tl;dr
The Council of the EU failed to reach a decision on copyright reform last Friday, meaning bickering between Member States will continue well into May. Meanwhile the Parliament is making timid progress towards a committee vote still scheduled on 21 June.
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Copyright Reform---
The Council: COREPER I is a body made up of the deputy heads of missions of EU Member States. [1] A legislative file is usually put forward to this body when the attachés (technical experts) have reached a compromise and majority support seems ensured. The Bulgarian Presidency believed it had such a compromise capable to secure a majority and referred it to COREPER I. [2] There, it was discussed last Friday only to the rejected. Regardless of the positive spin the Bulgarian Presidency is trying put on it [3], this is a pretty embarrassing situation for them.
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So what? Had the proposal been accepted, the negotiations in Council between the Member States would have come to a halt waiting for the Parliament position. The compromise proposal put forward by Bulgaria was not good, to say the least. It essentially does prescribe ex-ante take-downs (so potential deletions of content before it even appears on sites) of user uploaded content that is deemed as infringing by rightsholders. And while there is a carve-out for an “online encyclopedia” (Guess who they mean!), the situation with Wikimedia Commons and open source code sharing platforms remained very unclear. The situation buys us some time to motivate some Member States, most importantly Germany, to update their position. Belgium and the Netherlands are the two countries still vocally standing up for user rights and facing off a large group of states demanding upload filters, which is lead by France. Big guns would be needed to stop them.
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European Parliament: Some bits of the current text in the European Parliament look better than in the Council, but we still cannot be contempt with it. It seems that the the rapporteur Axel Voss is prioritising Article 11 (ancillary copyright for press publishers) to Article 13 (upload filters). We are especially worried the potential for an ex-ante filtering provision, as in the Council. Other than that, the educational exception seems to be a done deal, while safeguarding the public domain, freedom of panorama, text and data mining and out-of-commerce works are still question marks.
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Next steps: This week the EP is kicking off a new round of discussions with a technical meeting (experts and legal advisors working on the Legal Affairs Committee) on Wednesday. We are bracing for one to two negotiation rounds each week and daily tactical manoeuvring on all sides until at least the end of June.
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Revision of the Public Sector Information Directive proposed
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First run through: The European Commission proposed a revision of the PSI Directive last week. [4] The main goal is to broaden the current text by opening up transportation data (including private companies that run concession on behalf of public bodies), scientific data and to limit the situations in which public bodies can demand payment for giving access to data, documents and information. Skimming the proposal we see some very positive changes, albeit we would have wished for a more ambitious text.
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Particularly interesting: Article 5 (4) says “Public sector bodies and public undertakings shall make dynamic data available for re-use immediately after collection, via suitable Application Programming Interfaces (APIs).”, which is a great opportunity and of particular interest to data applications. The issue with the Directive is the still many carve-outs and exceptions to the rule. But this is one of the rare times where we are starting with a “rather OK” Commission proposal and have the chance to get something positive in the end without risking to worsen our situation.
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French Jurisprudence: Chambord vs. Kronenbourg
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Beer vs. castle: Chambord is a 16 century French castle owned by the public. Kronenbourg is a popular French beer brand. The brewery used an image of the former in an advertising campaign. The authority maintaining the castle claimed that this was unauthorised use of images of the castle and demanded indemnities. The court disagreed. [5] This is a ruling we appreciate, as we are of the opinion that public domain works should be free for re-use by all.
What is allowed in France? The legal situation in France remains complicated. In 2016 a French law established a new image right on national cultural heritage sites. [6] Wikimédia France and La Quadrature du Net petitioned the constitutional court claiming that this image right unlawfully restricts the public domain. [7] While this was rejected [8], it seems that the new decision in the Chambord case actually goes in the direction of the claim made by WMFR and LQDN.
[1]https://en.wikipedia.org/
wiki/Committee_of_Permanent_ Representatives [2]https://www.parlament.gv.
at/PAKT/EU/XXVI/EU/01/86/EU_ 18668/imfname_10803001.pdf [3]https://twitter.com/
zlateea/status/ 989838220740517888 [7]https://www.laquadrature.
net/fr/Wikimedia-La- Quadrature-domaine-public- Conseil-constitutionnel%20
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