Hi James,

A few answers to the questions.

1. As far as I'm aware, WMF has not gone after anyone for copyright infringement. I can't 100% rule out that it might have happened many years ago, but I don't think we ever have.

2. The content creator or creators have the best standing for a lawsuit because they're the copyright owners. As far as standing for WMF goes, it's a pretty complex question. I think there could be some theories of standing that might allow WMF to sue on behalf of one or more users to enforce a copyright, but I can't say for sure if any of them would hold up in court.

3. Not sure what circumstances have led to GPL or similar licenses coming up for litigation. It's equally possible that an individual content creator chose to sue or was sued in the context of the GPL, it just depends on the resources involved.

4. I don't see the connection between organizational standing and the value of a publisher's right. If there were some hypothetical really egregious case of Wikimedia project licenses being infringed and WMF wanted to sue, there's a possibility of funding a suit by a group of users even if we couldn't get associational standing. A separate publisher's right seems to me to potentially pit authors and publishers against each other and allow publishers to demand money even when the author is okay with dedicating their work or a use of it to the public.

Counter issues

1. Licensed content is unlikely to be affected since it is published with the license, it would seem to me that the same license would apply to the published copy. Though it's possible if the law were poorly worded, it could create a right outside of the existing regime and that wouldn't be covered by existing CC licenses and would require an update as a result.

I am much more worried about PD content, which could potentially become mired in confusion if specific publications of it were separately copyrighted even though the underlying content is free for the public.

2. My best guess at damages would be some calculation of lost profits. That is, the publisher would say "if i had the exclusive right to sell this, I would have made X dollars, but that didn't happen because the person I'm suing made all these copies without permission, so they should pay me X."

3. Text and data mining probably wouldn't be affected, or at least would be no more affected than they are under the existing copyright regime.

On Mon, Apr 18, 2016 at 4:31 PM, James Heald <j.heald@ucl.ac.uk> wrote:

Hi everyone,

I've been invited to represent Wikimedia at a round-table of interested parties with the UK Government on Wednesday, to offer thoughts on the current EU consultations on Freedom of Panorama, and on a proposed new EU "neighbouring right" for publishers (similar to the EU broadcasters' right).

Dimi has already put up some good thoughts on the FoP consultation questions,
https://meta.wikimedia.org/wiki/EU_policy/FoP_Consultation

but it would be useful to pull together talking points on the proposed Publishers' Right.

As Dimi flagged up in his report recently, the publishers' pitch for this can be found at
http://www.publishersright.eu/

while the questions in the EU consultation can be found at:

https://ec.europa.eu/eusurvey/runner/Consultation_Copyright?surveylanguage=EN
& click on the button "The role of publishers in the copyright value chain"

There is a clear attempted grab buried in the consultation, under question 4:
proposing that publishers should have the ability "to receive compensation for uses made under an exception"

which can be contrasted with the exceptions under 5(3) of the InfoSoc directive which do *not* require compensation.

But apart from this, it would be useful to discuss WM's take on the issues that the Publishers' Right is being canvassed for to supposedly address, from the standpoint of WMF as a publisher, that reserves its recourse to copyright to defend the terms on which our material is made available.

Questions:

* Is this something (going after some entity for copyright infringement) that we have in fact ever done ?

(Either for text or images)

* Would WMF have standing to initiate such a suit, or (if WMF only has a nonexclusive license to the material on WP pages) would such a suit have to be initiated by the content creator ?

* When eg the GPL has been defended in Europe, is that typically only possible because there has been a copyright transfer agreement required to the project from contributors ?

* Is there therefore at least some case for what the publishers are asking for ?

Counter-issues:

* Do such neighbouring rights threaten to upset copyleft ecosystems, by locking up PD content and/or copyleft content as part of a publication protected as a whole ?

* What sort of damages would publishers be able to seek? What 'value' would these be computed on, outwith the value of the copyrights?

* Implications for text & data mining, summarisation, etc. "Right to read is the right to mine".

More thoughts ?

-- James.

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Jacob Rogers

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