EU Policy Monitoring Report - June - Publicpolicy

2 Jul 2018

tl;dr
This time we will call it a “EU copyright reform special”, so prepare to
read a single-issue report.

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 - [1]

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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.

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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.

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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 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.

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(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. [2]

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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.

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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 will go.

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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.

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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.

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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.

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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:

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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. [3]

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Banner on Italian Wikipedia: Italian Wikipedia has decided to run a banner.
[4] See it here [5]

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Banner on English Wikipedia: It looks like the English Wikipedia will run a
somewhat neutrally worded banner on Tuesday. [6]

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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. [7]
 Meanwhile Eileen Hershenov explains how the proposed text will hurt the
web and Wikipedia. [8]

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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.

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Voss: The rapporteur is saying himself that he is unsure about how the
plenary vote will go. [9] 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.

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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”. [9][10]

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Cultural organisations and their ministries: When the Berlin Philharmonic
starts supporting Article 13 publicly, you know we got ourselves a big
policy brawl. [11] 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.

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And the Ministries:

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[1]
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2b…

[2]
https://www.museothyssen.org/en/collection/artists/duccio-di-buoninsegna/ch…

[3]
https://derstandard.at/2000082513446/Bundesregierung-wirbt-trotz-FPOe-Kriti…

[4]
https://it.wikipedia.org/wiki/Wikipedia:Bar/Discussioni/L%27Unione_Europea,…

[5]
https://meta.wikimedia.org/w/index.php?banner=EU_Copyright_Directive_Italia…

[6]
https://en.wikipedia.org/wiki/Wikipedia:Village_pump_(proposals)#Proposals_…

[7]
https://meta.wikimedia.org/wiki/EU_policy/Wikimedia_Foundation_Board_of_Tru…

[8]
https://blog.wikimedia.org/2018/06/29/eu-copyright-proposal-will-hurt-web-w…

[9]https://twitter.com/LauKaya/status/1012247706033672192

[10]https://twitter.com/cepic_sf/status/1008642206423502849

[11]https://twitter.com/DanielsEuroSky/status/1005149480772096001

[12]https://twitter.com/michelreimon/status/1012705058184556548