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:
This time we will call it a “EU copyright reform special”, so prepare to read a
This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor
What the JURI 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 material.
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 art. 
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 copyright-protected
visual works and make them available to the public for the purpose of indexing and
referencing conclude fair and balanced licensing agreements with any requesting
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
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
Banner on Italian Wikipedia: Italian Wikipedia has decided to run a banner.  See it
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 opposition.
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 last week.
And the Ministries:
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