Wikimedia and the EU
February Report
We’ve had some crazy weeks over here with things happening on the political, policy and legal fronts and across Brussels, Luxembourg and Strasbourg.
Dimi
tl;dr
A White Paper on copyright can be expected before the summer break, according to Commissioner Barnier. He also wants to revive the attempts for “notice and action” legislation, although even his staff in Brussels was unaware of that. In Luxembourg, the Court of Justice of the EU ruled that no extra permission is needed to link to content available online. Finally, in Strasbourg, the Parliament passed the Collective Rights Management Directive explicitly allowing “non-commercial” licensing.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor/MR
ToC
1. Beyond the Copyright Consultation
2. CJEU: Linking to Copyrighted Content Without Permission Legal
3. Restarting the Notice and Take Down Directive
4. Collective Rights Management Directive Adopted
5. Short Stories: Internet Governance, Food Porn and a Study on InfoSoc
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-----------------#copyright
1. Beyond the Copyright Consultation
Why is this relevant?
The Consultation on Copyright by the European Commission [1] targets almost all our IP issues areas and is likely to play a significant role in a possible future copyright reform.
What happened?
The consultation was extended by one month until the 5th of March just a few days before the initial deadline. According to the Commission, this happened because of a massive amount of requests from all sectors. Rumours started that an internal struggle between office and cabinet was the reason for this last-minute decision, [2] which could mean that the services (bureaucrats) want to push the dossier ahead, while the cabinet (political staff, to be exchanged this year) is hesitant. The problem here is that we can’t know whether the next cabinet will be at all keen on reforming copyright.
What comes next?
Commissioner Barnier announced during his speech at plenary session of the European Parliament in Strasbourg that a White Paper on copyright is to be finalised before summer. [3] According to other sources from DG MARKT the current consultation and a number of recently released [4] and to-be released studies will be the basis for this document. White Papers in the EU propose actions in specific policy areas.
On a side note, we have also asked DG MARKT to release the data sets of the consultation responses, which they’ve said they will try to do. [4a]
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-----------------#svensson
2. CJEU Rules Linking to Copyrighted Content Without Permission to be Legal
Why is this relevant?
It partly defines the legality of linked or even embedded content. The question posed to the court was whether or not one has to clear permission with the copyright holder before linking to their content online.
What happened?
The court’s ruling [5] was that linking to publicly accessible content does not constitute a new case of “communication to the public”, i.e. giving access. This means that no new permissions need to be granted for linking to materials online. The judgement does not regard the cases of linking to illegal content. It makes, however, no difference if the user is given the impression that the work is on the initial website (e.g. framing, embedding). Further reading: [6][7]
What comes next?
The decision could also have implication on Germany’s “ancillary copyright for press publishers” [8] with similar legal proposals currently under discussion in other EU countries. [9] as the court ruled in its fourth answer that Member States are not allowed to redefine the concept of “communication to the public” and hence give copyright holders wider protection than is defined in the InfoSoc Directive (2009/29/EC). [10]
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-----------------#NTD
3. Notice and Take Down Directive Seemingly Revived by Barnier
Why is this relevant?
Such a Directive would regulate how (allegedly) illegal content can be taken off the internet by request of (self-proclaimed) copyright holders.
What happened?
After a public consultation was held in 2012 [11] and in 2013 the whole project was given up by DG Internal Market after it seemed impossible to reconcile all the stakeholders in an acceptable way. [12] Back then nobody was able to find a compromise on the strong demand by civil society organisations to introduce a “counter notice”, giving content providers a chance to appeal the take down procedure. Beginning of February 2014, at the Strasbourg session of Parliament, Commissioner Barnier announced its revival. [13]
It is however unclear how this issue will be resolved, since the only relevant things the Commissioner said were that it will not be “strictly linked to copyright” and that it will be done with "full respect for fundamental rights"
What comes next?
We don’t yet know how to interpret Barnier’s statements and if we should interpret them widely or narrowly. It is also unclear if this is a seriously ment legislative attempt or just a political manoeuvre. Either way, Notice and Take Down is back on the table for now.
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-----------------#CRM
4. Collective Rights Management Directive Adopted
Why is this relevant?
Collective rights management societies are in many EU countries state condoned monopolies. Due to their exclusive and restrictive contracts with authors, it was impossible for musicians to release their works under permissive licenses.
What happened?
The European Parliament adopted during its plenary session beginning of February the Collective Rights Management Directive. [14] Luckily, the Directive forces collecting societies to allow their clients a more liberal licensing. Unluckily, this is only the case for non-commercial licenses. A coalition of civil society groups, including Creative Commons and Communia [15][16] had lobbied for free licenses, but had to compromise on the non-commercial component.
What comes next?
We (Wikimedia/Free Knowledge Advocacy Group) tried to point out the importance of truly free licenses, but started our efforts way too late and after the main compromises were struck. There are two teachings to take from this. Firstly, it is crucial to follow up legislative procedures as early as possible. Secondly, even the most like-minded partners don’t always have the same priorities.
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-----------------#IG #InfoSoc #foodporn
5. Shorts
Internet Governance
The European Commission released a statement calling for a move towards the internationalisation of the governance of the internet away from California-based ICANN. [17]
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Information Society Directive
A new (600 page) study on the InfoSoc Directive, commissioned by the Internal Market and Services Directorate General (DG MARKT), has been released. [18] According to a DG MARKT representative it will, along with other studies and the current copyright consultation, play a pivotal role in the coming White Paper on copyright. There is a Wikimedia initiative to collaboratively work through the paper. [19]
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Food Porn
French chefs have been active in the media recently complaining about “food porn”, i.e. taking pictures of food and posting them on social networks. One of the claims is that this constitutes an infringement of intellectual property rights. [20]
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-----------------[2]https://twitter.com/teirdes/status/429260615597576193
[3]https://twitter.com/MBarnierEU/status/430618637121359872
[4]http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf
[4a]https://twitter.com/EU_Markt/status/438329907836620800
[6]http://ipkitten.blogspot.co.uk/2014/02/early-thoughts-on-svensson.html
[8]https://en.wikipedia.org/wiki/Ancillary_copyright
[9]http://ipkitten.blogspot.co.uk/2014/02/an-ancillary-right-over-news-to-be-soon.html
[10]https://en.wikipedia.org/wiki/InfoSoc_Directive
[11]http://ec.europa.eu/internal_market/e-commerce/notice-and-action/index_en.htm
[12]http://www.iptegrity.com/index.php/ipred/893
[13]http://www.europarl.europa.eu/ep-live/en/plenary/video?debate=1391500981594
[15]http://creativecommons.org/weblog/entry/40959
[17]http://europa.eu/rapid/press-release_IP-14-142_en.htm
[18]http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf
[19]https://meta.wikimedia.org/wiki/EU_policy/Research/Study_on_InfoSoc
[20]http://ipkitten.blogspot.co.uk/2014/02/chefs-take-issue-with-food-porn-but.html
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