tl;dr
The EU copyright reform ends the way it started: absurdly. We need to look at national transpositions now.
This and previous reports on Meta: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Copyright
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The plenary vote on the results of the trilogue negotiations [1] happened this week in Strasbourg. The vote on whether to accept amendment proposals to the text was rejected by a very slim majority of 5 (312-317). The package was then adopted with 348 to 274 votes. Roll call votes are points 22. and 23 in the official plenary voting document: [2].
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Confusion?
It probably fits the absurdity of the entire reform process and, more specifically, the surrounding debate that now 18 MEPs have changed their votes post factum (bottom of page 51 in the same document) claiming they pressed the wrong button.[3] With the corrected records there is actually a majority for amendments. These changes, however, are only for the record and don’t change the official result.
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Voting Analysis by Country
Thanks to WMCZ we have a breakdown of what percentage of MEPs supported the reform by country: https://etherpad.wikimedia.org/p/proc
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Contents
There will be a new liability regime for for-profit online platforms allowing users to upload content. They will have to make “best efforts” to get licenses from any and all right holders while also having to make “in accordance with high industry standards [...] best efforts to ensure unavailability” of specific content. Else, they will be directly liable for user uploaded content. [Article 17] Weirdly, the platform that seems to already comply with these new rules is YouTube.
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There is a new related right for press publications not older than two years. One will need to get a license to show parts of them, except for “very short extracts”. Either Member States or the courts will have to define what a very short extract is. Hyperlinks are explicitly allowed.
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On the positive side we have received a comprehensive text and data mining exception establishing the “right to read is right to mine” as a default, a public domain safeguard that will solve issues such as the “Reiss Engelhorn Case”, and museums will be allowed to digitise and show “out-of-commerce” works on their websites.
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Poisonous public debate
Articles 11 and 13 (old numbering) are looking backwards trying to protect already established dissemination industries. We believe they will hurt the opportunities of knowledge sharing provided by the internet. It is, of course, also possible that they won’t be as consequential as we and many others fear. But what is extremely worrying is the way this debate was lead. There are always people who can’t behave, on both sides. But here any opposition to these articles was, by official right holder representatives, established politicians and mainstream media painted as “fake news” and the criticism was denied legitimacy. One of Germany’s leading newspaper cover page welcomed the vote by saying that “democracy had won” and again questioning the legitimacy of the critics.[4] We, as a prominent opponent of the reform, have been and will continue to be on the receiving end of this. We don’t need to answer to all the trolls out there, but leaving such accusations of “oppositions controlled & paid by corporations” unchallenged is also a threat.
---Next steps
Member States will have 24 months to transpose this Directive into national law from the date of publication in the Official Journal of the EU (OJ). We are going to analyse in detail the discretion it allows Member States and the opportunities and risks this entails. We will then provide a document suite and work with local communities to ensure we provide input into the reform process nationally. One simple example of such flexibility would be that the new Directive provides for a mandatory parody exception within Article 13 (so only within for-profit online platforms). Not all Member States have a general parody exception, as in the Information Society Directive it is only an optional one. This means that the countries currently not having one have the choice to create a broad or a narrow one.
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TERREG
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The debate over a possible compromise at LIBE, the leading committee on the terrorist content dossier, is quite intense with new versions coming out sometimes twice a week. In an unexpected twist of events, the Compromise from March 28 envisions deletion of dangerous referrals and turning proactive measures into specific measures that could be, for example, regular reporting or increasing human oversight. These changes mitigate the most serious flaws of the Commission’s proposal. The vote is planned on April 2nd so given the intensity of exchange at LIBE it remains to be seen if these developments will be sustained. Fingers crossed! We need good news after the copyright vote flop, dear MEPs!
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Elections
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The European Parliament elections are on the 25-26 May. We are expecting a huge tunover and more than half of the new MEPs to be newly elected. This means more work, but also more opportunities. Reaching out to promising candidates ahead of election is usually a good way to build a relationship.
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BIG FAT BRUSSELS MEETING
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Building on the elections, this year’s Big Fat Brussels Meeting will be on 1-2 June, the weekend after. We will do “post mortem” analysis of our campaign (what worked well, what did we miss, what should have been handled differently), will be setting up our transposition work and will be making plans of how to reach out the newly elected MEPs. If you want to attend, please signal your interest on the provisional Meta-Wiki page: [5]
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Absurdity of the Month
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We should not forget our sense of humour. I am therefore sharing with you a piece of absurd copyright news from my home country, Bulgaria. Press release is in Bulgarian, [6] so I will decipher. Last year German photographer Nico Trinkhaus was in Sofia and put the images he took up on his website. [7] These were then used, without getting a license, by several Bulgarian travel agencies. The photographer successfully sued them in the Sofia City Court (first instance). The rulings were then, little surprisingly, upheld by the Court of Appeal. Instead of admitting fault, the travel agencies got themselves new lawyers, send around a press release and organised a press conference interpreting the Bulgarian copyright act in a way that lets them claim that photos taken in an urban environment are NOT (sic!) subject to copyright. They go on saying that they will send complaints the Bulgarian Ombudsperson and European Court of Human Rights in Strasbourg. You might, of course, ask yourselves now what the Ombudsperson and the ECHR have to do with a pretty straightforward copyright violation. The answer is, of course, nothing. But these travel agencies are real crusaders for an extreme version of Freedom of Panorama. And we have a copyright reform coming up in all EU countries and plan to suggest FoP in many. I will surely keep this example in by back pocket if someone ever calls us extremist again.
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[5]https://meta.wikimedia.org/wiki/EU_policy/Big_Fat_Brussels_Meeting_VI