Tl;dr
Brussels is effectively on pause these days due to the European
Championship in France and the EU Referendum in the UK. This and the fact
that Wikimedia just about to begin means that this month’s report comes a
week early. Luckily, this gives us some time to take a closer look at
Member States (France and Belgium) and at a very exciting court ruling on
levies and the private copying exception.
This and past reports:
https://meta.wikimedia.org/wiki/EU_policy/Monitor
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FoP in Belgium: Sorry, be we’ve got to gloat! The Chamber of
Representatives of Belgium approved a bill to introduce freedom of
panorama: 85 in favour (Liberals, dutch-speaking Christian-Cemocrats and
Flemish National-Conservatives), 42 against (Socialists and french-speaking
Christian Democrats) with 12 abstentions (Greens). [1][2][3] This is, in
practice, the end of the process. We’re now waiting for the King to sign
the bill into law and for it to be published in the State Gazette. Ten days
later it will come into effect and everyone will have to respect & honour
it (e.g. by uploading images to Commons).
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How free?: It is a full exception without a non-commercial restriction or
even attribution requirements [4], although both had been proposed in
committee. [5]
As the exception was modelled after the Dutch law, objects need to be
depicted in their “natural environment”. I have not heard of this causing
any issues in the Netherlands. Additionally, there is a boilerplate
inclusion of the Berne three-step-test which, as we saw in Sweden, could
cause additonal headache, but legally isn’t something that wouldn’t have
been valid anyway.
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What’s next?: If you’re wondering what WMBE is doing next, we’ll be
lobbying on the free re-use of government documents, since the new open
data law came into effect. It lets the government specify a license they
wish to use. [6] We’ll also be looking for ways to assist the Luxembourg
community to get FoP there as well [7], as the two countries share strong
political and cultural links and we our communities share a Wiki Loves
Monuments edition.
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FoP in France: Nothing new on Freedom of Panorama here after the Senate
vote affirmed the NC restriction. A joint commitee between the Senate
(upper house) and the Assembly (lower house) confirmed that this will be
ther version sailing through. The only one who could request a change now
is the French government, but they won’t, as they didn’t even want it
include FoP he first place. [8]
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“Image levies” in France: As part of the same bill, the joint committee
introduced a “tax” to be collected from online services offering image
search. This, it seems, will include all images, including those that are
in the public domain or freely licensed. Additionally, the term search
engine is very broadly defined as services that “index and reference”
images. A clarification is attempted by adding that the provided
information has to be “collected automatically” [8], obviously in an
attempt to target Google but not UCG sites. It is an important question
whether Commons, with its Flickr bots that crawl and collect images from
other sites, falls under this definition. What is sad to see is that French
collecting societies will try to collect money on each and every image, but
Freedom of Panorama will nonetheless remain restricted.
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“The Reprobel case” is a very intersting legal battle, that might forebode
the future of the French image tax and also helps understand shifts in the
political willingness to reform copyright in Brussels. Reprobel is the
Belgian collecting society gathering levies from reprography and public
lending in the name of authors, publishers and journalists. It collects
money on every printer sold in the country.[9]
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Enter HP: Not being very happy with this, Hewlett-Packard Belgium sued
Reprobel. The (very well written) argument goes like this: There is a
private copying exception and the relevant law talks of “fair compensation”
for authors. However, not every printer is used to infringe on authors’
copyright and publisher’s rights are mostly not infringed at all.
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Preliminary Decision of the CJEU: The Cour d’appel de Bruxelles (Court of
Appeal of Brussels) referenced the case to the Court of Justice of European
Union seeking clarification on whether this general and undifferentiatied
collection of levies is permissible under the Information Society Directive
(a.k.a. Copyright Directive). The court’s decion states that "the notion
and level of fair compensation are linked to the harm resulting for the
author".[9]
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What this means in Brussels: We will have to wait for the actual ruling and
probably for the final court instance, but logically the reading by the
CJEU means that while authors (might) suffer harm, which is a precondition
to receive fair compensation, publishers are not exclusive reproduction
rightholders and do not suffer harm for the prupose of the private copying
exception under the InfoSoc (Copyright) Directive. This is a potentially
poisonous decision for the collecting societies and publishers as it may
open up a legal gap in their financing system. Since then there has been a
frenzy in Brussels among them to do everything necessary to close this
foreseeable gap. This also means that they can’t continue saying that the
Copyright Directive should remain closed. They are, in fact, asking for a
(copyright) reform.
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[1]
http://www.levif.be/actualite/belgique/adoption-de-la-liberte-de-panorama/a…
[2]http://deredactie.be/cm/vrtnieuws/politiek/1.2652533
[3]
http://www.lachambre.be/kvvcr/showpage.cfm?section=flwb&language=fr&…
[4]http://www.lachambre.be/FLWB/PDF/54/1484/54K1484011.pdf
[5]http://www.lachambre.be/FLWB/PDF/54/1484/54K1484007.pdf
[6]
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&…
[
7]https://meta.wikimedia.org/wiki/EU_policy/WMBE/FoPLUX
[8]
http://www.nextinpact.com/news/100309-en-france-on-restreint-liberte-panora…
[9]http://ipkitten.blogspot.be/search?q=reprobel
[10]
http://curia.europa.eu/juris/document/document.jsf?text=&docid=171384&a…