tl;dr

The European Commission wants a fully harmonised copyright. One day. For now, they are planning two reform packages - in December and June 2016. Simultaneously there is more and more pressure on regulating a new enforcement and liability regime online.

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This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Copyright Reform Leak: The European Commission “leaked” a draft Communication [1] that will announce two copyright reform packages. It makes us expect three things:

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1) Small reform package in December: Before year’s end we’ll hear an announcement that the Marrakech Treaty [2] should be transposed as a compulsory & harmonised copyright exception for people with print disabilities. We’re expecting the pomme de discorde to be a “commercial availability” restriction proposed by publishers. This would mean that in order to use a work under this new exception one would first have to prove that the work is not available.

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2) June 2016 a larger reform will be proposed. The Commission still doesn’t know what will be in it (we’re hearing that the political cabinets have not reached an agreement yet, while the services are ready with draft texts). Apparently six issues have survived so far: “out-of-commerce”, “remote consultation”, “preservation”, “teaching illustrations”, “panorama” and “text and data mining”. The question is what the corresponding exceptions and limitation might look like. There are two ways it can go - fully harmonised exceptions or minimum standards. In the first case, having a restrictive exception (e.g. for non-commercial uses only) would be the main risk. In the second case, an unambitious minimum might mean little change in reality.

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3) Enforcement: Little surprisingly when dealing with copyright reform, calls for stricter and stronger online enforcement of IP rights is never far off. Multiple independent sources within the Commission have confirmed that they plan to propose an enforcement reform along with the copyright reform package. Again, there are two possibilities at hand: the e-Commerce Directive [3] and IPRED [4]. The e-Commerce Directive currently grants ISPs “liability breaks” that allow them to safely handle large amounts of traffic and content without taking up huge legal risks. IPRED deals with enforcing IP rights. If a overly strict liability for ISPs and online platforms is introduced, this might pose serious problems for anyone hosting and harbouring large amounts of user-generated content. Our analysis is that an IPRED reform as well as notice & action prodecures [5][6] are likely. Chances are that the e-Commerce Directive will remain as is.

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Satellite and Cable Directive: In an interesting last-minute manoeuvre the Commission is now openly hinting (through a leak and a now closed consultation [7]) at the possibility make force regulate cross-border access to content that if the industry doesn’t manage. They are looking into doing so by extending the SatCab Directive [8] to the online environment. It came into force in 1995 and made it legally possible for a TV channel to broadcast its signal across the Union without having to clear the rights for each country, as long as it does not actively market its product to other national markets. Applying the same principle to the internet might be legally challenging, but it is a powerful threat to collecting societies and rightsholders who fight hard to keep the territoriality of copyright.

Further reading: http://ipkitten.blogspot.be/2015/08/does-eu-want-to-get-rid-of-geoblocking.html

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Platforms Liability Debate: As there is an open attempt to make online platforms more liable [9][10][11] for content they host and publish and there is an ongoing consultation on platforms [12][13], the debate is picking up pace in Brussels. There was a discussion in the Internal Market and Consumer Protection Committee of the EP (IMCO) on the 16th. Vicky Ford (ECR) and Kaja Kallas (ALDE) read statements that more or less agreed on the importance of platforms and the need to make sure they can continue to function while also pointing to the e-Commerce Directive. It being the legislation that grants “safe harbour” status to ISPs, this is the line most online platforms are happy to hear. Gerard de Graaf, Director of the Digital Economy Unit in DG Connect reaffirmed that the Commission is trying to come up with a single definition for digital platforms while admitting that they are struggling to square the circle between common traits and differences. He emphasised that they are analysing the current role of platforms focusing on issues like hate speech, application of copyright rules and notice and action procedures. A representative of the German Permanent Representation to the EU stated that his government feels close to the principles of the e-Commerce Directive.

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Paris Attacks, Privacy & Data Protection: There have been both European Parliament debates [14] and a Justice and Home Affairs Council meeting [15] on the question how to proceed after the latest terrorist attacks in France. Strong calls to rapidly conclude the General Data Protection Directive [16] before the end of the year, to approve the also stalled Passenger Name Record rules [17] and to exchange more security-related information between Member States were made. On the other hand, warning were shared that enough information is being gathered already and that the question is more of acting upon it rather than throwing more hay to the haystack. The debate is gravitating around privacy vs. more data collectionand is likely to go on for a while.

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Big Fat Brussels Meeting - Episode 3: The third annual EU Policy working group meeting took place in November. Two outputs are that the (lack of) interoperability (of systems and file formats) was identified as a barrier to access to knowledge and that safeguarding the public domain by not allowing new copyright on faithful digitisations is both a priority and seems politically feasible.

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Quick messages:

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Empowering Women Online: The European Parliament Committee on Women’s Rights and Gender Equality (FEMM) has requested an in-depth analysis on opportunities, risks and challenges for women online, which now has been released. [19] It lists and briefly describes the existing international and EU-level initiatives in this area.

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EPP Group on Copyright: The European Parliament’s largest group has released their position on copyright reform. [20] Their baseline is that no reform is needed and licenses can solve everything. That same month the second largest group S&D admitted that they were split on the subject (as stated by their MEPs during an EP event [21]).

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OER and Copyright Reform for Education: Communia and Polish MEP Michal Boni hosted a parliamentary breakfast on OER and copyright exceptions trying to weave the “user rights” angle into the debate. [21]

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[1]https://drive.google.com/file/d/0B6d07lh0nNGNaXFzUFBPaE0tY0E/view

[2]http://www.wipo.int/treaties/en/ip/marrakesh/

[3]https://en.wikipedia.org/wiki/Electronic_Commerce_Directive

[4]https://en.wikipedia.org/wiki/Enforcement_Directive

[5]https://en.wikipedia.org/wiki/Notice_and_take_down

[6][Old text] http://www.iptegrity.com/index.php/ipred/723-e-commerce-directive-eu-commission-gives-notice-of-action

[7]https://ec.europa.eu/digital-agenda/en/news/consultation-review-eu-satellite-and-cable-directive

[8]https://en.wikipedia.org/wiki/Satellite_and_Cable_Directive

[9]http://www.euractiv.com/sections/digital/meps-want-make-internet-companies-liable-radical-content-online-319843

[10]http://www.wsj.com/articles/eu-considers-major-investigation-into-role-of-internet-platforms-1428074325

[11]http://www.project-disco.org/competition/070915-the-digital-single-market-and-a-duty-of-care-preserving-the-transatlantic-legal-framework-for-a-thriving-internet/#.Vl2x6np2Pl8