tl;dr
A copyright reform package is finally proposed. It offers just a few and
very limited new exceptions. But it would establish a new, EU-wide, 20-year
long right for press publishers on snippets. The proposal would also shift
the intermediary liability as enshrined in the E-Commerce Directive.
This and past reports:
https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Copyright Reform!? So, it’s finally kick-off time for the reform of the
European copyright framework. [1] Or is it? The first remarkable thing
about the proposed package is that it came a week early, because President
of the European Commission Jean-Claude Juncker decided to include it in his
State of the Union Speech [2]. The second remarkable thing is that it is
not so much a reform, at least not of copyright itself. It rather aims to
rearrange the framework and extend related rights.
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Ancillary copyright: For the Commission this seems to be the centrepiece of
the reform. In order to remunerate journalists and publishers the proposal
wants to create a new, EU-wide exclusive right on using snippets from press
articles. [3] The idea is picked up from Germany and Spain where a similar
laws were past in recent years. The problem is that the system didn’t work.
[4] It fact, the entire experiment was quite costly for publishers. They
had to invest in a revenue system that never actually accumulated any
revenue. On top of that they suffered a decrease in traffic to their
websites as Google decided to shut down its News service in these
countries. In order to fix this, the European Commission has decided to
adopt for a “bigger gun” strategy. It proposes a 20-year protection (as
opposed to only 1 year in Germany) and broadens the exclusive right to all
“press publications” (instead of just “news publications” as was written in
the initial drafts). How this is going to make sure journalists incomes
remains unclear. A number of MEPs were not at all amused. [5] This should
provide the ingredients for a hot debate and an amendment fight in the
European Parliament.
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Content Recognition Technologies: Article 13.1 reads that “service
providers that [...] provide access to large amounts of works [...]
uploaded by their users shall, in cooperation with rightholders, take
measures to ensure the functioning of agreements concluded with
rightsholders [...] or to prevent the availability of works identified by
rightsholders”. The original thought behind this article was to have all
sites with user-generated content apply YouTube’s Content ID technology or
a similar technology. [6] This is a considerably weakened wording compared
to drafts we've seen, where Wikipedia would have been surely covered by
this obligation. Now the situation is unclear, but the red lights are lit
on our side.
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Undermining Intermediary Liability: While Article 13 was softened, it seems
that core principles of intermediary liability protection (something
Wikimedia relies on to be a neutral host) are being limited in Recital 38.
The current protection under the E-Commerce Directive that allows us legal
exemption from liability, for hosting user generated content in many
circumstances. Because of this editing and deletion decisions can be left
to the users. The recital asks for “appropriate and proportionate measures
to ensure protection of works”, citing “effective technologies" as a way to
go. It seems unclear whether the system (i.e. the great work our community
does in keeping illegal content off the sites) would be considered enough.
In any case, a limitation of the liability exception is a serious business
and real risk.
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Proposed Exceptions: The Commission does propose a few exceptions and all
of them have one thing in common - they are extremely unambitious. There is
a text and data mining exception (Art. 3), but one that would apply only to
research organisations, exposing everyone else to newly created legal
risks. There is an exception in the field of education (Art. 4) that will
allow educational establishments the use of some protected works during
cross-border teaching activities. While this is great, it is supposed to
only apply if a secure network with limited access is used and won't apply
if “adequate licenses [...] are easily available”. A preservation of
cultural heritage exception (Art. 5) permits cultural heritage institutions
to make copies of works in their permanent collections only to the extent
necessary for preservation. [1]
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What’s Missing: From our point of view several low-hanging fruits have been
ignored by the Commission. Firstly, Freedom of Panorama, about which the
Commission’s very own communication states that it is relevant and
recommends all Member States to introduce it. Secondly, “No new copyright
on digitisations”, which is a proposal that passed with comfortable
majorities in the InfoSoc Evaluation Report. [7] Apart from working to
minimise the potential harm to free knowledge from the reform, we will be
working on including these two fixes.Furthermore, a full text and data
mining exception as well as a user-generated content/fair dealings
provision would be beneficial to the sharing of knowledge online.
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The Rest of the Package: This Digital Single Market reform package came in
three legislative files. [8] We just went over the copyright reform part
(mainly Information Society Directive reform). There is also a Directive
and Regulation to implement the Marakech Treaty for the Blind. [9] In
contrast to the copyright reform, this is mostly an excellent proposal that
should result in a solid exception allowing for easier access to knowledge
for visually impaired people. The third part is a Regulation laying down
rules applicable to online transmissions of broadcasting of television and
radio programmes. The idea being that the country of origin principle
should apply to online broadcasts, just as it applies to satellite and
cable transmission technologies. [10]
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In the Pipeline: By the end of the year we are expecting two more relevant
reform proposals for us. Firslty, a review of the e-Privacy Directive is
planned. This should cover everything from cookies, over spam, to traffic
data. [11] In December we should also be reading a communication on IPRED
(Intellectual Property Rights Enforcement Directive) that could come along
with an actual reform proposal. There, we would be particularly interested
in the expected “notice-and-take-down” procedures, as well as any liability
provisions.
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Court Ruling on Linking: The CJEU issued a new ruling on the
legality/illegality of linking. [12] So far, the court had always upheld
that linking and even framing are not infringing any rights, as long as
they point to a place on the internet that is freely accessible. The court
has now put this into perspective by saying that if you are trying to make
a profit and knew the content was illegal, you are very well liable. A
Dutch website has linked to photos of a Dutch starlet online. The photos
were not legally published yed, so the publisher of the Dutch Playboy went
to court. More details on the ruling feat. cat content: [13]
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Transparency Register Mandatory: It looks like we’re indeed going to have a
mandatory transparency register soon. It will come in the form of an
interinstitutional agreement (i.e. between the Commission, Parliament and
Council) rather than as a Directive or Regulation. Perhaps this will be
something exciting for the folks working on Wikidata ;)
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Freedom not Fear: And again it’s time! The annual get-together of digital
rights activists will take place again 14-17 October in Brussels. [14]
Network with the “who is who” of the digital rights scene and even visit
the European Parliament to talk to an MEP. This year a Visiting WEASEL from
Spain will also be around in Brussels and follow the week-end up with a few
days of hand-on advocacy work in Brussels.
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[1]http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=17200
[2]http://ec.europa.eu/priorities/state-union-2016_en
[3]http://europa.eu/rapid/press-release_IP-16-3010_en.htm
[4]
http://www.communia-association.org/2015/10/19/more-evidence-from-germany-a…
[5]
https://www.marietjeschaake.eu/en/no-new-copyright-for-news-sites?color=pri…
[
6]https://support.google.com/youtube/answer/2797370?hl=en
[7]https://juliareda.eu/copyright-evaluation-report/
[8]
https://ec.europa.eu/digital-single-market/en/news/promoting-fair-efficient…
[9]
https://ec.europa.eu/digital-single-market/en/news/proposed-regulation-cros…
[10]
https://ec.europa.eu/digital-single-market/en/news/proposal-regulation-layi…
[11]
https://en.wikipedia.org/wiki/Directive_on_Privacy_and_Electronic_Communica…
[
12]https://drive.google.com/file/d/0B6d07lh0nNGNQjlNcmVEWjFXbU0/view
[13]
http://ipkitten.blogspot.be/2016/09/super-breaking-liberal-cjeu-says-that.h…
[
14]https://www.freedomnotfear.org/