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/article-normal-513309.html
[2]http://deredactie.be/cm/vrtnieuws/politiek/1.2652533
[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&cn=2016050417&table_name=loi
[7]https://meta.wikimedia.org/wiki/EU_policy/WMBE/FoPLUX
[9]http://ipkitten.blogspot.be/search?q=reprobel