tl;dr
The hot phase of the EU copyright reform is getting closer. We are
currently talking to the decisive MEPs on a number of issues: text and data
mining, Freedom of Panorama, safeguarding the public domain, ancillary
copyright, upload filtering, linking and databases.
NB: Sorry this month's report is so very long :)
https://etherpad.wikimedia.org/p/monitoringreport
===
Copyright reform - Content
---
Text and data mining: No matter whether we are talking about population or
data or average daily temperatures, we constantly access and re-use data on
our projects and quite often use automated tools to do so. Publishers have
been claiming that mining the open internet "in an uncontrolled way" “risks
leading to low grade results” and disregards “important data protection
issues” [1]. Which is why they have been claiming that automatically
analysing data on documents you have access to is not legal. In parallel
they are trying to sell separate mining licenses. On the other hand,
research organisations and open movements such as Open Knowledge have
maintained that the “right to read is the right to mine” [2]. The European
Commission wanted to solve this unclarity and proposed an exception on
“text and data mining” in the Copyright in the Digital Single Market reform
(Article 3) [3]. However, the envisioned exception is meant to apply only
to research organisations, leaving start-ups, data journalists and
Wikimedia projects behind.
We are working under the auspices of LIBER [4] in a coordinated effort to
fix this by removing the limited circle of beneficiaries of this
exception.
---
Ancillary copyright: The main problem with the so-called “Press Publishers
Right” (Article 11) in the reform proposal is, apart from the fact that it
won’t work, that compared to its German ancestor it has been inflated to a
size way beyond reasonable. The European version comes with a protection
span of 20 years (as opposed to only one year in Germany), covers all press
publications (as opposed to only news publications) and doesn’t have any
limitations whatsoever (no permission to use snippets, for instance). This
will not only lead to a very messy situation once every EU Member States
introduces its national version of this right, but also has the potential
to make the free use links that contain the article’s name or annotated
bibliographies legally questionable.
We are raising these two issues at debates around Brussels, giving specific
examples and otherwise following the lead of partners such as C4C on this
[5].
---
Upload filtering: The European Commission wants sites that host
user-uploaded content to install content recognition technologies that
monitor all uploads for copyright infringements as indicated by
rightsholders, which whom such sites are asked to sign agreements (Article
13). There are no exceptions written into the proposal that would exclude
sites using legal content (i.e. public domain works, uses falling under an
exception or freely licensed content). Blanket monitoring and filtering
technology is practically a censorship infrastructure with a paint job.
Alas, the music industry is adamant. They want this badly and have been
refusing to step down.
In the meanwhile we have gotten the European Commission (Maria Martin-Prat,
until very recently Head of Unit Copyright) to agree with us publicly that
Wikipedia would fall under the definition of a "site hosting user-uploaded
content", which they were they were denying before. The Commission also
publicly admitted that this should be remedied by the European Parliament.
We are currently sharing our worries with the most relevant decision-makers
at this stage [6] and working, among others, with EDRi [7] to defuse that
part of the text.
---
Safeguard the Public Domain: Talking only about things that are looming
above us is tiresome. This is why we have decided to try even harder and
improve copyright in a way that would allow for more free knowledge to be
shared, especially online. One of our positive goals is to enshrine a
“public domain safeguard” in the European copyright framework. This would
mean that once works are in the public domain, faithful copies thereof get
no new protections. You have heard of the Reiss-Engelhorn-Museen case,
right? [8] Wikimedia has the lead on this in Brussels and is currently
talking to relevant decision-makers in the Parliament and stakeholder
allies to find an acceptable wording [9].
---
Freedom of Panorama: Despite the European Commission calling it “relevant”
to the digital world and recommending Member States to introduce it in the
press release that went out with the proposed copyright reform, they must
have forgotten to include it. We are now leading the charge, together with
the EGDF [10] and Yelp! to make sure it finds its way back into the text
[11].
---
Database Rights: Little known fact is that apart from reforming the
Copyright Directive, the European Commission is also proposing changes to
the Database Directive. That is this a somewhat esoteric piece of European
legislation establishing a sui generis right on databases, which requires
Wikidata to be much more stringent in its content licensing requirements.
The European Parliament called for the abolishing of the a little more than
a year ago. The Commission might tackle a reform of the Directive later
this year, however, we are now trying to use the current window of
opportunity and simply “patch” the sui generis right by turning it into a
registration right [12].
---
Safeguarding the link: We are working with Open Media [13] to try to
enshrine in law that linking to published resource on the internet clearly
remains legal. This is necessary due to the amount of partially incoherent
jurisprudence piling up over the years.
===
===
Copyright Reform - Phases
---
Currently we are making everything possible to talk to the most relevant
MEPs - the rapporteur and shadows in the Legal Affairs Committe,
opinion-makers among the MEPs and the rapporteurs of opinions in the
Internal Market, Industry & Trade and Culture committees [3]. The moment is
decisive for the opinions, as they are in midst of writing and partially
even finishing up their first drafts, which are expected to be send to
translation in one to two weeks. The opinions should then be voted in
February. After that the rapporteur Ms. Comodini (MT EPP) will present her
draft report in the beginning of March, taking these opinions into
consideration. We then have until the end of March to see what needs to be
amended to Ms. Comodini's version and formally table such amendments. The
next phase will be all about influencing compromises between the rapporteur
and her shadows. Whatever they do not find a compromise on will be voted in
our out of the text by the Legal Affairs committe, possibly at the end of
June.
===
===
ePrivacy Regulation
---
The European Commission presented its ePrivacy Regulation [14]. This will
replace the so-called “Cookie Monster Directive” [15] that had us in Europe
clicking away cookies banners for years. The EU will try to remedy that
now. First good news is that cookies will be split into two categories -
session cookies (e.g. log-in, language, shopping basket) and third-party
cookies (e.g. advertising trackers).
An interesting aspect in the new logic is that browsers are supposed to
play the role of gatekeepers, meaning that once you install a new browser,
it will have to ask you about your desired privacy settings. They will be
legally required to give you nuanced, real options. For cookies the choices
will be at least: no cookies at all, only session cookies, cookies from
certain sites, all cookies.
The remainder of the Regulation deals with advertising messages (spam not
OK, companies not allowed to pass on email databases) and caller ID
blocking (must be allowed). New is also that the data protection rules
shall apply to almost all electronic communications services, including
messengers like Facebook Messenger, WhatsApp and Viber. Excluded are
application that are not usable without another main service (e.g. in-game
chat windows).
Wikimedia has no meaningful issues with the proposed Regulation and our job
will be mostly to track its progress through the European Parliament and
the Council while ensuring that no harmful wordings are included and the
best possible privacy standards for users is achieved.
===
===
Data Economy Consultation
---
In 2017 the European Commission intends to review the legal framework for
data in the EU. This will very likely include a revamp of the Database
Directive but might go even further. In its communication on the
data-driven economy the Commission is even talking of an ancillary
copyright for raw data, which would be disastrous for most data projects
[16]. There is a consultation on data economy [17] that the Free Knowledge
Advocacy Group EU will answer [18] in order to hammer across the points
that a new neighbouring right would be a terrible, terrible thing and that
the sui generis database right needs to be neutralised. You can join in
helping out with the answers. Additionally, we are expecting real-life
stakeholder dialogue around or after summer.
===
===
Big Fat Brussels Meeting 4
---
SAVE THE DATE: 22 & 23 April. More details to follow, but you should expect
us to take a deep dive into the Council and come out with a specific
engagement strategy for several Member States!
===
===
[1]
http://epceurope.eu/frequently-asked-questions-about-text-and-data-mining-f…
[2]
http://www.leru.org/index.php/public/news/the-right-to-read-is-the-right-to…
[3]
http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_e…
[4]http://libereurope.eu/text-data-mining/
[5]http://copyright4creativity.eu/about-us/
[6]
http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2016/…
[
7]https://edri.org/enditorial-two-copywrongs-make-definitely-not-copyright/
[
8]https://blog.wikimedia.org/2015/11/23/lawsuit-public-domain-art/
[
9]https://commons.wikimedia.org/wiki/File:Safeguarding_the_PD_AM.pdf
[10]
http://www.gamesindustry.biz/articles/2016-10-20-pok-mon-go-is-just-the-beg…
[
11]https://commons.wikimedia.org/wiki/File:FoP_AM.pdf
[
12]https://commons.wikimedia.org/wiki/File:Database_rights_AM.pdf
[
13]https://openmedia.org/
[14]
https://ec.europa.eu/digital-single-market/en/proposal-eprivacy-regulation
[
15]http://www.infobo.com/eu-cookie-monster-directive-law/
[16]
https://ec.europa.eu/digital-single-market/towards-thriving-data-driven-eco…
[17]
https://ec.europa.eu/digital-single-market/en/news/public-consultation-buil…
[
18]https://meta.wikimedia.org/wiki/EU_policy/Data_Economy_Consultation