Hello, everybody!

This month we will give you a more in-depth view of fewer files. In particular the Political Advertising Regulation seems to be reaching the finishing line. The AI Act, on the other hand, looks stuck.

Dimi & Michele

=== Transparency and Targeting of Political Advertising ===

The proposed regulation https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021PC0731 aims at regulating political advertising services with a focus on targeting and amplification techniques. The state goal is making them more transparent and thus contributing to the proper functioning of the internal market for those services. The last trilogue meeting (the de facto final stage of the legislative deliberations) took place on 6 Novmber and lawmakers, under the guidance of the Spanish Presidency, managed to reach a political deal.

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The final agreement solves the thorny issue of defining political advertising by introducing a remuneration element and encompassing in house activities as well as political campaigns. Nonetheless, the new definition leaves room for a broad interpretation, especially concerning in house activities. Some civil society organisations are worried that their regular advocacy activities might get caught in the crossfire. At Wikimedia Europe we followed this debate to ensure that no definition of political advertising would cover Wikipedia articles about politicians and parties, for instance.

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A ban for non-EU advertisers has been introduced, in the last three months preceding an election or referendum, be it at EU, national, regional or local level.

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With regard to the possibility to use special categories of personal data to profile people and deliver targeted messages, legislators introduced a specific prohibition. The latter applies also to inferred data, thus offering a proper protection. At Wikimedia Europe we expressed support to ban the use of targeted advertising based on sensitive data. During the deliberations some Member States wanted to explicitly allow this for political campaigns, although this has been prohibited by the Digital Services Act just a few months earlier.

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The new rules will enter into application after 18 months from the adoption of the regulation. This practically means that they will not be in place for the future EU elections foreseen in June 2024.

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Technical meetings are still taking place to translate the political deal into a coherent (more or less) legislative text and fine tune the details: the deadline was the 28th of November. Once the final text is agreed, both Parliament and Council will vote on it (and lawyer linguists translate it). The vote is then followed by the signature and the publication into the Official Journal. The adoption is likely to take place in December or at worst in January 2024.

=== AI Act ===

The Artificial Intelligence Act https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2021/0106(COD)&l=en’s trilogue negotiations, where the Council and the Parliament are supposed to hash out a final version of the text, are at a standstill. The drama reached new heights as parliamentary staffers walked out of a meeting with government representatives of the Council and European Commission officials a few days ago.

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The latest rift is about foundation models (“general purpose AI”). Those are systems like chatGPT that do not have a specific task and are hard to pin down in legislation. They weren’t specifically mentioned in the Commission proposal and were added to the debate by the European Parliament, which is suggesting to have binding rules on them. At the same time the Council, led by Germany, France and Italy, is insisting on sticking to the original plan https://drive.google.com/file/d/1S_WJ2mWjbFL1GM173tYFuWzc_MDTHUr5/view?usp=sharing of a risk-based approach. This would mean that foundational models would have to comply with obligations if they are deemed “high-risk”. Another point of contention is how reliable the risk assessments will be, as they are currently self-assessments by the developers.

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The Spanish Presidency of the Council is trying to find a middle ground here, but has been told by the Council’s “big three” that on such a fundamental issue a decision simply needs to be made and a compromise is not possible.

— Wikimedia projects wouldn’t be deemed “high-risk” under the current version and Wikimedia doesn’t develop foundational models, so we are currently in the role of a participant in the conversation, but don’t expect direct & immediate effects.

=== Copyright Agenda-Setting ===

While the next legislative term is unlikely to see an outright copyright reform, we still expect some legislative files related to intellectual property to be tackled. Possible topics include orphan works, geoblocking, database rights, live broadcasts of sports events and the market balance between music streaming platforms and rights holders.

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With this in mind it is noteworthy that the European Parliament’s Culture Committee (CULT) adopted a non-binding, own-initiative report on cultural diversity and the conditions for authors in the music streaming market https://www.europarl.europa.eu/doceo/document/CULT-PR-750068_EN.pdf. The final text asks for a better allocation of revenues and more transparency. It also vaguely points to risks to intellectual property and the music industry stemming from artificial intelligence.

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The report calls on the European Commission to analyse the “discoverability” of European music online. While there is nothing binding here and this report could end up without any follow-up, it will surely be used by interested stakeholders to demand legislative proposals from the European Commission.

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Another EP committee, on Legal Affairs (JURI), commissioned and published a study titled Buyout contracts imposed by platforms in the cultural and creative sector https://drive.google.com/file/d/1k-aab1uM5P57lZPT9sc880ltIdNw2YrB/view?usp=sharing. The study concludes that EU law needs to be changed in order to ensure artists rights for fair remuneration. Not surprisingly the study is being used by GESAC, the umbrella for organisations collecting royalties on behalf of authors, to ask for reforms.

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On another own-initiative front, the Internal Market Committee (IMCO) voted recently to call on the Commission to remove the exemption that allows audiovisual content to continue to be geoblocked across EU countries. This would mean any content or service to be available everywhere in the EU. The audiovisual sector is, naturally, not amused and is fighting this is plenary.

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