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

===

---

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.

===

---

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-for-scientific-purposes/

[2]http://www.leru.org/index.php/public/news/the-right-to-read-is-the-right-to-mine/

[3]http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2016/0593/COM_COM(2016)0593_EN.pdf

[4]http://libereurope.eu/text-data-mining/

[5]http://copyright4creativity.eu/about-us/

[6]http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2016/0280(COD)&l=en

[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-beginning-of-an-absurd-copyright-struggle-in-ar

[11]https://commons.wikimedia.org/wiki/File:FoP_AM.pdf