[Advocacy Advisors] EU Monitoring Report - September 2014

Wed Oct 1 15:14:20 UTC 2014

Hi all,

it’s been a frenzy and it ain’t over yet. New people who we have to work
with and a copyright reform proposal that is apparently coming within the
next 12 months.

A very busy Dimi

Wikimedia and the EU
September 2014 Report

tl;dr
The new Commissioner for Digital Economy & Society performed unconvincingly
in his European Parliament hearing but said he wants to produce a copyright
reform proposal in 6 months’ time. While the Commissioners are being
checked out by the members of parliament, some of their units are moving
offices - most notably for us the copyright unit is moving from DG MARKT to
DG CONNECT.

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

ToC
1. EP Hearings: Commissioner for Digital Economy & Society Guenther
Oettinger
2. Restructuring the EC: Copyright unit moving from MARKT to CONNECT
3. CETA: Released text contains chapters on e-commerce and IPR
4. CJEU: Judgement on digitisation and access to works on libraries
5. Recommended reads

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#EPhearings2014 #Oettinger #copyright
1. Hearing of Commissioner for Digital Economy & Society Guenther Oettinger

Why is this relevant?
One of the top priorities of the new President of the European Commission
will be reforming copyright and two Commissioners will be responsible for
this: Guenther Oettinger for Digital Economy & Society and Andrus Ansip for
the Digital Single Market. From the looks of it Oettinger’s DG will lead
the drafting while Ansip’s units will oversee the process.

What happened?
The hearing took place on Monday during a joint meeting of the EP
Committees on Culture and Education (CULT) and Industry, Research and
Energy (ITRE). [1] The expectations were that Oettinger, who has never
dealt with internet or digital issues and headed the Energy DG in the past
five year, will have some problems working himself into the new matter. For
the most part, it looked like he’s not as well prepared as he could have
been. He fumbled on questions like data protection and internet security
(where it became obvious that he doesn’t know the difference between social
networks and clouds), net neutrality (where he alternatively voiced support
for the EP version, the Commission one and then offered to explain his
position somewhere else) and free software (where he admitted he didn’t
understand the question). To be fair, he nailed some parts on “Right to be
forgotten” and “Data protection”, but the overall feeling was one of “hit
and miss” answers and that he lacked a general direction. Brief highlights
here: [2]

Good news is that he seemed most coherent on copyright. He said he will
work out a copyright reform proposal within the next six months. He talked
a lot about - and that is a standard Commission position - balancing online
access and authors’ rights.
Importantly for us, he underlined that borders shouldn’t be visible within
the EU and that this must include the digital world. The wording “I support
the protection of intellectual property rights, but content must be
available everywhere” hints he will seriously look into harmonising
exceptions and limitations. However he also mentioned that “in the middle
term states won’t relinquish own regulation”.

My take is that DG Connect might try to harmonise some of the exceptions
now and set a several decades long term for a single copyright title.
Similar long transitional periods are known in the EU from harmonisation of
driving licenses, for instance.

What comes next?

Oettinger makes the impression of a highly intelligent and a very
experienced Brussels politician who has all the skills it takes to see
through an own legislative proposal. The catch here is that he doesn't seem
to know what he wants because for the most part he still doesn't know what
he's talking about.
I still believe that he is a step forward from someone who at this point
five years ago already had his mind set on defending narrow IP business
interests. Let’s consider him a blank page that we can we still write on.
Next Monday the other “digital” Commissioner - Andrus Ansip from Estonia –
who will be overseeing the digital single market will be heard.[3]
After the hearings are over and people have settled in their new offices
and gotten to know their teams we'll be release our Position Paper on EU
Copyright to welcome our new partners from the Commission. [4] We're
expecting a few more co-signatories in the coming days.
I now have heard from at least three independent sources (Commission and
Parliament) that the new reform proposal will be done within a year and
that they might skip publishing a white paper on the topic first.

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#TeamJuncker #POTEC
2. Copyright Unit Moving from MARKT to CONNECT

Why is this relevant?
This is the unit that will be in charge of the copyright reform, proposal.

What happened?
So far the entire Intellectual Property Directory, including units on
industrial property, copyright and counterfeiting & priacy, was housed in
DG MARKT (Internal Market Directorate). [5] It has been announced that the
copyright unit will be moving to the Digital Economy & Society DG. [6] The
industrial property unit will be staying at MARKT and no one knows yet
(including the people working there themselves who I talked to) if the
counterfeiting unit is moving as well.

What comes next?
Packing and unpacking boxes. But seriously, I anticipate two changes:
A) Now that copyright will be handle with a DG whose top priority isn’t the
Internal Market alone, non-monetary arguments should gain more weight
B) Copyright will always remain an inter-disciplinary field, but the
competencies seem to be very well defined in this Commission. Last time
around we had three Commissioners responsible. Now we have Oettinger
drafting and Vice-President Ansip overseeing him.
For the roles of the new DGs and their Commissioner see also the mission
statements for Ansip [7] and Oettinger [8].

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#CETA #IPR
3. Released EU-Canada trade agreement text contains chapters on e-commerce
and IPR

Why is this relevant?
International agreements can contain chapters on intellectual property
rights. These may set standards or enshrine rules that later become
virtually untouchable. Since the negotiations are usually conducted in
secret, special attention is required when documents are released, as the
time for reaction is limited.

The massive outcry against treaties like ACTA has
Text released, don't know if it is out of scope.
contains chapters on e-commerce and IPR
rules on data protection
negotiation logic in free trade is that: "if you offer something in CETA
you have to offer at least the same in TTIP"

What happened?
The consolidated text of the Canada-EU Trade Agreement (CETA) was released
last week. [9] It contains chapters on IPR and e-commerce and rules on data
protection. It talks a lot about Digital Rights Management, a circumvention
prohibition thereof and a prohibition on software that can be used to
circumvent DRM. It also has an article on IPR enforcement (Article 18),
which foresees the seizure of property on alleged infringers, including
blocking of bank accounts and assets. This sounds a lot like ACTA (I’d say
about 80 percent of the text is identical). It is also intriguing, because
we still have not harmonised copyright and enforcement rules in the EU,
raising the question on what grounds the Commission is negotiating this
with Canada.
There’s also a so-called “follow the money” approach for pursuing
infringers who knowingly violate copyright law. They can be asked to pay
compensations which would include alleged lost profits.

What comes next?
The major question here is, if this treaty is out of scope for the European
Commission. If it touches upon policies which are not the exclusive
competence of the EU, it would have to be ratified by the European
Parliament, the Council and the parliaments of the 28 Member States. If it
falls within EU law an okay from the Parliament and Council would be
enough.
It is also important in light of the talks on a similar EU-US trade
agreement (TTIP). The negotiation logic in free trade agreements is that if
you offer something to Canada, you’ll have to offer at least the same
conditions to the USA.

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#digitisation #CJEU
4. CJEU to judge on digitisation and access to works on libraries

Why is this relevant?
Digitisation and access to knowledge is at the core of what we’re doing.

What happened?
A court case between a German publisher and the library of the Technical
University of Darmstadt was referred to the Court of Justice of the
European Union in Luxembourg. The issue was that the library had digitised
a book and was offering its readers on-premises terminals that gave them
the possibility to print them out or even copy them to a USB stick.
According to German law, the library wouldn’t be allowed to offer
simultaneous access to more readers than the copies it has actually
acquired. The case with printing and copying onto USB stick is however not
clarified and was therefore passed on to the EU court.

The court judged [10] that (a) the library may digitise and offer such
copies to its readers only if there is no reasonable offer by the publisher
and that (b) the library may very well digitise books for preservation and
for offering them to its readers on-site. Lastly, it proclaimed that (c)
readers might under some circumstances make private copies of books, not
distinguishing between hard and digital version here. The user will have to
find appropriate copyright exceptions and limitations for doing so, which
are not of the library’s concern.

Further reading: [11] [12]

What comes next?
The German Federal Court must now interpret the judgement of the CJEU and
rule on the case.

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#IT2014EU
5. The Italian Presidency and some relevant texts

Here are some interesting texts on IPR issues produced during the Italian
Presidency of the Council. There is no particularly pressing issue for us
here yet, so consider this rather a recommendation than a must.

Jeremy Rifkin: Digital Europe - The Rise of the Internet of Things and the
Integration of the single Market [13]
Description: Talks about how the “sharing economy” will turn the entire
industry upside-down and touches upon pretty much every hot internet issue
while discussing it.

Italian Presidency Working Paper on Intellectual Property Rights
Enforcement [14]
Description: Prefer not to say anything here

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[1]
http://www.europarl.europa.eu/ep-live/en/committees/video?event=20140929-1430-COMMITTEE-HEARING2014GO
[2]
http://www.vieuws.eu/ict/5-toughest-questions-faced-gunther-oettinger-digital-economy-society-hearings-juncker-commission/
[3]
http://www.europarl.europa.eu/ep-live/en/committees/video?event=20141006-1830-COMMITTEE-HEARING2014AA
[4]https://meta.wikimedia.org/wiki/EU_policy/Position_Paper_on_EU_Copyright
[5]http://ec.europa.eu/dgs/internal_market/departments/index_en.htm
[6]http://europa.eu/rapid/press-release_IP-14-984_en.htm
[7]http://ec.europa.eu/about/juncker-commission/docs/ansip_en.pdf
[8]http://ec.europa.eu/about/juncker-commission/docs/oettinger_en.pdf
[9]http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf
[10]
http://curia.europa.eu/juris/document/document.jsf?text=&docid=157511&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=410993
[11]
http://ipkitten.blogspot.be/2014/02/cjeu-to-decide-on-present-and-future-of.html
[12]
http://www.hlmediacomms.com/2014/09/18/cjeu-renders-judgment-on-digitizing-and-electronic-access-to-works-in-public-libraries/
[13]
https://ec.europa.eu/digital-agenda/sites/digital-agenda/files/discussions/9.21.2014_digital_europe.pdf
[14]
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013076%202014%20INIT
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