[Advocacy Advisors] Wikimeida and the EU - Monitoring Report April

Dimitar Parvanov Dimitrov dimitar.parvanov.dimitrov at gmail.com
Mon May 5 11:29:35 UTC 2014

Wikimedia and the EU

April Report


Almost everyone here returned to their Member States to work on their
reelection. This gives us some time to concentrate on case law and take a
closer look at what the Commission has been up to.

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


1. Commission Works on Copyright Reform - leaks, studies and a White Paper

2. ECHR Case Delfi vs. Estonia - website liability for user comments

3. CJEU Case ACI Adam vs. Thuiskopie - lawfulness of private copies

4. Net Neutrality Legislation - European Paliament adopts its final version




1. Commission works on copyright reform: Leaks, studies and a White Paper

Why is this relevant?

Copyright is our core issue. The Commission is currently working on several
studies, on analysing the answers of the copyright consultation [1] and on
an impact assessment. All of these are supposed to feed into a White Paper,
a political document proposing the next steps of the European Commission.

What happened?

The website statewatch.org leaked excerpts of the draft impact
assessement.[2][3] The Commission identifies four possible scenarios for
this dossier, including two non-legislative actions (that would result in
producing best practice guidelines or similar non-binding documents),
seeking further harmonisation (which would mean reopening the Information
Society Directive that includes Freedom of Panorama) and an European
Copyright Act (meaning complete harmonisation, i.e. the end of national
legislation in this field).

Apart from that, the most interesting part in the leaked texts for us is
the section on User-Generated Content. In this draft the Commission seems
more preoccupied with getting authors and publishers whose content is being
used remunerated, rather than helping average users be creative by
providing  a safe and sound legal environment for re-mixing content, for
instance. Copyright4Creativity, a coalition on copyright reform, has
already commented publicly on this draft. [4]

The Commission has also already released two studies on different aspects
on copyright: first, on the implementation of the Copyright in the
Information Society Directive [5] (a 600 page zinger you are welcome to
read and tell us more about) and second, on Text and Data Mining. [6] This
must be seen as part of the “complete works” on copyright under
Commissioner Barnier and will likely set the tone for the White Paper and
the next Commissioner.

Update: Three new sections of the IA were leaked. On legislative scenarios
(estimating a 5-10 years timeframe for deeper harmonisation) [7],
disabilities [8] and text and data mining. [9]

What comes next?

We’re expecting two more studies in the field of copyright during the next
month - on access for people with disabilities and on enforcement. The
official impact assessment is to be published beginning of May.
Furthermore, Marco Giorello promised during the Wikimedia/UNESCO expert
seminar on mass digitisation [10] that the White Paper on copyright will be
published during the second half of June and that it will most probably be
a broad political document to set the scene for the new European Commission.



#ECHR #Delfi

2. European Court of Human Rights rules website liable for comments beneath

Why is this relevant?

Although this is not an EU, but rather a Council of Europe [11] and
therefore European Court of Human Rights [12] issue (i.e. the court in
Strasbourg rather than the one in Luxembourg), it concerns the liability of
websites for content generated by their users. The decision has been made
in October 2013, but the procedure to seek a reopening of the case is going

What happened?

An Estonian news site has been declared liable for offensive comments
posted under an article, despite the administrators moderating and removing
these upon request. The Estonian court ruled that the website could have
expected such comments under this particular article and therefore had to
act even before being asked to by the offended party. Delfi (the website
operator) went to the European Court of Human Rights to appeal this
decision. The ECHR upheld the view by Estonian courts that Defli has
editorial control of comments on its servers and should have therefore
prevented illegal content. [13]

What comes next?

Civil Society organisations are going to support Defli to request a
referral of the case to the Grand Chamber of the European Court of Human
Rights in order to overturn the decision. [14] [15]




3. Court of Justice of the European Union and the private copying exception

Why is this relevant?

It has no direct relevance to Wikimedia projects, but plays a role in the
system of exceptions and limitations in the European Union and in
particular under the Copyright in the Information Society Directive. [16]
As this Directive also contains the currently optional exception we call
Freedom of Panorama, anything relating to it (its implementation,
interpretation and possible reopening) should be of interest to us.

What happened?

Most Member States make use of the option granted under the Copyright in
the Information Society Directive to allow private copies (e.g. backing up
a hard disk or photocopying a newspaper article). Some Member States,
including the Netherlands, applied this exception even to unlicensed
material (e.g. illegally downloaded content). This influenced the
calculation of copying levies (a tax we pay buying technology that can be
used for copying artistic content). [17]

The Dutch Supreme Court therefore referred a case to the Court of Justice
of the European Union to clarify if the private copying exception can
indeed cover unlawfully obtained content and how this must interact with
the system of private copying levies.

The Court in Luxembourg ruled that the private copying exception cannot
cover unlawful content. It also deemed that illegal copies cannot be taken
into account when calculating private copying levies. [18] [19]

What comes next?

Important here is to keep in mind, that this decision seems to reinforce
the rule that exceptions and limitations may only be granted if they do not
harm any economic interest. In fact, the InfoSoc Directive introduced for
the first time the concept of a three-step-test on this to European law.
This check states that exceptions and limitations cannot “conflict with a
normal exploitation of the work and do not unreasonably prejudice the
legitimate interests of the author” [20]




4. Network neutrality legislation - EP Votes on its final version

Why is this relevant?

Net neutrality is a basic principle of having an open internet from
"end-to-end", meaning that no positive or negative discrimination of
datastreams should occur. The European Commission included this principle
in the current “Telecoms Package” framework revision proposal. [21] The
legislation will determine what agreements between content providers and
telecoms will be legal in the EU. If the concept is defined too narrowly,
it might result in an internet where content providers with more money or
other leverage can secure preferential access to end users. If, on the
other hand, it is defined too broadly, it could mean an end to zero-rated
projects - like Wikipedia Zero.

What happened?

The current text with amendments [22] adopted by the European Parliament
during a Brussels plenary session states, in the most relevant sections,

234: "(12a) "net neutrality" means the principle according to which all
internet traffic is treated equally, without discrimination, restriction
or interference, independently of its sender, recipient, type, content,
device, service or application"

235: "(15) "specialised service" means an electronic communications
service optimised for specific content, applications or services, or a
combination thereof, provided over logically distinct capacity, relying
on strict admission control, offering functionality requiring enhanced
quality from end to end, and that is not marketed or usable as a
substitute for internet access service"

It will depend on the interpretation of these articles or changes made to
them in the European Council whether zero-rated projects will be allowed
under EU legislation.

What comes next?

Sometime after the elections the Dossier will go to the Council (Member
States’ governments) which can either approve or change the text. In the
latter case, the altered version will be discussed again with the European
Parliament to try and reach an agreement.






















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