[Publicpolicy] EU Policy Monitoring Report - October 2021

The key parliamentary committee votes on acts regulating platforms, DSA and DMA, were postponed from their 8 November dates. The new voting date could be as early as the end of November or as late as February next year. In the meanwhile, the Council seemingly dropped a suggestion to oblige platforms, including Wikimedia’s, to react to take down notices within 24 hours. Anna & Dimi This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor ====== Digital Services Act (DSA) --- On of the hotly debated suggestions of the past month was the Slovenian Presidency’s proposal to introduce “24 hour removal deadlines'' for Very Large Online Platforms (any platform that has more than 45 million users in the EU) when they receive a notice about illegal content from “trusted flaggers” (a vaguely defined category that would include rights holders organisations). This would, of course,force the WMF legal team to be much more active in deletion decisions. We reached out to most Member States’ representatives in the negotiations explaining the tension this would cause between our community moderation system and the Foundation as a service provider. In fact, this suggestion was criticised by many countries and stakeholders, for various reasons. It looks like it has been dropped for now. See the Slovenian Presidency Proposal under Article 24a in the document: [1] --- One of the welcome codifications of the DSA is a comprehensive notice and action framework: rules of how a user can file a notice about content they think is illegal to the platform and how the platform should react. A well written N&A system provides clear and balanced rules and ensures legal certainty for diligent actors (which we believe we are!). We had some remarks to the original commission proposal, which made it sound like every notice we get is a proof of illegal content (see Article 14.3 in [2]). This has since been fixed in the Council (e.g. first Slovenian Presidency’s proposals here: [3]) and in most opinion giving committees. We have no up-to-date text on this article from the lead Internal Market and Consumer Protection committee (IMCO), but birds tell us things are moving in a positive direction. Still, we must remain vigilant. --- One of the worst changes that we could imagine would be ex-ante stay-down obligations. This would basically take us back to the copyright reform’s upload filter territory, a place where no one wants to be. Did I say no one? Well, one large country in the West of Europe and its MEPs are actually trying to sneak in similar provisions here and there. An example of this can be seen in the Legal Affairs committee’s opinion on the file, penned by Geoffroy Didier (EPP FR). [4] --- Two exciting points of argument are on tracking & advertising and media regulation. The lead rapporteur Christel Schaldemose (S&D DK) had proposed to exempt media content from the terms of service rules of platforms, meaning that platforms wouldn’t be allowed to block content by media organisations. It looks like this did not find a majority in the negotiations and we are expecting her to drop it. [5] At the same time there is a serious campaign to prohibit targeted advertising that might sound outlandish, but a report that calls for such a move actually had a majority in the European Parliament in October 2020 [6] and the European Data Protection Supervisor (EDPS) also supports such a move. [7] Naturally, the advertising industry is not amused [8], neither are Facebook, Google or Apple. Proponents claim that contextual advertising can be similarly effective without the data protection nightmare caused by tracking necessary for targeted ads. Some of the compromises in the air include opt-in or opt-out mechanisms or limiting the ban to specific advertising (e.g. political campaigns). Exciting months ahead on this front. --- A hot of the press compromise proposal in the IMCO committee proposes that “very large online platforms shall make the core functionalities of their services interoperable to enable cross-platform exchange of information with third parties.” [9] Now this unexpected, exciting and worthy of being supported. ====== Digital Markets Act (DMA) --- The Internal Market Committee’s Rapporteur Schwab showed new compromise amendments and for once we can report things are moving in the right direction, in the complicated dance of two steps forward and one step pack. It seems that DMA will include interoperability enabling users to connect with each other through various platforms, and that possibility is now extended to social media (score and score!). At the same time, the Rapporteur wants the interconnection to be offered ensuring the same quality as available or used by the gatekeeper for their own various services (think posting on Instagram and Facebook at the same time). It makes sense, but the risk is that if a gatekeeper wants to avoid interconnecting with other services, it may decide it is more beneficial to withdraw interconnection among its own services to effectively fall out of the scope of this provision. Instead, we recommended MEPs to simply focus on offering the interconnection guaranteeing a high level of security and personal data protection. ====== Artificial Intelligence Act --- It is still unclear which committee in the European Parliament will be allowed to amend which parts of the AI Act. There is a fight between IMCO, which also leads on DSA and DMA, and the Legal Affairs committee (JURI). The question is whether IMCO alone will lead or it will have to split competence with JURI. In IMCO the rapporteur on the file will be Brando Benifei (S&D IT). [10] The Commission proposal is an extraordinarily messy document laying out many well-sounding principles but full of gaps, exceptions and exceptions to exceptions. We do not expect actual work to start before December on this file, but we have agreed in principle with the FSFE to work together on amendments covering open source, open datasets (wherever possible) and some sort of “feature injection” a.k.a. public testing opportunities for public sector applications at least. [11] ====== Data Governance Act in Trilogue --- The negotiations between the European Parliament and the Council on the Data Governance Act have begun. [12] It is called a trilogue, because the European Commission also sits in on the meetings. The DGA aims to open up more public sector data for re-use (including protected data). The risky part of this is when personal data is concerned. The real upside is that the EU is seriously considering a de facto repeal of the sui generis database right for the public sector (i.e. they won’t be allowed to use it). On the other side, the DGA also wants to create a sort of data clearinghouses to help companies create large data pools. This normally shouldn’t be of concern to us, but in some of the versions of the text the definition of “data sharing service providers” could have actually covered Wikidata and Wikipedia, which would come with new obligations not intended for us. This seems solved now, but we will stay on top of the proceedings. ====== National Copyright Reforms --- Croatia: The transposition law entered into force on 22 October. [13] We struggle somewhat with the analysis in that language. Feel free to help us out ;) --- France: The transposition here is messy and fragmented. We still don’t know when the French legislator plans to transpose the exceptions. But the French Culture Ministry wants to grant itself the power to say which platform provides access to “large amounts of copyrighted works”, and thus need to negotiate licensing agreements. ---- Italy: The Italian Parliament’s Senate and Chamber published opinions on the government draft. The government might take these into account or not, as the transposition in Italy largely bypasses the parliamentary process by means of a delegation law. [14] --- Finland: The Finnish Government's transposition proposal is to be sent to parliament before the end of the year. There currently is a public consultation, which OKFI and WMFI are working on. [15] The new Finish educational exception for online uses of works during teaching seems to be immediate and not tied to extended collective licensing. On the other hand, uses of digitisations of public domain works seem to be tied to extended collective licensing, which we find contradictory. --- Spain: Spain is also trying to avoid a proper parliamentary procedure by intending to use a Royal Decree urgency procedure. Under this procedure the parliament would have a month to accept or reject the bill, but not make changes to it. Wikimedia España took a position on this in a press release. [16] --- Austria: Epicenter.works, GFF, Wikimedia Österreich, Communia, Creative Commons Austria and the Cultural Broadcasting Archive jointly submitted a position to the public consultation of the Austrian government's transposition proposal. [17] One of the points of criticism is that the government proposes to implement the newly obligatory caricature, pastiche and parody exceptions (the “meme exceptions”) only for uses on online sharing platforms. We recommend a universal exceptions valid both online and offline. --- Portugal: The government also wanted to pass the reform by government decree under extraordinary powers, but has now decided to shift back to regular parliamentary procedure. As there will be snap elections in Portugal, the process will further be delayed. Wikimedia Portugal, D3 and Communia are collaborating. Portugal is so far proposing the introduction of a full parody & caricature exception. --- Bulgaria: The government proposed its transposition law and ran a public consultation. Communia member Digital Republic was part of the drafting working group of the Ministry of Culture and also submitted a response to the public consultation. [18] On the upside, the government proposes a proper public domain safeguard and general new exceptions for parody, pastiche and caricature. On the flipside, it limits the current broad educational exceptions by melting it with the new, second, educational exception mandated by the directive. --- Luxembourg: The State Council issued its opinion on the government transposition proposal, making mostly technical remarks. The bill still needs to pass parliament. We are working with Chaos Computer Club Luxembourg and Wikimedia Luxembourg on this. [19] ====== wikimedia.brussels --- Our October blog posts for you: - DMA in IMCO: Shadows present ideas, Rapporteur shows a compromise <https://wikimedia.brussels/dma-in-imco-shadows-present-ideas-rapporteur-shows-a-compromise/> - Anna read the amendments to DMA so that you don’t have to and mapped out where the Shadow Rapporteurs stand on the provisions expanding users’ choice and autonomy over their data. - You Shall Not Pass! Wikimedia Foundation Denied Observer Status At WIPO <https://wikimedia.brussels/you-shall-not-pass-wikimedia-foundation-denied-observer-status-at-wipo/> - Justus walks you through the recent drama at WIPO, where China vetoed civil society participation in the discussion. - Meet “ClueBot NG”, an AI Tool to tackle Wikipedia vandalism <https://wikimedia.brussels/meet-cluebot-ng-an-anti-vandal-ai-bot-that-tries-to-detect-and-revert-vandalism/> - in his miniseries on AI at Wikimedia Dimi lets us in on the opportunities and pitfalls AI poses for making the content better ====== END ====== [01] https://drive.google.com/file/d/1pNcTsfAmcGWsUGsTwnRzmU_QXWKKmYNZ/view?usp=… [02] https://eur-lex.europa.eu/legal-content/en/TXT/?uri=COM%3A2020%3A825%3AFIN [03] https://drive.google.com/file/d/1FkmKRTTXVbjd6wNxifnoqn8tbYt3C6Jx/view?usp=… [04]https://www.europarl.europa.eu/doceo/document/JURI-AD-694960_EN.pdf [05] https://www.politico.eu/article/digital-services-act-europe-france-press-pu… [06] https://techcrunch.com/2020/10/21/eu-parliament-backs-tighter-rules-on-beha… [07] https://techcrunch.com/2021/02/10/eus-top-privacy-regulator-urges-ban-on-su… [08] https://iabeurope.eu/all-news/iab-europe-news/new-report-finds-ban-on-targe… [09] https://drive.google.com/file/d/1nodLV85-S1vPTd9olE02rJf01EIuQMcB/view?usp=… [10] https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?refere… [11] https://drive.google.com/file/d/1nrmR9PIw2Y_A6Dmic_2NxP_smBWA9XLQ/view?usp=… [12] https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=e… [13]https://narodne-novine.nn.hr/clanci/sluzbeni/2021_10_111_1941.html [14] https://www.senato.it/japp/bgt/showdoc/18/DDLPRES/0/1143637/index.html?part… [15]https://www.notion.so/communia/Finland-ad2d30b2e9174a8c9cbbbb996775cbea [16]https://twitter.com/wikimedia_es/status/1450832145904242692?s=20 [17]https://epicenter.works/document/3711 [18]https://www.strategy.bg/PublicConsultations/View.aspx?lang=bg-BG&Id=6348 [19] https://www.notion.so/communia/Luxembourg-6afe7bf606384530baf79806c1b2fa32