-and-13.pdf
[4]http://restitutionreport2018.com/sarr_savoy_en.pdf
[5]http://ipkitten.blogspot.com/2018/11/give-africa-its-cultural-heritage-back.html
[6]https://oeilm.secure.europarl.europa.eu/oeil-mobile/fiche-procedure/2018/0111(COD)
[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