Free Knowledge Advocacy Group EU
EU Copyright Reform 2018
What is happening?
Since the digital reality and a copyright legislation written with the analog world in mind aren’t always compatible, the European Commission has proposed to update and to harmonise some aspects of online access to information and knowledge in the EU. According to the legislator, the emergence of new services, possibilities to share information, and increasing use of machine learning to extract knowledge calls for a revision of the legal framework of European copyright law. We share this view.
What is missing
- The reform doesn’t ensure cultural heritage stays in the public domain when digitised.
- It also fails to implement a minimum level of freedom of panorama across the Member States and to clarify the legal status of user-generated content.
- For educational materials, instead of ensuring all educators in all settings from formal education to informal learning can access copyrighted content freely, the proposal envisions a patchwork of licenses that require considerable expertise from teachers.
Which parts of the proposal would be harmful
Mandatory pre-filtering by platforms that host user-generated content (see Article 13 of the proposed Directive)
These measures are intended to strengthen rightsholders vis-a-vis platforms. It’s meant to help prevent infringements before they can even appear online (as opposed to the retroactive takedown we have now) and help enforce new mandatory licenses for that content.
Aggregating information from news sources (see Article 11 of the proposed Directive)
This is meant to give news publishers their own type of intellectual property, on top of the authors rights they acquire from their journalists, to in the end expand the publishers’ revenue by a way to charge news aggregators for using publishers’ brands and snippets.
If implemented, not only would these mechanisms further fragment copyright across the EU but they would also constitute an additional barrier to access to knowledge, culture and information.
What are the next steps?
The proposal for the Directive on Copyright in the Digital Single Market (a.k.a. DSM Directive or colloquially “EU Copyright Directive”).as proposed by the European Commission has been discussed in parallel in the Council of the EU and in the European Parliament. The Council has decided on changes to be introduced in further negotiations, while the European Parliament will debate the amendments to the EC’s text during the Plenary Session in September or October. In July the European Parliament rejected the text proposed by its own Legal Affairs Committee and decided to hold the Plenary debate on the proposal. Members of the Parliament will be able to propose amendments to the European Commission’s version until September 5th. Then, presumably on September 12 the European Parliament will vote on those amendments. After the EP vote, the two bodies of the EU together with the European Commission will enter negotiations to agree on a joint version of the Directive that will then again have be accepted by means of a plenary vote.
As voters we have considerably more power to influence the MEPs choices than in the case of the European Commission or the Council of the EU. It is in our hands to point them to those amendments that ensure access to knowledge, with an expectation that they will take our voice into account.
Why is the proposal harmful to Free Knowledge?
Depending on the exact wording that comes out of the notoriously intransparent Trilogue negotiations between the European Commission, the European Parliament and the Council of the EU, the new law could negatively impact Free Knowledge in several ways:
- Mandatory pre-filtering (Article 13) of user uploads to platforms could lead to widespread overblocking and restricted access to knowledge on fewer platforms
- ...it would complicate the flow of information and thereby damage free speech and the exchange/communication around collecting, building and curating Free Knowledge in general
- ...it would put additional burden on all kinds of non-profit knowledge projects, including WP and the entire citizen science field
- A new press-publishers right (Article 11 of the reform) would make even smallest parts of text content rights protected
- ...it would thus produce a myriad of grey area cases where pointing to press content might or might not require a license
- ...and this could hurt especially knowledge projects, as they rely on referencing being as easy and safe as possible
In addition to that, the current status of the legislative proposal(s) for the new law features only minimal positive change for Free Knowledge, see below the section on positive change.
Are Free Knowledge projects at risk? If yes, how?
Regarding Article 13 (pre-filtering obligations):
Yes. Two of the three current versions of the reform proposal (the ones of the European Parliament and of the Council of the EU) contain wording that excludes “online encyclopedias” i.e. for Wikipedia from the obligations of implementing pre-filtering measures or entering into license agreements with rightsholders.
However, related projects, like the multimedia archive Wikimedia Commons, that provides images to Wikipedia, are not as clearly exempted. Although non-for-profit, with such confusing wording Courts might interpret the character of Wikipedia’s sister projects as commercial in regards to pre-filtering obligations. Similar court rulings have happened already with regards to freely licensed content used by public broadcasters. There, the content was offered for non-commercial use only and the broadcaster, even though publicly funded and without any profit-making mission, was deemed to observe the rules for commercial players nonetheless.
Regarding Article 11 (press-publishers right):
Yes. This right is meant to give publishers the right to control the use of news snippets + brands (i.e. the news outlet’s name, such as the name of a newspaper or magazine) and to monetise it, for example against news aggregators and search engines, usually Google News and Google Search are mentioned.
For this right, no “special Wikipedia exception” is proposed so far.
It is triggered whenever even the tiniest part of news publisher content is shown on a website, for example a headline, name of the newspaper and/or the first words of the respective newspaper article.
According to our assessment, annotated bibliographies including those in Wikipedia would trigger the new publishers right, or at least would require individual legal checks whether they do or not.
Supporters of Free Knowledge should make sure that those risks are removed from the proposal.
Can there be positive change?
Yes, here’s the hot list of what we want to make better:
- Safeguarding the Public Domain: A clarification that exact copies of public domain works do not get new copyright protection. → This included in a curbed version compared to what GLAM activists and WM put forward
- A Freedom of Panorama exception → Is currently not included, only a general “recommendation” in by-texts.
- Education Exceptions extended to online uses → This is currently in the text, but scaled back to a bare, unambitious minimum.
- A user-generated content exception → Is currently not in the text, although it would make sense in a communication environment that is increasingly driven by images rather than text. This would function similar to an “audiovisual quotation”.
What are the Wikimedia organisations doing?
Since the initial introduction of the European Commission’s proposal, Wikimedia has expressed our desire for the newest EU Copyright Directive to support access to knowledge and creation online. We have encouraged positive amendments to the Commission document which would codify freedom of panorama for all of Europe and safeguard the public domain. We have also expressed concern about upload filters , which could harm free knowledge online. The Wikimedia Foundation Board of Trustees also released a statement outlining their vision of a modern copyright for Europe.
The Wikimedia communities have also taken action against the Legal Affairs Committee’s flawed proposal: organising protests, writing op-eds, and asking European users to contact their MEPs before the last vote.
Should I/we take action?
Yes. Lobbyist groups claim there would be a automated spam-campaign going on. Showing your individual support of Free Knowledge projects counters this argument. It may be a very brief mail, a call, an article or statement via social networks which helps a lot.
What can we do?
It is important that MEPs know that the direction of copyright in Europe is important to people like you who use the internet every day to create, interact, and share your knowledge. You can help by translating and sharing information materials in your language, sending an opinion piece to media in your country, contacting MEPs from your region with suggestions for positive amendments, or participating in events in Brussels and Strasbourg.
How to coordinate?
Our Brussels team, Anna and Dimi, can be reached at eupolicywikimedia.be, the WMF is available at policywikimedia.org.
We have issue specific leaflets on Freedom of Panorama, Safeguarding the Public Domain and Intermediary Liability that can help your campaign actions.
The source files and a printing budget are available at eupolicywikimedia.be.
Positioning by Chapters and User Groups
NB: Most of these are written with only the European Commission proposal in mind and might not reflect the latest developments in the European Parliament.