Problems remain with the EU’s copyright reform

It was almost exactly five years ago that a reform of EU copyright was included in the European Commission’s list of priorities. The setting of that priority was followed by several public consultations, countless public events, and many face-to-face meetings. In 2016, the Commission made a proposal for what this reform would look like. Since then, the two legislative chambers of the European Union, the Parliament and Council, have been discussing, drafting, and amending to try to agree on a single reform. In September 2018, the Parliament voted on a final draft of the reform, which allowed the proposal to move into one of its final phases: the trilogue. The trilogue stage, in which the Parliament, Council, and Commission seek compromise between their three proposals in closed-door negotiations, is where the reform sits currently.

While we still can’t be absolutely sure whether the reform will be concluded before the European Parliament’s elections in May 2019, by now we know the general direction of the first major EU copyright readjustment in 18 years. The proposed reform includes some protections for access to knowledge, including greater access to public domain and out of commerce works, but also contains some seriously problematic provisions that threaten many ideals central to the Wikimedia movement. Articles 11 and 13, which respectively establish a news publishers right and liability on platforms for user uploads, will harm freedom of expression across Europe and impede the development of free knowledge resources like Wikipedia in the future.

So, as the terms of the current Commission and the Parliament in Brussels are drawing to an end, it is a good moment to reflect on its impact on access to knowledge and information—both key parts of our 2030 strategy.

Here’s what’s beneficial in the reform

Safeguarding the public domain

The public domain, which allows for the free use of works that are not in copyright, is an important pillar of free knowledge, creativity and innovation. With more works entering public domain each year, it is also an indispensable counterweight to exclusive rights on intellectual property. Yet, unlike exclusive rights that enjoy a robust enforcement regime, the public domain is not adequately protected. This is going to change with this reform. The European Parliament and the Council have agreed that faithful reproductions of public domain works will also be in the public domain,  which ensures that the original works will remain in the public domain as well. This will prevent legal battles and uncertainties like in the Reiss Engelhorn Museum lawsuit, and will enable an easier incorporation of rich public domain works to Wikipedia and its sister projects.

Opening up out-of-commerce works

Museums, archives and libraries hold many works in their collections that are no longer commercially available, but also not yet in the public domain. In many cases, the rightsholders are not easily found and thus these works remain in the repositories, not digitised and therefore not available online. The EU copyright reform will help remedy that. Cultural heritage institutions will have a straightforward way of giving online access to such works either by applying collective licensing or through a fallback exception. This will help shrink the “20th century black hole” and will allow projects like Wikipedia to at least point to digital copies of such works online.

Here’s what was missed

For those who have been following Wikimedia’s efforts in public policy, it will not come as a surprise that we deeply regret the European legislature not having included EU-wide exceptions for freedom of panorama and user-generated-content in the reform. In both cases technological advances have made an update to the law necessary, and supporting majorities of votes in Parliament were possible. It is difficult to understand why such obvious limitations and exceptions that contribute to lifting barriers to access to knowledge were not supported either by a majority of Members States or Members of the European Parliament. Such changes would have brought the law in line with everyday practices of European citizens, and would have also harmonised the rulebook across the continent. Even though updating and harmonising copyright were the two main policy goals stated by the EU, the legislators have chosen to maintain the “national silos” they made a priority to eliminate through copyright reform.

And here’s what’s problematic

Changes in liability of platforms and content filtering (Article 13)

One of the most dangerous of the proposed norms in the reform is Article 13, which creates liability for websites that host user-generated content, if they are unable to ensure that infringing works are not re-uploaded to their sites. Though nonprofit platforms like Wikipedia were eventually exempted from this provision, it has the potential to curtail the free flow of information we rely on. Additionally, mandating a massive roll-out of content filtering infrastructure across the internet hugely increases the likelihood it will be used for censorship.

Yes, many online platforms occupy a powerful role in the internet that needs to be examined, and changes to the internet ecosystem may be inevitable. But this particular proposed change, we fear, strictly mandates the removal of content while only marginally addressing user rights and the functionality of copyright exceptions. The content filtering requirement, whether explicitly worded or imposed by the imminent liability risk, will enshrine the role of platforms as the primary judges of free speech. And the argument that we are “only” talking about copyright infringements here is not valid. We already see this very same approach working its way into other proposals attempting to combat harmful content, such as the proposed regulation on preventing dissemination of terrorist content online. If that should be the legacy of the lengthy copyright debate, it would be better if Article 13 is deleted entirely from the directive.

News publishers right (Article 11)

After similar rights proved to be ineffective both in Germany and Spain, news publishers pressed hard, to get their own “copyright-like” rights protection on the EU level. This protection would allow them to sell licenses for even the smallest snippets taken from online news sites. If no license fee is paid, the snippets would need to be removed from the search results and news aggregation lists. If this new right were also to apply to the title of a news article, millions of references in Wikipedia articles would enter a legal grey zone, where it is unclear whether licenses are needed for such referencing. Besides damaging Wikipedia and Wikidata, which contains items such as “title” and “excerpt” of text sources, it could affect every reference collection online that contains references to news articles. It remains to be seen whether the new publishers right will ultimately be introduced and if so, whether it will at least feature an exception for mere titles of news pieces, leaving collections of references in limbo.

Education exception

The education exception allows educators to use copyrighted content as long as it serves a teaching purpose. This proposal for a mandatory exception, however, allows members States to apply licenses on certain types of content – meaning that with broad licensing schemes the exception could be rendered ineffective. If this is the solution, we would prefer the broad existing education exception from the InfoSoc Directive to be made mandatory. The new exception will only make the situation worse in those countries that already have a wide education exception in place.

So what’s the bottom line?

After five years of public debate about reforming copyright for the EU, which was both time and energy consuming, the free knowledge movement cannot be satisfied with what we are facing. Safeguarding the public domain for visual works is a leap in the right direction, and simplifying the use of out-of-commerce works by cultural heritage institutions is a small but helpful step. However, these two improvements come at the cost of a new, exclusive right that will complicate the sharing of news content. Additionally, content filtering means a huge shift in liability of platforms. This can result in over-policing users’ activity online, which in the future could be extended to other forms of speech and bring internet censorship by private entities. Furthermore, the education exception threatens to limit currently free uses of content by teachers that many member states allow.

The current copyright reform will only modestly improve access to knowledge online. Instead it will likely restrict it. It also is a far cry away from achieving the Commission’s own ambition to “break down national silos.”

All these reasons are why Wikimedia, as things currently look, cannot support the EU’s proposed copyright reform.

Dimitar Dimitrov, Free Knowledge Advocacy Group
Allison Davenport, Technology Law and Policy Fellow, Legal

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