tl;dr

Now that the fog surrounding the European Commission’s copyright proposal has lifted, we are beginning to build up steady pressure for significant improvements (FoP, safeguarding the PD, TDM, databases). Currently we’re focusing on consulting national governments and talking to key MEPs.

This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor

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Limiting the negative effects on free knowledge projects is essential. But we also want to be more ambitious and try to establish better conditions for the sharing of information. Below is a number of fixes will work to include in the reform. The dossier is currently in the European Parliament [2] and will stay there in the following months.

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Freedom of Panorama: The European Commission ran a consultation on this question. The results wre apparently favourable towards including it. [2] The Commission's very own communication states that it “confirms the relevance of this exception” and “strongly recommends that all Member States implement this exception”. [3] At the press conference announcing the reform, Vice-President Ansip confirmed that a vast majority (26 out of 28 Member States) would accept such an exception. [4] Despite these unprecedented favourable conditions for a mandatory exception, the Commission decided not to include it in the text. [5] We now must seize the opportunity to fix this in the European Parliament.

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Safeguarding the Public Domain: One of the few things that were not questioned in the Information Society Directive Evaluation Report is the principle that there should be no new copyright or related rights on digitisations. [6] With issues we’re experiencing around the Reiss-Engelhorn case [7] and copyright claims on public domain works [8], this is something we would greatly benefit from. Our goal will be to include such a public domain safeguard in Article 5 “Preservation of cultural heritage”, as we do believe it hinders exactly this.

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Full TDM: Text and data mining is one of the exceptions included in the current version of the text. However, the European Commission decided it should apply only to “research organisations”. As our projects do not fall under this category, this would not cover our use of automated data processing technologies, even when accessing databases of national statistics institutes or medical databases for example. A full exception, along the principle of “right to read is right to mine”, that applies to everyone, would provide a lot more legal clarity. For us, for data journalists and for start-ups.

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Database Rights Regime Change: The reform proposal officially amends not only the Copyright Directive, but also the Database Directive. [9] The latter has been a nuisance to us, as it creates an additional sui generis right on databases in Europe. A right that potentially lasts forever. This is one of the reasons why Wikidata accepts only CC0 licenses. [10] The European Commission hasn’t found proof that this extra protection has led to any additional investment in databases in Europe. [11] The European Parliament called for the abolishing of the entire Directive. [12] However, if we completely discard the Database Directive, we might revert back to pre-existing national legislations, which in some cases were even more restrictive. The main problem with this extra protection is that most organisations don’t know about it or even want it. This is why we believe that including a “protection upon registration” principle should be taken into consideration as a quick & dirty fix here.

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Upload Filtering & Intermediary Liability: Article 13 asks that “Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” to conclude agreements with rightsholders. It also proposes the implementation of “effective content recognition technologies”. On top of that, Recital 38 re-interprets the intermediary liability protection regime in the E-Commerce Directive, which effectively protects Wikipedia from damage claims. This protection currently states that we’re not liable for illegal content on our sites as long as we didn’t know about it and act upon after being informed. The two paragraphs mentioned here could calncel this protection and force us to monitor all content added to our projects before it goes live. Something that puts free knowledge projects at risk. Our goal would be to ensure that the protection we currently enjoy under the E-Commerce Directive remains untouched and no upload filtering systems are required.

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Ancillary Copyright: The proposal aims to create a EU-wide ancillary copyright regime. In contrast to the very unsuccessful national experiments with such systems (Germany and Spain), this version goes much further. It would include all press publications, last for 20 years and doesn't provide for any exceptions whatsoever. Not even the use of text or image snippets to preview an article. The issue for us here is that whenever we provide a text excerpt along with the hyperlink, this would require an additional license clearing (unless the use falls under the citation exception). Theoretically, even the link itself could be covered under this new right, if it includes the name of the the article for instance. We will participate in the discussions on this part of the proposal and raise our concerns demanding a fact-based approach to legislation.

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National Consultations: Many European national governments have started their own consultations on this reform or have, upon request, indicated ways to make our position known. This is important, as every government gets a vote on the reform and can propose changes. We are currently working with most EU chapters and user-groups on making ourselves heard nationally raising all or some of the issues listed above. WMFI, WMUK, WMSE, WMAT, WMCZ, WMBGUG, WMEE, WMDE and WMPL have already submitted their positions. [13] We are currently working with WMES, WMDK, WMIEUG, WMNL, WMFR and potentially WMPT and WMGRUG to do the same. Unfortunately we missed the deadlines in Hungary and Romania.

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What we are working on right now - Visiting WEASELS: There are few things as effective than having a volunteer from a MEPs own country asking him or her for help in their own language.In October, Fernando from WMES came to Brussels and met with 4 Spanish MEPs. In November, Heikki from WMFI will do the same and in January Dimitris form Greece will follow suit. All these WEASELS receive know-how and practical training and continue working on public policy back home. If you are interested in such a Visiting WEASEL scholarship for your user-group or chapter, please let me know!

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Copyright Reform - What others are working on: Some of the priorities of like-minded organisations that Wikimedians might be interested in include a “right to re-use”/UCG exception initiative led by Mozilla [14] and an attempt to fix the education exception by Communia. [15] If you are interested in helping them, let me know and I will put you in touch!

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In other news

Almost hard to believe, but non-copyright things are also happening.

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AVMSD: Hidden behind this acronym is the Audiovisual Media Services Directive, which defines how much advertisement is acceptable during one hour of television, how much European content cinemas and broadcasters have to provide and other such rules. As these apply only to traditional media, the organisations thereof have been complaining that online services directly competing with them have less rules to follow. As a response, the European Commission has proposed a reform of the Directive to include online channels. [16] While the Commission claims that they are targeting only services such a YouTube, iTunes, Netflix etc., it’s definition of the scope includes “video-sharing platform services which do not have editorial responsibility for the content that they store but which organise that content, through various means.” As Commons might very well fall into this definition we are analysing and monitoring this dossier.

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E-Privacy Reform: An E-Privacy Directive [17] revision is planned. This will cover everything along the lines of cookies, user data, spam and traffic data. We know that there will be a communication on this by the end of the year. Possibly, this will come with a reform proposal. One question that is being openly discussed is whether so-called over-the-top communication services (e.g. WhatsApp, Facebook Messenger, Google Hangouts) should be submitted to the same type of privacy or data retention rules as standard telecoms services. As this touches upon the privacy of each and everyone online, we are following this file and will be ready to react if necessary.

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[1]http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2016/0280(COD)&l=en

[2]http://ec.europa.eu/information_society/newsroom/image/document/2016-37/synopsis_report_-_panorama_exception_-_final_17049.pdf

[3]http://ec.europa.eu/newsroom/dae/document.cfm?doc_id=17218

[4]http://ec.europa.eu/avservices/video/player.cfm?sitelang=en&ref=I125901

[5]http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2016/0593/COM_COM(2016)0593_EN.pdf

[6]https://juliareda.eu/copyright-evaluation-report-explained/#publicdomain

[7]https://blog.wikimedia.de/2016/06/21/erklaerung-zum-fall-reiss-engelhorn-museen/

[8]https://commons.wikimedia.org/wiki/Commons:Reuse_of_PD-Art_photographs

[9]http://eur-lex.europa.eu/lexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML

[10]https://www.wikidata.org/wiki/Wikidata:Data_donation#Wikidata_and_copyright

[11]http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf