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DIGITAL SERVICES ACT
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Post-Deal Editing: Remember how the French Presidency of the Council wanted to get a deal done so badly, it pushed the Parliament and Member States to accept a “political deal” putting the main cornerstones in place. [1] However, a “technical deal” is still being negotiated. As part of this, the Council presented a series of changes to the Recitals of the Regulation. [2] The Recitals are opening paragraphs that lay down the intention of the legislation.
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Stay-Down Anger: One particular change was in a recital that indirectly opens the door for so-called “stay-down provisions”. Meaning a platform would have to re-scan its uploads constantly to make sure certain content doesn’t re-appear. The issue here is similar to that of “upload filters” and the fact that it is impossible to do without monitoring everything. At the same time the courts have ruled against general monitoring obligations and the DSA was so far staying clear of such provisions. On the civil society side Wikimedia, EDRi, AccessNow and EFF communicated to lawmakers that this is problematic. Industry associations also raised the issue, while inside the European Parliament the Liberals and Greens groups pushed back. The result is that the text will now be re-worked. So another round of negotiations.
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CSAM
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Sensitive Issue: The European Commission has published its proposal for a “Regulation on Fighting child sexual abuse: detection, removal and reporting of illegal content online.” [3] The debate around this is very tricky and cannot be allowed to escalate to copyright levels. The issue boils down to this: How much self-policing and monitoring of users content should platforms be required to do? How far-reaching should the content blocking and removal powers of authorities be?
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Proposal Cornerstones: The regulation suggests that platforms should perform a risk analysis every three years on how vulnerable they are to such abuse material and grooming. Based on this they should draw up a mitigation plan. These analyses and mitigation measures are to be public. Apart from that a designated national authority of the Member State where the service provider is represented may ask a court or independent administrative body (depending on the country) to issue detection or removal orders. Both orders would require scanning for child sexual abuse content, normally provided by a EU Centre to be established in The Hague. A designated national authority may also ask for an order to internet service providers to block URLs. This last provision also seems rather problematic for a number of reasons, including the method and technology mentioned and the lack of safeguards on the national level.
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Private Chats: The most controversial parts of the Regulation are beyond what covers Wikimedia projects. Detection and removal orders would also cover providers of interpersonal communications, i.e. instant messaging. Which would mean that if a detection order is issued, such providers would have to scan each private conversation for the hashes of specific CSA material. Again an issue with general monitoring. This is the main apple of discord.
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Open Data Consultation
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The Open Data Directive (formerly known as the Public Sector Information Directive) [4] allows the European Commission to lay down a list of high-value datasets that must be opened up by authorities for re-use. They have now published the draft implementation act containing this list, which includes geographic, climate and industrial statistics data, for instance. Feedback is open until 21 June. [5] We have in the past shared our position not only on the types of data to be opened, but also on the quality requirements for such datasets. [6] It is good to see some of it in the proposal and we are likely to reiterate some of the points in the current consultation. If you are interested in working on the submission with us, get in touch!
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Italy
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Two weeks ago the Italian government published a draft national digitisation plan and opened a public consultation until June 15th. This is bad news for Wikimedia projects. The most worrisome elements are:
1. The plan doesn’t recognise Creative Commons Zero as a relevant license for GLAMs. There is an explicit delegitimisation of this license.
2. The plan proposes to release all public domain content of cultural institutions by default under a MIC BY NC license (MIC stands for the Italian Ministry of Culture). The non-commercial restriction is apparently not based on copyright, but on an administrative right that allows cultural institutions to require a fee for commercial uses of heritage they manage, even if it is under public domain.
3. The most important issue for Wikimedia is the specific reference to Wikimedia Commons, which says that if you re-use Italian cultural heritage content from there, you need to pay a fee to the Ministry of Culture.
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Wikimedia Italia is in the process of gathering a coalition on this and responding to the proposal but also kicking off a public campaign. The Wikimedia Foundation and us in Brussels are engaged and will try to help. It might be useful to raise this issue in international media (even if specialised outlets), so if you have any contacts or platforms in your country, please consider writing about it. Else, there should be more information, including blog posts, about this soon.
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Denmark
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In April the Danish government put forth a legislative proposal for the regulation of online platforms independent of the DSA. The gist of the law is that social media platforms, generally defined as platforms with the purpose of creating a profile and browsing other profiles and user-submitted content with over 80.000 yearly users in Denmark, will be obliged to take down illegal content within 24 hours of reporting. The proposal contains an almost verbatim copy of the encyclopedia carveout of the DSM directive.
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Wikimedia Denmark sent a letter [7] to the legislative committee handling the proposal. They addressed four main points:
(1) the breadth of the online encyclopedia exemption,
(2) the definition of "illegal content", which I argued was very broad and could end with some undesirable scenarios where platforms would have to e.g. enforce libel law on behalf of private parties,
(3) the risk of over-removal, which had already been addressed by a civil rights org and
(4) protecting modération citoyenne. The letter is here in Danish:
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The parliamentary committee sent a question to the government based on this letter. In the meantime, the government was told by the European Commission that they wouldn't approve of this type of legislation so close to the DSA coming into force, so the proposal is pulled back for now. It may or may not resurface in the future, we will watch the space.
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Copyright Directive Transposition
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Both Romania and Lithuania have updated their copyright laws in the past two months. You may take a glimpse at the machine translated English versions of the texts for yourself [8][9]. You probably won’t, so here are two highlights: Both countries have introduced full-fledged copyright exceptions for parody and pastiche for all uses (not just uses on UGC platforms as required by the directive). Also, both countries have adopted the public domain safeguard. For a more in-depth (and fun) analysis, check out Communia’s Eurovision DSM contest site [10] later today. We partnered with ApTi (a EDRi member) in Romania and with the Baltic Audiovisual Archival Council in Lithuania to follow the process and participate in consultations.
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Czech Republic: The amendment to the Copyright Act, which transposes the Directive on Copyright in the Digital Single Market into the Czech law, has reached the Chamber of Deputies. It will now be discussed by the relevant committees. Open Content CZ (they are also the local Creative Commons chapter) and WMCZ are following the process.
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[3]https://ec.europa.eu/commission/presscorner/detail/en/IP_22_2976
[4]https://en.wikipedia.org/wiki/Directive_on_the_re-use_of_public_sector_information
[6]https://drive.google.com/file/d/1ZcaqQPOR083qBikCYSNfpVgUf-s29apL/view?usp=sharing
[7]https://ft.dk/samling/20211/lovforslag/L146/bilag/15/2567190.pdf
[8]https://docs.google.com/document/d/1rmRyq5MPMoREmlbVB_Xle6tpwf3c88IZ4650IbncgRk/edit
[9]https://docs.google.com/document/d/1SYWbt38YvDEsQCnBTF1QVT0QLE-I-MUkQX_snRqEImw/edit
[10]https://eurovision.communia-association.org/