EU policy/Issues overview

The issues overview aims at listing all ongoing regulatory processes in the EU system that are relevant to Wikimedia movements projects.

Process	Likely to significantly affect Wikimedia projects?*	Our ability to influence the outcome*
The Proposed Data Protection Regulation	1	2
CETA	1	1
TTIP	1	1
Connected Continent legislative package	1	2
Copyright Reform 2015/Freedom of Panorama	3	3
Copyright Reform 2015/Copyright Exceptions and Limitations(excl. Freedom of Panorama)	2	2
Copyright Reform 2015/The Legal Status of Links	2	2
Copyright Reform 2015/Registration of Works and Terms of Copyright Protection	3	1
Copyright Reform 2015/Public Domain Status for Publicly Funded Works	2	2

*Valued on a scale 1-3. The values can change as new information emerges.

The Proposed Data Protection Regulation

In 2012, the EU Commission put forward a proposal for a new Data Protection Regulation to replace the current Data Protection. The purpose was to further harmonize data protection in EU countries and to strengthen certain privacy-related rights, such as the right to be forgotten.

On May 13, 2014, the European Court of Justice made a ruling extending the reach of the current Data Protection Directive.

Regarding the right to be forgotten, the ECJ ruling makes a distinction between on the one a linked web site and on the other hand a linking search engine. One difference, according to the court, is that search engines can provide profiles of individuals. Another difference is that the linked web site can be solely for journalistic purposes, in which case the free-speech factor weighs in more heavily. Furthermore, the purpose of the indexing differs from the purpose of publishing the source material, and the spreading of data through a search engine can be of greater consequence to the individual.

The ECJ decided that in the case at hand – which concerned a Spanish citizen's personal economic state in 1998 – the fundamental right to privacy overrides internet users' interest of having the information searchable. In addition to the Data Protection Directive, the court references the charter of fundamental rights, article 7 on the right to privacy and article 8 on data protection.

The court makes no reference to the charter's article 11 on freedom of expression and information. Instead it describes free speech and the freedom of information merely as interests.

On a more general note, a journalistic exception gives the media a right to use personal data that would otherwise be off limits. Reason 121 of the proposed regulation states that the definition of "journalistic" activities should be broad. A website should qualify if the purpose of its activities is to inform the public:

In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly. Therefore, Member States should classify activities as "journalistic" for the purpose of the exemptions and derogations to be laid down under this Regulation if the object of these activities is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They should not be limited to media undertakings and may be undertaken for profit-making or for non-profit making purposes.

Timeframe and Current Status

Since the proposal was tabled in 2012 it has gone through the first reading in the European Parliament. In its decision, the EP stressed that the protection of personal data should be strong and that internet users should be empowered through clear information from data processors. It should be as easy to be erased from a database as it is to enter into it.

At the moment, the council is negotiating a position in the first reading, pondering the ECJ ruling and its effects on the negotiated new Data Protection Regulation. Some Member States have expressed concerns that the right to free speech is at risk.

Effects on Wikimedia projects

The Data Protection Directive does not mandate search engines to notify Wikimedia or any other web site owner when a page is delinked based on certain keywords. Therefore, it is not possible to know the number of delinkings to Wikipedia or to other Wikimedia web sites. Google has, however, voluntarily informed Foundation when delinking web pages.

Whether the ECJ ruling and the new Data Protection Regulation will result in large-scale delinking to Wikimedia websites is difficult to predict.

The journalistic exception should be sufficient as a general protection of the right to publish personal data on a site such as Wikipedia.

CETA

The Comprehensive Economic and Trade Agreement (CETA) is a proposed international treaty between the European Union and Canada. The negotiations are concluded, and the resulting document has been publicly released.

Based on leaked documents throughout the negotiations, digital rights organizations have suspected that the trade agreement would include controversial copyright provisions taken from the rejected ACTA agreement.

The feared copyright provisions of CETA have, however, not become reality. Michael Geist, Professor of Law at Ottawa University, has stated that "while there remain reasons to criticize CETA – [...] – the copyright provisions are not among them."

Timeframe and Current Status

The European Commission's information about the CETA status, updated 2014-09-26:

The five-year-long CETA negotiations ended in August 2014. The Commission's lawyers are now reviewing the text of the agreement. Once it has been translated into all EU official languages, it will be discussed in the EU Council and the European Parliament. For full transparency towards EU citizens, the text of the agreement has been made publicly available at an early stage of the debate. Providing both the Council and European Parliament approve the agreement in 2015, it could go into effect in 2016. This also assumes that Canadian law makers approve the text.

Effects on Wikimedia Projects

Likely none.

TTIP

Just like the CETA agreement, the Transatlantic Trade and Investment Partnership (TTIP) has been suspected of secretly bringing back IP provisions from ACTA.

The European Commission states that it respects the positions taken by the European Parliament through the rejection of ACTA. The Commission confirms, however, that copyright will be one element in the trade agreement.

Timeframe and Current Status

The European Commission's information about the current status of the ongoing TTIP negotions, updated 2014-11-12:

The actual talks will probably last a couple of years. After that, the agreement will have to be approved on the EU side by the European Parliament and all the EU Member States and for the Americans by the US Congress. [...] The Commission negotiates on the basis of guidelines agreed by the Council, where the governments of all EU Member States are represented. The Commission's Trade Department is in the lead. It works closely with other Commission departments, especially those dealing with the areas that are the main focus of the negotiations.

Transparency

A problem facing anyone who wants to follow and influence the TTIP negotiations is the secrecy. The behind-closed-doors policy is nothing unique to the TTIP but rather an unfortunate practice in international trade negotiations. While the Commission stresses that they keep the Members States and the European Parliament informed and that it continuously "reaches out" to representatives of civil society, it defends the decision to keep the negotiations secret from the public:

For trade negotiations to work and succeed, you need a certain degree of confidentiality, otherwise it would be like showing the other player one's cards in a card game.

In the course of the negotiations, though, the European Commission will continue to reach out to trade associations, consumer organisations, industry and other representatives of civil society.

The European Commission will keep the Member States – in the Council – and the European Parliament informed of developments. At the end of the negotiations, it is these two institutions – the Council containing representatives of Member States' governments and the directly elected European Parliament – that will approve or reject the agreement.

Effects on Wikimedia projects

Due to a lack of transparency, we currently don't know whether any of Wikimedia's projects will fall within the scope of the agreement's copyright section. What we do know is that regardless of the substance of the agreement, the secrecy in itself stands in the ways of Wikimedia's ambition to provide relevant and correct information on a topic which is certainly of interest to the public.

Connected Continent legislative package

The Connected Continent Regulation was tabled by the Commission in 2013 to amend the current Telecoms package. The EU Commission's ambition with the proposal is:

• to make it easier for ISP:s to operate across borders
• to increase wireless data capacity
• to phase out roaming charges
• to encode net neutrality in law
• to introduce stronger consumer protection on the broadband market

Timeframe and Current Status

The Commission presented the Connected Continent Regulation in September 2013, and the European Parliament finished its first/single reading in April 2014. In its decision, the EP stresses, among other things, their commitment to pass far-reaching net neutrality laws. Currently, the regulation is in the hands of the council.

The council's discussions on net neutrality will focus on the Presidency's proposal to define "specialized services" more broadly. Specialized services are services that will be allowed to operate at speeds exceeding those of regular services on the open internet, as long as the speed of these regular services is not compromised.

Effects on Wikimedia projects

As a general point of view, any policy that improves the general function of the Internet can be expected to benefit Wikimedia as provider of a free, collaborative online services.

The part of the package which has received most attention is the proposed net neutrality, which is unlikely to directly affect Wikimedia's activities. The project Wikimedia Zero should not come in collision with the proposed EU legislation.

Wikimedia Zero, being an effort to bring neutral and correct information to internet users who could otherwise not afford the data-traffic costs, has not been adopted on any market within the European Union. It also appears that zero rating does not, at least in the eyes of the previous Commission, qualify as a net neutrality issue in the context of EU legislation.

Copyright Reform 2015

Harmonizing European copyright policies will be a top priority for the Juncker Commission. Upcoming reforms will be based on the public consultation on EU copyright that took place 2013-2014.

According to a letter from President of the Commission Jean-Claude Juncker and First Vice President Frans Timmermans to their colleagues in the Commission, a proposal on copyright reform could be produced within the first six months of the new Commission's tenure. Later, the Commission has announced a strategy paper in May.

Freedom of Panorama

Panorama freedom is the freedom to use buildings and art permanently placed public locations without copyright restrictions.

The Infosoc Directive's article 5, 3(h) gives EU Member States a choice on whether they want to include the freedom of panorama exception in their national legislation. EU member states have implemented freedom of panorama in a variety of ways, which has created a legal situation which is difficult to overview. Some include only the right to freely use images of architecture while sculptures are off limits. Some include public interiors while others don't. Some include commercial use while others don't. A number of countries have no freedom of panorama at all.

There are also differences in regards to whether the photographer's location when shooting the picture matters.

Timeframe and Current Status

Freedom of panorama is not explicitly mentioned in the questions that the Commission asked in its latest public copyright consultation. However, the Commission included a more general section on copyright exceptions, and WMF along with other Wikimedia entities have used this opportunity to highlight freedom of panorama.

In December 2014, the European Parliament started the work on an own-initiative report evaluating the current copyright directive, the Infosoc Directive from 2001. This report will be an important input to the Commission.

Point 16 in the original draft report by rapporteur Julia Reda calls for the Commission to address Freedom of Panorama:

"16. Calls on the EU legislator to ensure that the use of photographs, video footage or other images of works which are permanently located in public places are permitted;"

In the EP negotiations on the report, Members of Parliament have proposed limiting the European freedom of panorama by attaching a non-commercial condition to the use of such photos. We are currently working to ensure that any such conditions will not be a part of the final report.

Effects on Wikimedia Projects

The freedom to publish images of public spaces is crucial to Wikipedia, Wikimedia Commons and other Wikimedia projects. A simple, harmonized EU regulation would simplify the process of determining which photos are allowed.

The great majority of Internet users, whether Wikimedians or not, cannot be expected to be copyright experts. Neither can we expect Internet users to engage in in-depth research before doing a simple task like uploading a photo of a public street.

To demand that an online service provider controls every photo uploaded by users requires a lot of time and resources that could otherwise be used more productively. Therefore, a fully harmonized and mandatory EU exception for images of public spaces would be a substantial improvement.

The Legal Status of Links

In its public consultation the Commission asked whether links should be subject to permission from those holding the rights to the material at the destination website:

"Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorization of the rightholder?"

Today, links to information on another website do not require authorization from the right holder if the right holder through the linked website is already sharing the information with the public. Authorization is only required when the link makes available information that is otherwise kept from the public, for instance by paywalls.

Linking to material published on the Internet without the consent of the right holder has, however been found illegal when tried in court in Europe.

Timeframe and Current Status

The freedom to link without the authorization of the right holder has its own section in the EU Commission's recent consultation, but radical change seems unlikely.

Effects on Wikimedia Projects

Wikimedia's linking policy bans links that may for any reason be illegal. Changes that affect Wikimedia in any significant way are unlikely to come out of the copyright reform. However, since linking source material is a crucial need on Websites like Wikipedia, the issue is worth keeping an eye on.

Registration of Works and Terms of Copyright Protection

The European Commission asks in its consultation whether an EU wide register would help in identifying and licensing works. The question should probably not be viewed as an invitation to discuss mandatory registration – a model which would largely be incompatible with the Berne Convention. However, as WMF points out in its answer to the Commission, an option allowed under international treaties and conventions is to require registration for works whose authors have been dead for more than 50 years if the copyright protection is to continue.

The EU Commission also invites a discussion about the length of the terms, noting that EU copyright extends an extra 20 years in addition to what the Berne Convention requires. During these additional 20 years the works in question can neither be enjoyed by consumers nor serve as building blocks for derivative works without right-holder authorization.

It is difficult to determine the value of adding 20 years of works to the public domain. There have been studies, though, attempting to assess the value of open access to public information in more narrow contexts. For instance, a study ordered by the European Commission in 2000 found that while the U.S. spends about twice as much as the EU on producing Public Sector Information(PSI), the non copyrighted U.S. PSI generated more than ten times as much economic value.

Timeframe and Current Status

Changes in copyright terms as a result of the upcoming reform seem improbable. There is little pressure on the Commission to change the length of the term in either direction.

Calls for shortening copyright terms, while reasonable, would meet massive resistance from right-holder groups.

Effects on Wikimedia Projects

While the terms of copyright and related rights are highly significant to Wikimedia's projects, the upcoming copyright reform will probably not change much in this respect.

Copyright Exceptions and Limitations

International treaties allow for exceptions from the requirement to get right-holder authorization to use a work if the use does not interfere with the right holder's right to normal exploitation of the work.

The European Union's current Copyright Directive lists one mandatory exception, an exception for temporary storage as part of transmitting a work, and a number of exceptions that are voluntary for Member States to implement.

Most of the exceptions exist to facilitate public goods such as archiving, education, news reporting and political speech.

The list is exhaustive, so member states are not allowed to add exceptions of their own. They do, however, have some room to implement exceptions in their own way which means that the legal situation can differ between two EU countries even when they have both implemented the same exception.

Some of the voluntary exceptions are associated with an obligation to compensate rights holders, which is done with schemes such as the private levy.

Timeframe and Current Status

With an upcoming copyright reform focused on harmonizing the digital single market, harmonized exceptions seems logical.

It is an open question how far the Commission is determined to push the harmonization given widespread resistance from publishers and other rights-holder groups.

The Commission asked in its public consultation whether compensation to right holders should be a requirement when implementing certain voluntary exceptions in national law. If the Commission proposes to harmonize them it could mean one of three things:

(1) The exception becomes mandatory along with the right to compensation. (2) The exception becomes mandatory while the compensation remains voluntary or is abolished. (3) The entire exception is abolished.

Any of these scenarios would cause rights-holder compensation to be a hot issue. The controversy that harmonization of these exceptions would arise may make the Commission more inclined to leave the issue alone.

Effects on Wikimedia Projects

As stated in the WMF response to the public consultation, the variations among member states in how they have implemented the Copyright Directive creates a complexity that could discourages creativity when then aim should be simplicity that encourages creativity.

Further harmonization would seem to be preferable. However, it is important to ensure that harmonization does not come with new mandatory limitations of current exceptions.

Public Domain Status for Publicly Funded Works

Publicly funded works are a valuable resource whose use benefits both commercial and non-commercial interests. When a work is funded by the public, the incentives to create are not an issue and therefore the goal should be to maximize availability. The EU has already adopted a Public Sector Information directive(PSI directive), which regulates member countries obligation to release such material for re-use.

While it is not clear whether a revision of the PSI directive is part of the Commission's plan for the reform of the Digital Single Market, the issue of publicly funded works is on the agenda.

Timeframe and Current Status

The EU Commission will address the value of big data in an upcoming strategy document. Whether data originating from the public sector will play a central role remains to be seen. In the European Parliament, the Reda draft report "recommends that the EU legislator should further lower the barriers for re-use of public sector information by exempting works produced by the public sector - within the political, legal and administrative process - from copyright protection."

The recommendation has, however, encountered resistance from the large groups in the European Parliament who have taken steps to have it deleted.

Effects on Wikimedia Projects

Clear rules that allow the dissemination and reuse of publicly funded material would benefit Wikimedia as well as other organizations spreading knowledge to the public. The more open the licenses the easier the reuse.