[Advocacy Advisors] EU Monitoring Report June

Tue Jul 1 07:29:28 UTC 2014

Wikimedia and the EU

June Report

tl;dr

A draft of the White Paper on copyright was leaked and looks very vague. A
court decision confirmed that caching when browsing the internet does not
constitute a copyright infringement.

This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor

ToC

1. Leaked White Paper on Copyright

2. Meltwater Case CJEU Decision

3. EU Libraries May Digitise Books Without Asking Permission

4. Next Steps in Brussels - Parliamentary Groups, Committees and
Commissioners

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#copyright #DGmarkt #whitepaper

1. Leaked White Paper on copyright remains vague

Why is this relevant?

A White Paper is an action proposal by the European Commission. [1] They
are the usual phase before a legislative proposal, although this is not an
automatic step.

What happened?

Following the copyright consultation by the European Commission and several
studies released in the intellectual property field, a white paper was
announced for June and then July. While we’re still waiting for the
officially published version, a draft was leaked to the public.[2][3]

The draft looks quite elaborate, so that I wouldn’t expect major changes of
direction in the final version, but some nuanced might still be refined.

The basic position is that they recommend action to be taken in the
2014-2019 period, but don't want to say whether this should legislative or
other. The positions range from harmonising exceptions (teaching, persons
with disability) to basically refraining from any binding steps (in the
cases of user-generated content, e-lending).

It clearly underlines, that the Commission sees copyright first and
foremostly as an economic tool, which means that we need to be able to
bring our points across using economic arguments.

In its current form, the white paper doesn’t really talk about the major
copyright issues (fragmented rules across 28 Member States and the
uneconomic length of copyright terms), but leaves the door open for some
harmonisation of exceptions and limitations. Whether the opening will be
large enough to push our issues firmly onto the agenda will partly depend
on tonality and nuancing of the final version.

What comes next?

We need to wait for the official text and see how it will be perceived by
the Council and Parliament. The white paper needs to be also read in
combination of the impact assesment, which is to be released in parallel by
the Commission. A leaked version of this also available. [4]

The actions that follow will depend heavily on the new Commissioner, who is
expected to take office in November. A great opportunity to make copyright
a crucial agenda topic over the coming five years is the new Commissioner’s
hearing in the European Parliament in September/October. One way to make
sure this happens is to get in touch with the relevant committees and MEPs
that will conduct the hearing.

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#meltwater #CJEU

2. CJEU confirms that browsing is no copyright infringement

Why is this relevant?

It is part of both, the fundamental structure of the internet and copyright
law. The question was whether technical copies (caching) made while
accessing websites are copyright infringements and thus need permission by
the rights owner.

What happened?

The UK Newspaper Licensing Agency (NLA) sued a service called Meltwater
News based on the conviction that temporary, on-screen cached copies of
newspaper articles on end-users’ computers made while accessing websites
constitute copyright infringement.

The UK Supreme Court referred [5] the case to the CJEU to clarify whether
temporary copies may be made without authorisation of the copyright holder,
according to the 2001 InfoSoc Directive, Article 5. [6]

The Court of Justice ruled [7] that in this case copies are temporary, part
of the technical process and incidental, so that no permission needs to be
cleared for them.

What comes next?

Temporary and technical copies are an important part of the debate around
copyright and the internet and such decisions will be taken into account
for the white paper on copyright as well as any further steps proposed by
the European Commission.

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#digitisation #libraries

3. Advocate-General says libraries may digitise books without permission

Why is this relevant?

In a forthcoming ruling the Court of Justice of the European Union needs to
decide in which cases libraries will be allowed to digitise books in their
collection and how they’ll be allowed to grant access to them. This is an
important decision that directly influence how knowledge can be legally
digitised and distributed.

What happened?

A German publisher sued the Technical University of Darmstadt, because it
digitised one of its books - which was part of the university’s library
collection - without asking for an additional permission first. While the
system didn’t allow the number of people accessing the digital version to
exceed the number of copies the library owned, the on-premise terminals
gave students the opportunity to print copies or save them on USB sticks.
[8]

The case was referred to the CJEU by the German court asking for guidance.
The Advocate-General of the CJEU released an opinion on this case [9]
stating that it is up to Member States to allow libraries to digitise books
in their collections without the rights-holders’ consent. Further it says
that copying the digitised version is a copyright infringement as far as
the InfoSoc Directive is concerned, but printing the book should be
permissible, since this may be considered a private copy.

What comes next?

The final ruling of the Court of Justice of the EU doesn’t always follow
the Advocate-General’s opinion, so we will need to wait for a few more
months to have legal certainty of what is permissible.

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#EP #committees #NewParliament

4. Next steps in Brussels: Parliamentary groups, committees and
Commissioners

Why is this relevant?

It helps knowing who we will be working with over the next 5 years and
which political ecosystem this partnership will be set in. Talking
specifically about copyright, the crucial European Parliament Committees
are JURI (Legal Affairs) and IMCO (Internal Market and Consumer
Protection), while the most relevant Commissioner will be the one
responsible for the Internal Market (DG MARKT).

What happened?

With the first plenary session scheduled for the 1-3 July in Strasbourg,
the parliamentary groups seem to have formed. The new composition of the
major looks as follows [10]:

   -

   European Peoples Party 211 (conservative/industry-driven copyright
   views)
   -

   Socialists&Democrats 191 (conflicting views on copyright, but very
   pro-education)
   -

   European Conservatives&Reformists 70 (conflicting views, but British
   Tories pro single market)
   -

   Liberals&Democrats 67 (pro-market but also supporting strong civil and
   user rights)
   -

   Radical Left 52 (supporting a major copyright overhaul)
   -

   Greens/EFA 50 (group comprises the Pirate MEP and has supported a vast
   copyright reform)

What has changed is the strengthened position of radical-right groups and
independents. This has shifted the majority coalitions needed. In the last
legislative period it used to be possible to get a majority with the
Socialists, Greens and the Radical Left or with Peoples Party and Liberals.
Now both combinations won’t reach the required number of votes meaning that
finding majorities will become even harder and necessary compromises might
water down most legislative texts.

What comes next?

The groups will be appointing MEPs to the committees ahead of the first
plenary now.  A lot of names are already known as these nomination were
part of the forming of the groups, but the final lists are expected to be
released on 3 July (the first plenary in Strasbourg will take place 1-3 of
July) or on the 7th when the first committee meetings will be held.

The committees will then also be in charge of handling the hearings of the
proposed new commissioners in September and October. The new Commission is
expected to step into office in November.

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[1]http://europa.eu/legislation_summaries/glossary/white_paper_en.htm

[2]
http://ipkitten.blogspot.com/2014/06/super-kat-exclusive-heres-commissions.html

[3]
https://www.dropbox.com/s/0xcflgrav01tqlb/White%20Paper%20%28internal%20draft%29%20%281%29.PDF

[4]
http://statewatch.org/news/2014/may/eu-draft-impact-assessment-copyright-acquis.pdf

[5]
http://www.twobirds.com/en/news/articles/2014/global/cjeu-decision-in-meltwater-the-internet-is-saved-browsing-does-not-require-a-licence

[6]http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32001L0029

[7]
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62013CJ0360&qid=1401959911292&from=EN

[8]
http://eulawradar.com/case-c-11713-technische-universitat-darmstadt-introducing-modern-eu-copyright-law/

[9]
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-06/cp140078en.pdf

[10]
http://europedecides.eu/2014/06/whos-going-where-tracking-the-musical-chairs-in-the-european-parliament/
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