EU policy/Current situation and scope for action

The Free Knowledge Movement. Interaction with european regulatory approaches; survey of current situation and scope for action

Dossier originally drafted for Wikimedia Deutschland e.V.

Author: Claudia Keller

Date of Submission: January 20th, 2013

[CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)]  

Contents

1. Introduction

2. Definition of open knowledge

2.1. Contractual basis and EU policy areas that affect the realm of open knowledge

3. International developments in the realm of open access and curbed innovative capacity in the EU internal market as the source of involvement

3.1. Open access to publicly financed research results

3.2. European cultural heritage and access to public libraries

3.3. Public sector information

3.4. Further planning

4. How organized interests can influence the process

4.1. The functions of EU lobbying

4.2 Institutional influence

4.3 Types of organization

4.3.1 Associations

4.3.2. In-house lobbyists

4.3.3. Public affairs consultants

5. Summary

1. Introduction

Calls for free or open knowledge and free content are incorporated with open access, creative commons and free software in the movement that advocates Internet policies that promote Net neutrality and freedom, modern copyright, exploitation and data protection law, and political transparency and political participation through the use of digital media. In Europe, this movement’s constitutive moment came with mobilization against the adoption of the Anti-Counterfeiting Trade Agreement (ACTA), which manifested itself on the political landscape in the founding of several national branches of the Pirate Party. The adoption of the multinational treaty ACTA, which was intended to define minimum standards for the protection of intellectual property rights, was halted by the European Parliament due to fears that it would lead to infringements on human rights, could negatively affect the innovative capacity of national economies and due to the intransparency of international and European trading practices.

Similarly to those in the environmental movement, the various Internet policy activists are concerned with a common good. What sets the burgeoning Internet freedom movement apart from the environmental movement is the origin of the policy demand. While environmental policy issues such as reducing harmful emissions were successfully demanded and framed as negative external effects of economic activity when the single European market was being finalized, the Internet, with its technological determinants, high usage costs and technological shortcomings, was comparatively free. This free and unregulated sphere gave rise to technological innovations that Philippe Aigrain has deemed a result of the culture of sharing; today, these innovations constitute a critical component of access to education and information in the digital age:

Sharing is an act of making something available to others, just like - in a more minor way - recommending a work to someone or - in a more involved way - re-using one in a creative process.

As an entity of our common cultural heritage, the Internet should be preserved in its form and neutrality. However, due to technological innovations that allow software, music, data and books to be shared, users are increasingly subjected to criminal prosecution for infringement of copyright and data privacy laws. The demands that are being made as a result of this conflict regarding the use and organization of the Internet in the future are of relevance on a global and European scale, yet authoritative regulatory strategies in the areas of copyright, data privacy and criminal prosecution policies as well as equally important financial stimulus initiatives for digitalization and online storage continue to be regulated by individual European states. The European Union (EU) has recognized the importance of the Internet to the economic growth and the innovative capacity of individual national economies in Europe in the fields of education and research, while also acknowledging the possibilities a culture of sharing creates with regard to education policy.

2. Definition of open knowledge

As a basis for its work, the Open Knowledge Foundation formulated a definition of “open knowledge,” thus providing one of the few working definitions for the political and legal discourse. It construes “open knowledge” as open access to three types of knowledge repositories: (1) content, such as music, films and books; (2) all manner of data, be it scientific, historical, geographic or otherwise; (3) government and other administrative information. These three knowledge repositories are considered open if they satisfy a series of conditions regarding access, usage and reuse that are marked by transparency, fair price structures and the possibility to modify and reuse part or all of a work. The extent to which the European legislature agrees with this definition is unclear. Political and governmental regulatory approaches at the European level encompass all three repositories of knowledge given in the definition; in the long-term, European policy initiatives aim to ease access options, to promote networks and to reduce usage costs in the framework of the authority granted EU lawmakers.

2.1. Contractual basis and EU policy areas that affect the realm of free knowledge

To date, activities in the realm of free knowledge draw on the objective of creating an internal market stated explicitly in Article 3(3) of the Treaty on European Union (TEU); this article also provides for the promotion of scientific and technological development. Article 179(1) and (2) of the Treaty on the Functioning of the European Union (TFEU) supplement this internal market objective with reference to creating a unified research area to pursue the following aims:

(1) The Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties.

(2) For this purpose the Union shall, throughout the Union, encourage undertakings, including small and medium-sized undertakings, research centers and universities in their research and technological development activities of high quality; it shall support their efforts to cooperate with one another, aiming, notably, at permitting researchers to cooperate freely across borders and at enabling undertakings to exploit the internal market potential to the full, in particular through the opening-up of national public contracts, the definition of common standards and the removal of legal and fiscal obstacles to that cooperation.

In light of this contractual background as well as the multifaceted interactions involved in the demand for open knowledge through the medium Internet, several EU-level policy fields that differ as regards competence issues, financing and the nature of codetermination on the part of other European institutions are affected. The EU has three types of competence as stipulated in Articles 3, 4 and 6 of the Treaty on the Functioning of the European Union (TFEU). In areas of exclusive competence, such as trade policy, competition law and the conclusion of international trade agreements, only the EU can enact legislation. Member States, if not authorized by the Union, are obligated to implement and adopt EU regulations. If competence is shared, both the Union and Member States can enact legislation in that area. If the Union decides to exercise its competence in a specific area, the Member States can no longer exercise competence. Article 4 TFEU lists a series of established shared competences; the internal market is one of them. The Digital Agenda is not a competence in its own right, however, it does realize measures on the internal market, and is therefore also a shared competence. Article 4(3) TFEU separately defines competence in the areas research, technological development and space. In these areas, the EU’s competence is, “…to carry out activities, in particular to define and implement programs; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.” Article 6 TFEU specifies the third form of competence, which consists of supporting, coordinative and supplementary actions. These measures are often referred to as “soft law” among political scientists due to the fact that no binding legislative acts are adopted in the policy fields that they pertain to; however, a certain level of “peer pressure” is meant to be created through shared policing by the Commission through “naming and shaming”; this can prompt Member States to adopt the legislation. The EU’s task is limited to determining European objectives; policy areas that are defined as such include culture, industry, corporations et al.

Education and culture	• DG for Education, Culture, Multilingualism and Youth (EAC), Androulla Vassiliou, Cyprus
Research and innovation	• DG for Research and Innovation (RESEARCH), Máire Geoghegan-Quinn, Ireland
Internal market and services	• DG for Internal Market and Services (MARKT), Michél Barnier, France
Enterprise and industry	• DG for Enterprise and Industry (ENTR), Antonio Tajani, Italy
Information society	• DG for Communications Networks, Content and Technology (CONNECT), which manages the Digital Agenda, Neelie Kroes, Netherlands

On the basis of the definition given by the Open Knowledge Foundation, this dossier must primarily concern itself with activities that enhance access to data that is “scientific, historical, geographic […] and […] government and administrative information” and is primarily related to knowledge goods, (1) whose copyright has either expired or (2) whose copyright status has not yet been determined at the time of publication. Some of the existing initiatives, such as the European online library project europeana.eu, have already affected national copyright laws. This has led to some alienation between Member States and the EU. This year the Commission initiated debate on the amendment of copyright law for the digital market. Furthermore, the Commission intends to seek out opinions over the next two years to assist in deciding whether EU lawmakers should act.

3. International developments in the realm of open access and curbed innovative capacity in the EU internal market as the source of involvement

Involvement in promoting open access to scientific data was born of an array of scientific affiliations within Europe that recognized the importance of the open access movement for exchange among the scientific community long before the European Union did. The Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities, made in 2003, was a landmark in the open access movement; it was the first declaration to call for broadening access to free knowledge to include cultural goods that are held in archives, libraries and museums. The declaration currently has 412 signatories.

The members of the Organization for Economic Cooperation and Development (OECD) took the topic to heart and drafted a ministerial declaration on access to research data from publicly funded projects in which they called on the OECD to develop principles and guidelines to create open access to publicly financed scientific research. The OECD reacted in 2007 by issuing the OECD Principles and Guidelines for Access to Research Data from Public Funding.

The OECD had presented a study that listed economic arguments in favor of the expansion of open access to publicly funded research, such as growth simulation and enhanced research productivity, as early as 2005. These international developments, which can be portrayed similarly as regards the digitalization of cultural goods and the use of public sector information (PSI), exemplifies the reactive policymaking at EU level. As such, it is not astonishing that the EU waited to designate the Internet as a matter of priority importance and made the accessibility of knowledge via the Internet a crucial basis for stimulating growth on the European internal market only after the failure of the Lisbon Strategy, which aimed to make the EU Internal Market the most competitive and dynamic knowledge-based economy in the world.

The Europa 2020 strategy, which was adopted in 2010, focuses on concrete growth and innovation aims for the European internal market for the 2010-2020 period; it substantiates these aims through seven flagship initiatives. The development and organization of the Digital Agenda, for which Neelie Kroes, head of the Directorate General for Communication Networks, Content and Technologies (DG CONNECT) is responsible, is one of these initiatives. On the one hand, the Agenda endeavors to improve the technical components involved in Internet use, by, for example, making faster network access available and expanding broadband access; on the other hand, it plans on increasing support for services in the online sector. A second impulse comes from the Innovation Union initiative, which is the responsibility of Antonio Tajani, Commissioner of the Directorate General for Enterprise and Industry. It aims to improve the framework conditions and financial funding for research and innovation and to deliver on the European Research Area.

The initiative has its origins in the Ljubljana Process, which was devised by the EU to improve scientific exchange through strategic partnerships between Member States, associated states and the European Commission. Long-term goals include, among other things, establishing the free flow of knowledge as the “fifth freedom” on the European internal market and creating modern universities with competitive scientific specializations. Both of these goals are funded by the financial instrument Horizon 2020, which will invest an estimated total of €80 billion in financial resources from the Eighth Research Framework program and from innovation measures stemming from Strategy 2020; it was conceived and is governed by the Directorate General for Research and Innovation, which is headed by Commissioner Máire Geoghegan-Quinn. Ultimately, the Digital Agenda also includes europeana.eu, which is dedicated to making Europe’s cultural heritage accessible. Another component of the Agenda is the amendment of copyright legislation at the EU level; this responsibility falls to one of the most powerful EU directorate generals, the DG for Internal Market and Services, headed by French Commissioner Michél Barnier.

3.1. Open access to publicly financed research results

In 2007 the Commission first addressed the topic of open access to and online storage of scientific information in its communication “On scientific information in the digital age: access, dissemination and preservation.” This communication is to be understood as an appraisal that describes the key issues in and the first steps towards access, dissemination and storage of scientific research in Europe from an organizational, technical and financial perspective. In 2008 the Competitiveness Council (Internal Market, Industry, Research and Space) reviewed this communication and concluded with a request to the Commission to oversee exemplary procedures that allow free access to scientific output at the European level, give students and researchers access to scientific information and ensure this information is stored in specialized virtual public libraries. As regarded projects funded through EU research programs, the Council called on the Commission to experiment with open access models, support research in the area of digital storage and to work towards initiating discussion among stakeholders across Europe. Renegotiation of the European budget in the seven-year financial framework of the European Framework Program 2007-2013 (FP7), which funds research and technological development, made it possible to incorporate open access models. A clause was included in the contracts of recipients of European funding requiring them to publish research results in an online database within six months, or within 12 months for research in humanities and social sciences. In the 7th Framework Program this agreement applies to 811 projects, thus covering a total of 20% of the research projects funded by the framework program in the areas energy, environment, health, information and communication technologies, research infrastructure, science in society and socioeconomic and humanities research. Although the EU’s contractual partners were given the freedom to choose where and under what conditions the results would be made accessible to the public, the Commission recommends publication according to the “green” or “gold” open access model.

To assist in publication, the EU-funded portal OpeanAIRE (Open Access Infrastructure for Research in Europe) was made available; it provides mechanisms to help identify, store, access and monitor RP7-funded articles. In 2012 the Commission conducted a survey of recipients and contractual partners of the 7th Framework Program in an effort to evaluate the success of the pilot program and its online platform OpenAIRE and to gather additional input for Horizon 2020. Among other questions, the survey asked how well known the OpenAIRE platform was, and what concrete difficulties researchers encountered when attempting to publish their results online within the timeframe set by the Commission. The survey found that difficulties arise above all when researchers enter into actual negotiations with a publishing house or journal over an open access mandate: 75% of the respondents found it difficult to very difficult to fulfill their obligations and, at the same time, agree to a compromise with their publisher.

In preparation for Horizon 2020 the Commission conducted an impact assessment, a public hearing with stakeholders and online consultation. The Commission received 1,140 responses to the online survey from 42 countries. In particular, the focus was on questions concerning the current difficulty in accessing scientific articles and data: 84% of those questioned were of the opinion that there were accessibility problems, saying this was due to the high subscription prices of online journals and public libraries’ insufficient budgets. The Commission also received support when it came to the question of whether policy responses to open access issues should be formulated at the EU level (83%), and regarding the creation of an EU-wide network for storing articles online (86%). The results of the consultation process were integrated into the last published Commission communication on the issue “Towards better access to scientific information: Boosting the benefits of public investments in research” – not least in order to legitimate the formulation of policy responses at EU level. In this communication the Commission again pledges that scientific publications and data that are financed with public funds shall be made openly accessible:

The vision underlying the Commission’s strategy on open data and knowledge circulation is that information already paid for by the public purse should not be paid for again each time it is accessed or used, and that it should benefit European companies and citizens to the full. This means making publicly-funded scientific information available online, at no extra cost, to European researchers and citizens via sustainable e-infrastructures, also ensuring long-term access to avoid losing scientific information of unique value.

In this communication, the Commission calls for a series of measures that are legitimized through the Innovation Union, the European Research Area, the Digital Agenda and, last but not least, through the stakeholder consultations that were conducted while preparing for Horizon 2020. These measures are to be realized through a series of steps taken at EU level that rely upon strong cooperation between the Commission and Member States (explained to the Member States in the recommendation that accompanies the communication) , yet these measures do not lead to legally binding laws. National contact points are to be designated in the Member States by the end of 2012. In cooperation with these, a definition of concrete policies for dissemination of open access to scientific publications that result from publicly funded research is to be developed (aims, implementation strategies, financial planning). The implementation of policy initiatives is to be safeguarded by institutions that fund scientific research and by organizations that receive public support. In order to establish a Europe-wide online storage system the Commission will continue to develop e-infrastructures in the framework of Horizon 2020 and experiment with scientific data (methods of peer review and ways of measuring the influence of articles). This process should guarantee synergies between national and European e-infrastructures while also integrating itself into a multistakeholder dialog at the national, European and international levels.

3.2. European cultural heritage and access to public libraries

The objective of preserving European cultural heritage is a central tenet of European cultural policy. A drive for increased use of the Internet in this regard was set in motion by the 2003 Berlin Declaration and is associated with the decision by Google to digitize books on a large scale. To this end, Google succeeded in obtaining the cooperation of European national libraries, without the latter turning to existing European initiatives such as, for instance, the European Digital Library Network. In a joint letter, the then heads of state or government of Germany, France, Poland, Italy, Spain and Hungary called upon the European Commission to create a European digital library. Following a three-year launch phase, the web portal europeana.eu went online in 2008, with 2 million digitized works including books, maps, photos, paintings, films and music. Europeana is not a multilingual database of digitized works, but simply an access point for the previously digitized inventories of participating libraries and archives in Member States. As a result, the project’s success is dependent on equitable funding of national digitization projects.

This challenge is also mentioned in the Commission’s 2009 communication entitled “Europeana: next steps”, which sets out steps for the future aimed at the success of europeana.eu. These included the objective of digitizing 10 million works by 2010, which was achieved before the deadline. However, barriers to the success of the project remain: the type of content (mainly public domain content, unequal distribution of media, and dominance of a small number of languages and libraries), issues relating to works protected by copyright, and funding of the digitization process. This review was followed in 2011 by the Commission Recommendation on the digitization and online accessibility of cultural material and digital preservation, which makes similar recommendations as on the open access issue and advocates strengthened cooperation between Member States and the Commission. The communication calls for clear quantitative digitization objectives and the creation of overviews of digitized cultural materials. With the aim of expanding funding, the communication supports public-private partnerships in the area of digitization. The possibility of additional financial aid by recourse to EU structural funds is also proposed. In terms of content, improvements to access to material in the public domain and to framework conditions for material protected by copyright are called for. The main objectives identified by the Commission for Europeana in the communication are:

• 30 million digitized objects, including 2 million sound recordings, by 2015
• Funding for digitization made conditional on the accessibility of the digitized works through Europeana.
• Ensuring the accessibility of all public domain masterpieces by 2015
• Digital preservation: Creation of national strategies and networking across Member States
• Ensuring common digitization standards

3.3. Public sector information

2003 2003/98/EC Directive on the re-use of public sector information

2011 Commission communication “Open Data. An engine for innovation, growth and transparent governance”

2012 Publication of the proposal amending Directive 2003/98/EC on the re-use of public sector information

2012 Commission Decision on the re-use of Commission documents 2011/833/EU

In contrast to the EU’s activities in the fields discussed above, which focus mainly on “soft law”, in the field of public sector information (PSI) the EU has been able to take legislative action, as the Directive was justified on the basis of Article 114 TFEU on the establishment of the internal market. In 2003, Directive 2003/98/EC on the re-use of public sector information was passed, enabling regulation of a set of fundamental issues such as charges, response times for authorities, and stipulations for fair trading. However, in order to enable more effective utilization of the economic potential of these data and eliminate existing barriers such as high charges or insufficient implementation in Member States, in 2011, as part of the Digital Agenda, the Commission issued a communication in which it set out steps for the future. Two pieces of legislation are proposed: the first is the amendment to Directive 2003/98/EC, originally adopted in 2003 (proposal published in December 2011 ) and the second is the Commission’s self-commitment to lead by example with regard to its own administrative data, including those resulting from EU-funded research.

The Commission defines as public sector data geographical information, statistics, weather data, data from publicly funded research projects and digitized books from libraries, and mentions existing initiatives in these fields. Steps for the future involve support for data dissemination technologies at EU level and the Commission’s Open Data Portal, to be supported and funded under the Horizon 2020 program. With regard to the various costs involved, the Commission plans to determine an amount to cover distribution costs based on the principle that public bodies may not charge fees for the accessibility of data which exceed the additional costs caused by the individual request in question (“extra costs”). In practice, this would mean that most data would be accessible free or almost free of charge wherever the charging of fees cannot be properly justified. Cooperation with Member States and the Commission is to be ensured by the creation of a regulatory supervision body for enforcement of these principles. Support and coordination of Member States for the exchange of experience is planned in the form of a PSI group, the LAPSI network, and the ISA initiative for semantic interoperability. The Commission proposal is currently the subject of discussion between the Council and the Parliament; the competent European Parliament Committee on Industry, Research and Energy (ITRE) has resolved to adopt the legislative proposal at the first reading. This means that a large part of the compromises will be reached in a three-way discussion involving the Parliament, the Council and the Commission. Civil society organizations harboring concerns that the proposal could be watered down by the Council must combine their lobbying efforts.

3.4. Further planning

Overall, it is apparent that the EU has introduced important economic and technological steps as part of its growth strategy in order to improve access to various types of knowledge. However, DG Connect, which manages the Digital Agenda of the EU, is hitting its limits as regards its welcome and wide-ranging initiatives, as copyright law is determined by one of the most important and powerful directorates general, DG Internal Market and Services. Although ministerial staff numbers do not play a decisive role, personnel is not the only area in which DG Connect, set up during José Manuel Barroso’s second term as president of the European Commission and based in Luxembourg rather than in Brussels, is weaker than the powerful DG Internal Market and Services. Like the Digital Agenda, the topic of open knowledge cuts across several EU policy fields that hold various competences and limited EU funding and which, in the final analysis, represent very different interests. Despite its integration in a coherent European strategy concept, the credible implementation of the Digital Agenda, which has provided important impetus for access to knowledge, will only be successful if copyright law is adapted or harmonized. Conflict between DG Connect and DG Internal Market and Services is to be expected.

In December 2012, an orientation debate on copyright was held on Barroso’s initiative. The aim was to “guarantee effective recognition and remuneration of rights holders in order to provide sustainable incentives for creativity, cultural diversity and innovation; open up greater access and a wider choice of legal offers to end users; allow new business models to emerge; and contribute to combating illegal offers and piracy.” A stakeholder dialog chaired by commissioners Michél Barnier (Internal Market and Services), Neelie Kroes (Connect) and Androulla Vassiliou (Education) will start in 2013. The aim of the dialog is to tackle the most important problems such as the cross-border transferability of contents, user-generated contents, data and text mining, copyright fees, access to audiovisual contents, and cultural heritage. The findings of the stakeholder dialog will be presented in December 2013 and will influence the decision on which further political and legal processes should be undertaken. This process will be accompanied by market studies, impact assessment, and the drafting of legal texts regarding a decision on whether or not proposals for legislative reform should be implemented in 2014. The following four topics will be addressed simultaneously: adaptation to the impact of territoriality in the internal market; agreement on a suitable level for the harmonization; copyright limitations and exceptions in the digital era; and ways to improve the legitimacy of the implementation of laws in the context of a far-reaching copyright reform. On the basis of the findings on these topics, the European Commission will decide on the next steps needed to assess the EU copyright framework.

4. How organized interests can influence the process

Given the nature of the European Union as a multi-level governance system whose policies are drafted and implemented on the regional, national, and supranational level, there are many ways for organized interests and advocacy groups to get involved. This section describes how organized interests can influence the process from the EU perspective. This mainly involves the access channels for organized interests that result from the EU’s understanding of democracy. The EU created these channels in order to increase the legitimacy and transparency of its policy processes. Their creation was a response to the low representative legitimacy arising from low election turnout in European elections and the question of the European public sphere. Lobbying has increased steadily on the EU level, particularly since the expansion of the EU’s competences (at the latest under the Maastricht Treaty), and the extension of the European Parliament’s rights of co-determination. At the same time, lobbying has become negatively tainted in Brussels as a result of non-transparent practices (the registration of fake lobbies by companies, the lack of financial transparency, and direct involvement in the drafting of legislation and parliamentary reports). On the other hand, there is also the more general question of the above-mentioned stronger legitimacy by organized interests as regards the ratio of private-sector interests to public-sector advocacy groups which currently stands at around 2:1.

4.1. The functions of EU lobbying

On the conceptual level, lobby organizations’ most important tasks include:

• (early) monitoring of political processes of relevance to the organizations or their clients;
• analyzing the effects of possible new EU legislation on the work and vision of the organization involved;
• developing independent and recognizable positions, which are reliably communicated by the group’s academic staff;
• developing potential solutions.

This monitoring process is integrated into the development of a complex lobbying strategy, which is complemented by the practical level of lobbying activities. These activities include effective communication of the organization’s own interests via well-developed networks, statements, and discussion with similar advocacy groups. When this process is conducted successfully and visibly, the European Commission and the European Parliament often automatically consult certain lobby groups before or during the legislative process.

4.2 Institutional influence

The European Union is based on the principle of representative democracy (Art. 10, TEU). It has a double legitimacy in that EU citizens are represented directly by the members they elect to the European Parliament, while the Member States are represented in the Council and are accountable to their national parliaments. The Treaty of Lisbon expands the principle of representative democracy by adding a direct element – the European Citizens’ Initiative – and a participatory element (Art. 11, TEU), and ultimately includes a series of transparency measures.

1. The original role of national parliaments is to oversee the activities of the ministers who form one legislative organ – the Council – of the European Union’s legislative chamber, along with their 26 colleagues. The significance of these ministers and ministries means that public discourse on the shaping of national policy on the EU and monitoring by the Bundestag are required. However, I believe that the nation states underestimate the function of the legislative organ – and Germany is no exception here. Since ratification of the Treaty of Lisbon, additional democratic control of the legislation proposed by the Commission has been provided by the national parliaments through the principle of subsidiarity (Protocol 2 of the Treaty of Lisbon). According to this principle, the EU may only act where its measures are more effective than those of individual countries. Legislative proposals must be scrutinized according to the criteria of the subsidiarity principle in cases where this legislation is being proposed in areas of shared responsibility between the EU and its Member States and when parliaments submit a reasoned opinion to the Commission stating why they believe that the draft in question does not comply with the principle of subsidiarity within eight weeks of the date of forwarding of a draft legislative act; if “negative” reasoned opinions represent at least one-third of the votes allocated to the national parliaments, the draft must be reviewed. If the number of negative reasoned opinions to a proposal that is to be debated in an ordinary legislative procedure reaches a 50-percent quorum of the votes, the Commission has to issue a statement to the European Parliament and the Council justifying its proposal. On the basis of this statement and the statements by the national parliaments, the Council and the European Parliament may decide – with a majority of 55 percent of the votes – to terminate the procedure.

2. The European Parliament is the main target of lobbying activities on the European level. In the ordinary legislative procedure, which is now the standard procedure within the EU (usually in those policy areas with a Council voting procedure involving a qualified majority), the European Parliament plays an equal role in passing legislation. This complicated legislative procedure, whereby the Council and the European Parliament pass a law by incorporating proposed amendments based on Commission proposals, with up to two readings and one conciliation committee sitting, has brought about a situation whereby laws were passed after the first reading in over two-thirds of cases during the European Parliament’s past two legislative periods. When the Commission publishes a legislative proposal, this is simultaneously sent to the administration of the Council and of the European Parliament. The relevant committee of the European Parliament’s Bureau decides which of its members should select a rapporteur who will be primarily responsible for negotiating the proposed legislation in the European Parliament’s interests. This rapporteur is the most important person in the negotiations and draws up a report representing the European Parliament’s view. A committee finalizes the report, which subsequently forms the basis of negotiations with the Commission and particularly with the Council. As the European Parliament does not have its own research and documentation service, unlike the Bundestag, the rapporteur depends on the external expertise of advocacy groups. The development toward laws being passed after the first reading has been criticized by advocacy groups in particular, since this means that the Parliament’s position is negotiated with the Council, and it is thus more difficult for civil society organizations to acquire an overview of the conflicts and compromises involved in the negotiations. In a special legislative procedure under Art. 289(2), which has also included the Council’s non-legislative procedures such as multinational trade agreements like ACTA since ratification of the Treaty of Lisbon, the European Parliament only exercises a right of veto on Commission or Council laws.

3. The European Citizens’ Initiative (ECI), which was introduced under the Treaty of Lisbon, is a new way of increasing direct democracy in the EU. If enough citizens join forces (one million from at least seven different EU countries), they can call on the Commission to enact legislation. The citizens’ proposal must relate to a policy area for which the EU is responsible. The proposal by several environmental organizations to stop the use of nuclear power in Europe, for example, was rejected by the Commission with the reason that the Euratom Treaty, which specifically promotes nuclear power, prohibits the establishment of a citizens’ initiative against nuclear power. On top of that, Art. 194(2) of the Treaty on the Functioning of the European Union states that each Member State is in charge of making its own choice between different energy sources. The shortcoming of ECIs is that they only have the power to call on the Commission to make a change; the Commission is not obliged to accept an ECI’s proposal. But reasons do have to be given for rejections. Theorists therefore suspect that the Commission is more likely to decide in favor of proposals that have very wide-ranging support throughout Europe.

4. The Prodi Commission (1999-2004) was dedicated to the principle of “better legislation”. Since the mid-1990s various guidelines have been adopted. These guidelines, inspired by Anglo-Saxon traditions, were supposed to make EU laws more effective and more transparent. In 2009 the Commission adopted Impact Assessment Guidelines as a summary of all guidelines within this area to date. Today, most of the Commission’s legislative proposals have to include an impact assessment of the desired and undesired social, economic, and ecological effects of new standard EU legislation. In preparation for the assessment, the Commission conducts public consultation in the form of online polls or surveys of stakeholders from business, research and academia, and civil society. These consultations represent an important point of access for organized interests. The French organization La Quadrature du Net, for example, took part in a public consultation on the Electronic Commerce Directive and published its views on its website. Lobbyists can take advantage of this very visible way of making their views known. Greenpeace has been particularly successful in this regard. One disadvantage, however, is that through its selection of issues, the Commission is erroneously assigned competences by the European public to which it is not entitled. In the case of “free knowledge”, this became particularly evident in the area of open access to publicly funded research. Over two-thirds of respondents spoke out in favor of the Commission having a role in the drafting of European policy and the setting up of an online storage system.

5. Like the national data protection officers, the Ombudsman for the European Union serves as a link between EU citizens, businesses, and European administrative associations. He investigates complaints about maladministration at all levels of European administration, with the exception of the European Court of Justice. This includes checking the independence of EU personnel. Here too, organized interests could help to resolve maladministration. An NGO from Brussels, for example, contacted the Ombudsman for the European Union about doubts on the impartiality of ECB President Mario Draghi.

4.3 Types of organization

Research generally distinguishes between three types of organization that represent either civil society interests or functional interests when exerting their influence on European political processes. These differ with regard to the nature of their interests, their financial resources and the duration of their lobbying activities.

4.3.1 Associations

Associations and umbrella organizations - like for instance European Digital Rights (EDRI) - can be understood as alliances of various national and regional organizations at European level that aim to influence European legislation in political or technical ways. Michalowitz lists the advantages and disadvantages of associations. At European level, associations actively represent all the interests of their members. Depending on their focus and number of members, they can have huge representative clout, gain access to decision makers in the institutions, and establish a dialog with them. They prepare information for their members and provide them with a communication platform. At the same time, associations represent the compromise positions of their members. Part of their work therefore involves internally agreeing on the compromises the members are prepared to make and setting out the mechanisms for achieving them. Greenpeace and Friends of the Earth, an NGO funded by the European Commission, are examples of very active organizations that raise awareness through their campaigns and statements on current EU issues.

4.3.2. In-house lobbyists

The decision to post in-house lobbyists and liaison offices in Brussels is usually ascribed to weakness of the European umbrella associations. As it is mainly economic interests that are represented in this way, lobbyists employed by a national company take on special monitoring tasks for employers in connection with the national actors in the institutions and associations. They therefore represent the particular interests of their client, in addition to mediating between the European associations and their clients. To best represent the interests of their clients and to justify the true added value of an office in Brussels, companies often develop an overarching corporate strategy at national and European level.

4.3.3. Public affairs consultants

Public affairs consultants do not represent their own interests, but carry out campaigns on behalf of clients. They are often highly specialized agencies working within the policy-making process in Brussels, allowing them to carry out short-term targeted campaigns on behalf of their clients (for example, for a legislative initiative). In doing so, the agencies generate their own knowledge capital via the information and insights accumulated on behalf of their clients and the insider knowledge they acquire. They can then use this knowledge for later commissions in a way that is not immediately transparent for their clients. Public affairs consultants compete with numerous other agencies in Brussels.

5. Summary

The activities and regulatory efforts so far undertaken at European level in the field of free knowledge have been described here on the basis of the definition of the term by the Open Knowledge Foundation, which is the only comprehensive definition available to those engaged in the political and legal discourse. The European Union proved its commitment to open knowledge at the very latest when it integrated open access policies into two of the seven flagship initiatives of the Europe 2020 long-term growth strategy. Very importantly, it is also setting a good example in the way it makes its own data and findings from EU-funded research and administration accessible. However, progress is restricted due to the way competences are distributed in the relevant policy areas, the low level of funding at European level, and the outstanding need to adapt or harmonize copyright law. It is clear just from the Commission’s activities described here that there are many ways in which organized interest groups can engage with the development and implementation of these policies.

The main option here is consultation with citizens via stakeholder meetings and online surveys, which can be conducted even without a liaison office in Brussels. Several measures can be recommended to Wikimedia to help it to influence the shaping, regulation and implementation of European policy in future. These include

• analysis of existing initiatives and institutions in this field and effective networking with those pursuing the same aims at national and European level. They should work both independently and together to make better use of the Commission’s consultation offers (La Quadrature du Net serves as a role model here) in order to sustainably position themselves as a civil society organization that contributes to the political process.
• Given the Europe-wide structure of Wikimedia, a European Citizens’ Initiative (ECI) would also be an option for exerting influence at European level. Due to the very precise stipulations involved, such an initiative would have to formulated in such a way that it can pass through the Commission’s official review process while at the same time securing Europe-wide support.
• It is only worth Wikimedia being permanently present in Brussels if there is a high legislative turnover in the policy areas in question. In this context, the entire Digital Agenda (to view, see the Commission’s Scoreboard and plans relating to the Innovation Union should be assessed in terms of their relevance to Wikimedia’s objectives.
• The culture and education sectors receive limited funding at European level and, at present, still lack legislative competences. Networking with the liaison units that are intended to ensure the implementation of soft law agreements at national level is therefore highly significant in these policy areas. The failings and omissions in implementing European cooperation agreements could ultimately also serve as an argument for integrating policy fields at EU level.