Everything is slowing down in Europe. The Council and the European Parliament are on summer break. And we got thousands of amendments to the Digital Services Act to plough through. Also, Malta introduced a public domain safeguard in their national copyright law (yey!).
Anna & Dimi
This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Digital Services Act
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Amendments, amendments, amendments: Not even accounting for the seven other committees providing input to the Digital Services Act, the lead Internal Market and Consumer Protection committee (IMCO) has seen a stunning, even compared to copyright reforms, 1313 pages of amendments filed. This will take the translation services a while, so we are working with original languages versions (mostly English, but also some French, Dutch and Italian). [1]
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On whose rules: We have been talking to policy makers about the distinction between rules set up by the service provider (e.g. the Wikimedia Foundation) and rules created and applied by the community (e.g. criteria for notability, the style guide). The DSA creates an obligation on service providers to enforce their terms of use in a coherent (exact wording still debated) manner. But we wouldn’t really want the legal team to be forced to interfere in a discussion on Albanian Wikipedia about the encyclopaedic style of an article. Amendment 731 (on page 445 if you are reading the document) by several Renew Europe heavyweights tries to solve exactly this by specifying “by the service provider” in the article. We will work with that.
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On “actual knowledge” of illegal content: Under the current regime service operators such as the Wikimedia Foundation enjoy some protection of liability for their users edits and uploads, but only if they act expeditiously when receiving “actual knowledge” of illegal content. Of course what “actual knowledge” means is a hot and heavy debate. Article 14.3 of the proposed regulation tried to solve it, but it made it sound like any notice we get gives rise to actual knowledge of illegal content. Which is not true, as most notices received are either imprecise or about legal content. The Greens/EFA group, the ID group (far right) and MEPs from the radical left propose to delete this paragraph (see AMs 1053-1055). Renew Europe MEPs make sure that “actual knowledge” is stricken off but introduce an “obligation to investigate” each notice in a timely manner (AM 1057). The EPP representatives leave the “actual knowledge” term unchanged, but specify that the notice must be written in a way that “diligent provider of hosting services is able to assess the illegality of the content in question” (AM 1060). The EPP and RE amendments do seem to take a step in the right direction, but fall short of the clarity we would need. We will work on the exact wording during the compromise seeking phase starting in September.
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Interesting carve-out ideas: Both the Greens/EFA and the Renew Europe groups have interesting ideas to exclude certain platforms from Chapter III (which is where notices, actual knowledge and obligation to enforce terms of service are. In amendment 894 Renew Europe suggests that not-for-profits, as well as micro, small and medium enterprises may apply to the European Commission for a waiver. The Greens/EFA propose to exclude micro enterprises and not-for-profit services with fewer than 100.000 monthly active users (AM 895). These are interesting suggestions that might remedy some worries but would also add to the complexity of an already very complex file. We will engage with both groups and are definitely interested to see if this can get traction in the committee compromises.
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Still, there are plenty of dangerous suggestions: Don’t be fooled by us writing mainly about proposals that make steps in the right direction. There are many, many terrible ideas in the batch. One such anti-highlight is AM 1058 by Italian EPP MEPs that suggest that practically any notice received “shall create an obligation on behalf of the notified provider of hosting services to remove or disable access to the notified information expeditiously.” Brrrr!
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Copyright Transposition
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We can’t believe the Commission did this: After waiting for the very, very last moment to issue its “transposition guidelines” on Article 17 and signalling at the beginning of the pandemic that it intends to be flexible as to deadline, the Commission has actually opened infringement procedures against all but four Member States (Germany, the Netherlands, Hungary and Malta) for not transposing the directive on time. The deadline was 7 June 2021. [2]
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AG Opinion on Article 17: Another good reason for Member States to wait a little longer is that the Court of Justice of the EU is to issue a verdict on the legality of Article 17. The Advocate-General’s opinion on the case indicated that the court might add some additional user safeguard requirements for countries to implement. [3]
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Malta done: Malta has become the fourth country to fully transpose the copyright reform. On a positive note the country has fully taken over the “public domain safeguard” we are pushing and has enshrined the right to “caricature, parody and pastiche” for online users on platforms. Thus both digital copies of public domain works and memes are safe to use online. [4]
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wikimedia.brussels
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In July we looked further into the dossiers that we work on and that had new developments before the summer recess:
DMA: IMCO targets GAFAM, forgets interoperability - Anna looks into the IMCO Rapporteur Andreas Schwab vision for the Digital Markets Act
Data Governance Act: Good Intentions, Bad Definitions - Dimi examines how DGA offers some good thinking while missing the mark on defining the elements of data ecosystem
An Introduction to WIPO, Part II: The fight for Users’ Rights in Geneva - in his ongoing series on the debates within World Intellectual Property Organisation, Justus explains how legacy creative industry interest clash with rights of users and their importance across the globe
Digital Principles by European Commission: too little, too late? - Anna read the eerie digital principles that the European Commissions imagined after it had released all the relevant proposals of legal acts, so that you don’t have to read them
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[1]https://edri.org/wp-content/uploads/2021/07/DSA-IMCO-amendments_08.07.21.pdf
[3]https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-07/cp210138en.pdf