Q: Would it be a correct characterization that a provider who doesn't
want to use upload filters would have to make deals with copyright
collectives in every single member state?
Matthias Smed Larsen
Den 02-07-2018 kl. 11:29 skrev Dimitar Parvanov Dimitrov:
tl;drThis time we will call it a “EU copyright reform special”, so
prepare to read a single-issue report.
This and past reports:
Committee Adopted: It took the secretariat of the Legal Affairs
committee a while to circulate a consolidated text on what was exactly
adopted. There has been an erratum on Article 11, paragraph 4, but the
text is pretty much available now. See - 
Article 13: Article 13 changes the liability regime for most online
platforms allowing users to upload content by requiring them to sign
deals with any requesting rightholders. Else, the online platforms
must take measures to assure the non-availability of infringing
content. The result of all this is that platforms are directly liable
for their users.
Wikimedia carve-out for Article 13:Article 2, paragraph 1, point 4b
defines who falls under the new liability regime. It is sloppily
written, but says “Services acting in a non-commercial purpose
capacity such as online encyclopaedia”. We don’t think only Wikipedia
is exempted, as "online encyclopaedia" is only an example (“such as”).
A bit of an uncertainty is cause the use of the term “services” rather
than “platforms”. But this way GitHub, that has a non-commercial code
sharing service on a platform that also offers commercial products,
can probably also benefit. The issue with this is, of course, that
Wikimedia and GitHub were simply loud enough in Brussels and thousands
of services are probably being forgotten.
Article 11:This article requires Member States (and by extension EFTA
countries) to establish a new neighbouring right for press publishers
that lasts for 20 years. So 32 new parallel neighbouring rights on the
internet. <sarcasm>Yey!</sarcasm> The idea is that news publishers
should be able to control the previews shown of their articles online
and demand remuneration for it. In order to appease some of the
criticism the committee tried to cushion the text by saying that the
new right “shall not prevent legitimate private and non-commercial use
of press publications by individual users” and “shall not extend to
acts of hyperlinking”. Both don't go a terribly long way to appease
the masses. We have had the discussion in the past about sharing a
photo of the Atomium on Twitter - commercial or non-commercial?
Probably commercial. Also, the EU Court of Justice jurisprudence is
quite unclear about what a link constitutes. Only alphanumeric bit.ly
<http://bit.ly> like links, or can it contain the title of the
article? Either way, bibliographies or further reading lists of recent
news publications are covered and would require licensing.
(Some) public domain safeguarding: In Article 5 we did manage to get
in a very limited (Cavada!) public domain safeguard that reads as follows:
Member States shall ensure that any material resulting from an act of
reproduction of material in the public domain shall not be subject to
copyright or related rights, provided that such reproduction is a
faithful reproduction for purposes of preservation of the original
As you may imagine, we were trying to fix or remove the part after the
comma. In the end this half sentence is quite unclear and five lawyers
are telling us five different things about what it would mean. This is
something to grind down during trilogue, but even so, it at least
should solve the Museo Thyssen-Bornemisza copyright claims on medieval
No new exceptions:The user-generated content exception was voted down,
although the MEPs, in a demonstration of them not knowing what they
are doing at least some of the time, adopted its recitals. So was the
Freedom of Panorama exception. So no news here.
More rights for rightsholders: To emphasise the point, the the
committee majority was solidly on the side of new exclusive rights but
no new exceptions, it adopted some goodies for sports events organisers:
Article 12 a Protection of sport event organizers
Member States shall provide sport event organizers with the rights
provided for inArticle 2 and Article 3 (2) of Directive2001/29/EC and
Article 7 of Directive2006/115/EC.
And a licensing requirement for image searches:
Member States shall ensure that information society service providers that
automatically reproduce or refer to significant amounts of
visual works and make them available to the public for the purpose of
referencing conclude fair and balanced licensing agreements with any
rightholders in order to ensure their fair remuneration.
Procedure & next steps: So the Legal Affairs committee adopted a text
and wants to start negotiating with the Council on the final version
(trilogue). But here’s how things will go.
5 July Vote:On Thursday the JURI mandate will be challenged in
plenary. One tenth of MEPs can challenge pretty much any decision in
plenary. This will happen and a vote will be held. All 750 members
will vote and a simple majority is enough.
If the mandate is confirmed:In this case trilogue meetings will be
held beginning in September. At these meetings representatives of the
Commission, the Council Presidency and the European Parliament
(rapporteur and shadow-rapporteurs) will be hammering out the final
wording. Seen the JURI committee text and the Council text are already
quite compatible, no major changes can be expected.
If the mandate is rejected:Then the text will be re-opened in
September (most likely) in plenary and it will be possible to table
and vote on amendments. We would need 10% of the Parliament, so 75
members, to propose an amendment.
Final Vote: Regardless of the path taken, a final vote in both
chambers (Council and Parliament) will need to be held to adopt the
Directive text finalised in trilogue. This is expected to happen
December/January. If it takes longer than this, we’ll be getting very
close to elections and risk not finishing the reform within this
legislature (can be bad or good).
Wikimedia actions: In the past years and months, but more notably in
the past days several Wikimedia actions have been organised to prepare
for the 5 July vote and voice our issues. Here is a selection:
Press Conference in Vienna:Katherine Maher (WMF), Claudia Garád
(WMAT), Dimi (FKAGEU) and Thomas Lohninger (epicenter.works) organised
a press conference on Friday to mark the beginning of the Austrian
Presidency and to get the national press up to speed on copyright. 
Banner on Italian Wikipedia:Italian Wikipedia has decided to run a
banner.  See it here 
Banner on English Wikipedia:It looks like the English Wikipedia will
run a somewhat neutrally worded banner on Tuesday. 
Statement by the Wikimedia Foundation board and the General Legal
Council:The board of trustees of the Wikimedia Foundation has
unanimously adopted a statement on the EU copyright package, saying
that it contradicts our vision and calls for rejection of a mandate
based on the current text.  Meanwhile Eileen Hershenov explains
how the proposed text will hurt the web and Wikipedia. 
Vote in Strasbourg: Expected on Thursday before noon. Three
Wikimedians will be inside the building in the days ahead in order to
meet MEPs and staff to deliver last arguments.
What our opponents are saying: Always important to keep an eye on the
Voss:The rapporteur is saying himself that he is unsure about how the
plenary vote will go.  He is even publicly stating that parts of
his own group won’t support him. This is astonishing for the EPP
group, the parliament’s largest and most disciplined one. It could,
however, also be a way to rally the troops.
Crying #FakeNews:Meanwhile collecting societies and rightholder groups
have taken to Twitter and personal meetings to say that upload filters
aren’t part of the text, while explaining that upload filters are
already deployed and thus not scary. Ah, and to say that all the
opposition to Article 13 is essentially “fake news”. 
Cultural organisations and their ministries:When the Berlin
Philharmonic starts supporting Article 13 publicly, you know we got
ourselves a big policy brawl.  Meanwhile in Austria, all political
groups had stated that they would vote against the mandate. Then their
Minister of Culture sent around a letter to MEPs urging them to
support it. Now the Austrian EPP position seems a bit more shaky than
And the Ministries:
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