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
======
======
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.
======
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.
======
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.
======
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.
======
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]
======
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.
======
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]
======
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.
======
======
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]
======
======
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 ;)
======
======
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.
======
======
[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
[5]https://www.marietjeschaake.eu/en/no-new-copyright-for-news-sites?color=primary
[6]https://support.google.com/youtube/answer/2797370?hl=en
[7]https://juliareda.eu/copyright-evaluation-report/
[11]https://en.wikipedia.org/wiki/Directive_on_Privacy_and_Electronic_Communications
[12]https://drive.google.com/file/d/0B6d07lh0nNGNQjlNcmVEWjFXbU0/view
[13]http://ipkitten.blogspot.be/2016/09/super-breaking-liberal-cjeu-says-that.html
[14]https://www.freedomnotfear.org/