Did you see that we might also have to deal with newly severe EU copyright regulations?

+26 votes
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Just when we thought the European Union was done messing with our lives--at least for a while--following the painful May 25 implementation of GDPR, I'm wondering if everyone realizes that its new Copyright Directive proposal may have a similar impact, and that it comes up for an initial vote on plenary approval just three days from now, June 20-21, at the European Parliament meeting in Brussels.

In particular, Article 13 of the proposal is drawing not only ire, but some doom-and-gloom predictions from open-information notables like Wikipedia's Jimmy Wales, one of the worldwide web's creators, Sir Tim Berners-Lee, and Brewster Kahle, founder of the Internet Archive. In essence, it says that providers of web services are responsible for screening everything people post online to make certain none of it infringes on copyrighted material.

Let that sink in for just a moment. And, yes; the EU fully intends the directive to impact entities outside the EU...in fact, some opine that it's targeted at large web presences operating from the United States.

The Electronic Frontier Foundation writes: "By requiring Internet platforms to perform automatic filtering on all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users."

Academia is also deeply concerned. The Max Planck Institute for Innovation and Competition writes that "...obliging certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publicly available services is contrary to Article 15 of the InfoSoc Directive as well as the European Charter of Fundamental Rights."

Specifically, let's look close to home at WikiTree. Chris and company just had to spend a lot of money on attorneys to interpret, weigh, and take action on the significance of GDPR, and we all know the results were expensive: not just monetarily, but to all of us in new restrictions and the loss of certain areas of functionality.

My understanding--and mind you that I am certainly no international property rights attorney--is that if the EU's proposed Copyright Directive, and specifically Article 13, is implemented as currently written, then WikiTree would be functionally liable for any potential copyright infringement, per EU regulations, for any text you or I write or images or files we post, and would then have to design, create, implement, and enforce some mechanism to pre-screen all of our G2G posts, all of the messages we leave on profile pages, all of the files we upload, and all of the biography and source information and citations that we enter.

I don't pretend to understand all the ramifications, but nothing about it sounds good.

Some references and links of interest:

in Policy and Style by Edison Williams G2G6 Pilot (293k points)

A new article on the matter, published just a few hours ago by TNW (The Next Web B.V., Amsterdam): "The EU's Disastrous Copyright Reform, Explained by Its Lovers and Haters," by Már Másson Maack. It goes into a bit more detail about concerns over Article 11 of the proposal. I admit I didn't bring up Article 11--should have, though--because Article 13 is of more immediate concern to what I do on the Internet, but there's good reason for Article 11 to also have its detractors.

Also note that, evidently, Article 2.4a has had its language modified, albeit slightly, just in the past couple of days. The article indicates it's quoting the latest version, the one we would expect to be on the Parliament's plenary docket tomorrow or Thursday.

And quite unfortunately, there seems to have arisen here on G2G the misinterpretation that this is a US vs. EU issue. That is absolutely not the case. A check of the news or reading the external links provided will clarify this. Much, if not most, of the criticism is coming from within EU nations. At least one Member of the European Parliament, Julia Reda, has even been quite outspoken about it and offers a five-point summary of the consequences of enacting the regulation with Article 13 included in a piece titled "Censorship Machines." 

Many within EU member nations and other countries who are signatory to published criticism of the proposed directive reads like a "who's who." A small sampling (and I'll try to keep it alphabetical):

  • Zuzana Adamova, head of Intellectual Property and Information Technologies Law Institute, University of Trnava, Slovakia
  • Lionel Bently, director, Centre for Intellectual Property and Information Law, University of Cambridge, UK
  • Sir Timothy John Berners-Lee, British inventor of the World Wide Web and director of the World Wide Web Consortium (W3C)
  • Maurizio Borghi, director, Centre for IP Policy & Management, Bournemouth University, UK
  • Niklas Bruun, director, Intellectual Property Law University Center, Hanken School of Economics, Helsinki, Finland
  • Oleksandr Bulayenko, Centre d’Etudes Internationales de la Propriété Intellectuelle, University of Strasbourg, France
  • Hugh Connery, Environmental Engineering, Technical University of Denmark
  • James Cronin, British Internet pioneer
  • Peter Drahos, Professor of Law and Governance, European University Institute, Florence, Italy
  • Josef Drexl, director, Intellectual Property and Competition Law, Max Planck Institute for Innovation and Competition, München, Germany
  • Katharina de la Durantaye, Chair of Private Law and Media Law, European University Viadrina, Frankfurt, Germany
  • Séverine Dusollier, professor, School of Law, SciencesPo, Paris, France
  • Lilian Edwards, deputy director CREATe, University of Glasgow, Scotland, and Professor of E-Governance, Strathclyde University
  • Nico van Eijk, director, Professor of Media and Telecommunications Law and Director of the Institute for Information Law, University of Amsterdam, The Netherlands
  • Kris Erickson, professor, University of Leeds, UK
  • Anriette Esterhuysen, South African Senior Advisor, Association for Progressive Communications
  • Dev Gangjee, director, Oxford Intellectual Property Research Centre, University of Oxford, UK
  • Christophe Geiger, director, Centre d’Etudes Internationales de la Propriété Intellectuelle, University of Strasbourg, France
  • Sayantan Ghosal, professor of Economics, Adam Smith Business School, University of Glasgow, Scotland
  • Dame Wendy Hall, Regius Professor of Computer Science, University of Southampton, UK
  • Dietmar Harhoff, director, Innovation and Entrepreneurship Research, Max Planck Institute for Innovation and Competition, München, Germany
  • Reto Hilty, director, Max Planck Institute for Innovation and Competition, München, Germany
  • P. Bernt Hugenholtz, professor of Intellectual Property Law and former director, Institute for Information Law, University of Amsterdam, The Netherlands
  • Miguel de Icaza, Mexico, founder of the GNOME, Mono, and Xamarin projects
  • Joichi "Joi" Ito, Japanese director of the MIT Media Lab
  • Martin Kretschmer, director, RCUK Copyright Centre (CREATe), University of Glasgow, Scotland, and Braudel Fellow, European University Institute, Florence, Italy
  • Nari Lee, professor of Intellectual Property Law, Hanken School of Economics, Helsinki, Finland
  • Arno Lodder, professor of Internet Law, Centre for Law and Internet, Vrije Universiteit Amsterdam, The Netherlands
  • Juan Carlos De Martin, co-director, Center for Internet & Society, Nexa, Politechnio di Torino, Italy
  • Dinusha Mendia, co-director, Centre for IP Policy & Management, Bournemouth University, UK
  • Axel Metzger, Chair in Civil and Intellectual Property Law, Humboldt-Universität Berlin, Germany
  • Désirée Miloshevic, British citizen born Belgrade, Senior Public Policy and International Affairs Advisor in Europe for Afilias, former Special Adviser to the Chair of Internet Governance Forum Advisory Group and Member of the Internet Society Board of Trustees
  • Matěj Myška, deputy head of the Institute of Law and Technology, Faculty of Law, Masaryk University, Brno, Czech Republic
  • Eoin O'Dell, professor at Trinity College Dublin, Ireland
  • Martin Odersky, German, professor at École Polytechnique Fédérale de Lausanne, Switzerland
  • Alexander Peukert, chair in Civil and Intellectual Property Law, Goethe Universität, Frankfurt am Main, Germany
  • Radim Polčák, head of the Institute of Law and Technology, Faculty of Law, Masaryk University, Brno, Czech Republic
  • Tito Rendas, lecturer in Copyright Law, Universidade Católica Portuguesa, Portugal
  • Marco Ricolfi, co-director, Center for Internet & Society, Nexa, Politechnio di Torino, Italy
  • Thomas Riis, professor at University of Copenhagen, Denmark
  • Guido van Rossum, Dutch founder and developer of the Python programming language
  • Henning Grosse Ruse-Khan, co-director, Centre for Intellectual Property and Information Law, University of Cambridge, UK
  • Giovanni Sartor, professor at University of Bologna, Italy
  • Jens Schovsbo, professor at University of Copenhagen, Denmark
  • Sebastian Felix Schwemer, Centre for Information and Innovation Law, University of Copenhagen, Denmark
  • Martin Senftleben, Professor of Intellectual Property, Vrije Universiteit Amsterdam, The Netherlands
  • Rafal Sikorski, professor of Law, Faculty of Law and Administration, Adam Mickiewicz University, Poznań, Poland
  • Ruth Towse, professor of the Economics of Creative Industries, Bournemouth University, UK, and CREATe Fellow in Cultural Economics
  • Philip Wadler, Professor of Theoretical Computer Science, University of Edinburgh
  • Jimmy Wales, British resident and co-founder and board member, Wikimedia Foundation
  • Guido Westkamp, professor of Intellectual Property and Comparative Law, Queen Mary, University of London, UK
  • Stefano Zanero, professor at the Dipartimento di Elettronica, Informazione e Bioingegneria, Politecnico di Milano

8 Answers

+19 votes
The EU is an authoritarian superstate. It is stripping its member countries of all sovereign rights. This is what we get for allowing international agencies to supersede sovereignty. I am a Floridian. My home is Florida and I am governed by the laws of Florida first. Secondly is the federal government. Nowhere does the laws of the EU apply to me or my actions here. Regardless of what they may declare. I suggest wikitree suspend access from the EU. Rather than cowtow to repressive edicts from an unelected foreign entity. All my sympathies and apologies to EU wikitreers. It isn't about you. Its about sovereignty.  Just say no to the EU
by Chad Olivent G2G6 (6.2k points)

"The EU is an authoritarian superstate."

Very well said Chad. We need to find a way to get these pests out of our business!

"Get the pests out", what a lovely thought! thank you, Chad and Bart.
Actually, as far as the law goes, you're an American first, a Floridian second, etc. It comes down to whether Federal law (treaties & stuff) recognize & will enforce this. It doesn't seem to me like the current Administration would be too interested in enforcing it, but you can't know whether some "Deep State" bureaucrat will, without the higher-ups in political positions even knowing about it.

It kind of sounds like one of those things (like a LOT of things) where it's set up so that if you manage to draw the ire of the Powers That Be, then they can crush you like a bug, but if you stay off their radar they might just leave you alone. That's not how it's supposed to be in America, but not everything in America is how it's supposed to be.
Does anyone remember the first Macintosh ad during Superbowl 1984?
Amen!

The EU has a democratic process. After a vote in the parliament, these proposals were rejected.

The regulations still need updating to help preserve copyright in an internet age but for the moment it is back to the drawing board.

And thank goodness, Helen, with 751 Members of the European Parliament, we also have also have things like internet activism to publicly voice opinions for those MEPs to read.  smiley  Having passed JURI rather easily on June 20, I'm not certain whether all the MEPs were very well informed about the proposal; hopefully they are now.

That brief BBC article is pretty misleading, though. Nothing has been rejected but the mandate that would have otherwise been given to JURI to present the text of the proposal unchanged, as it now stands, to the EU Council roundabout November timeframe. The July 5 plenary vote was the MEPs saying, "Not so fast. We want time to be able to scrutinize this thing further and offer changes to the text."

Now there will another vote before the EU Council meeting late this year. The week of September 10, just 60 days from now, Parliament will reconvene to consider the (hopefully) modified version of the proposal and offer another vote.

If you'd like additional details about the July 5 vote and what it actually means, you can read my July 6 blog entry. That blog post also contains the breakdown of MEP votes by country, for those interested.

+17 votes
So I guess it's really is the Big Brother Era - only instead of 1984 - it's just happenng 34 years later in 2018.

IF I have to be careful of everything I write online, whether it's at wikitree or elsewhere - this does also affect BLOGS as well - then I will probably just stop writing.

I may even stop reading and buying books - and just play games instead.

Oh and do genealogy but keep it all OFFLINE.

But this depends on how much interference we get from the EU

The EU really needs to be broken up and the countries allowed to go back to micromanaging their own borders.
by Robynne Lozier G2G6 Pilot (912k points)
+15 votes

VERY interesting, Edison! Thanks for the information.

I actually read the proposal just as an intellectual exercise. I am NOT a lawyer, but IMHO it proposes enforcement of EU copyright law by "online content sharing service providers." Not in so many words, of course. I'm old enough to remember (in the U.S.) when federal and state governments started to extensively require private businesses to be tax collectors, collecting taxes during the sale. That caused a tremendous uproar, for what little good it did. VAT collection in the UK is, I suppose, the same thing.

It will be quite interesting to see how international disputes will be handled, and how websites will avoid the conflict, whether they want to become part of EU law enforcement or not.

As you imply, Edison, at present, there's nothing preventing me from typing in pages of copyrighted material here on wikitree, even if wikitree simply disallows document uploads as a starting point to avoid a potential international incident. wow. Maybe monitor my keystrokes?? yoiks.

by Bruce Veazie G2G6 Mach 5 (57.6k points)

As Laura points out, this multinational rights arena can get wicked-complex. But we seem to have done relatively well the past several decades with the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works) and the UCC (Universal Copyright Convention). The United States Copyright Office notes: "There is no such thing as an 'international copyright' that will automatically protect an author's writings throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country."

This would be a European Union regulation, not a mutually agreed international treaty, and it seems glaringly to step into the area of enforcement and punitive disciplinary action, not just legal protection. The GDPR had the same type of, IMHO, broad overreach, but we saw nothing from other countries contesting it or repudiating it. Which frankly surprised me.

We saw with the GDPR and we see again here statements that the regulations aren't targeted at the little guy. But nothing in the actual text of either of the two specifically removes responsibility, or liability, from an organization even though that "organization" may be a one-person operation not seeking profit.

I have no idea how this will play out. My hope right now is that there has been enough pressure brought to bear that the EU parliament and council will at least rethink and recast Chapter 2, Article 13, if nothing else.

+19 votes
I worked for a billion dollar + company and had a department of 8 staff lawyers I could access as needed for company business....and not one of them would touch international copyright or trademark law.  You really need to get the experts in International Copyright and Trademark law to wade through what it means.    It is one of the most convoluted legal specialties out there.  I bought millions in rights ad permissions for that company and when I worked with the premier legal firm for this type of law I never had a problem.  Besides copyright and trademark which at least most people have heard about there are other laws like performance rights, estate rights, artist rights, and a host of even more obscure rights that can trip you up and cost hundreds of thousands of dollars.  Remember that the Academy Awards thought they were covered under parody exclusions when they had a skit that featured a Disney character.  Disney sued and won millions.  You would think the Academy Awards would know better... not so...  

I look at this as being a hostile act that has incredible implications to the ability of a business to function.  UE citizens vote these people in.  They need to raise their voices and say stop.  Without the support of UE citizens this kind of judicial intrusion will likely continue because most countries and businesses are not prepared to fight it. And the worst thing would be to make individuals responsible for any postings that break the law.  People think all kinds of things are ok that are actually not legal because this part of law is really murky at best.  

If all the other nations decide to just block everyone from the UE that affects all of us not just those in the UE nations.  While that sounds good you have to understand what that actually does in the long run.  

A wait and see attitude will cost everyone a huge amount of money.  Companies need to band together to fight this.  A small group of people should not have this kind of power.

Edited out a snarky comment I thought about after posting...  ok.. don't wiki when angry... I will repeat it 3 times....
by Laura Bozzay G2G6 Pilot (665k points)
edited by Laura Bozzay
Understand why you edited it out, but I don't disagree with it.
I am generally not snarky... or at least try not to be!   It bothered me so much I posted a whole thread on Culture and Collaboration.   

https://www.wikitree.com/g2g/629664/collaboration-in-spite-of-cultural-differences

But yes, I decided it was not appropriate and gave myself a time out!  

Grandma that I am....
Don't ask ME what's appropriate, because I'd give a pass for some serious profanity on THIS subject (anything less seems hopelessly inadequate) and I'm pretty sure that's a no-no here.  :)

It kind of sounds like it's one of those things where they can come after you if you catch their attention, and they feel like it. You'd think that a bunch of genealogist wouldn't catch anybody's attention (heck, sometimes you can't KEEP people's attention!) but we've already seen rumblings of seriously crazy stuff. Paranoia about DNA & privacy. Crazy talk about how seeking your ethnicity is racist, or something. The ideology at work seeks to strip away anything that ties you to any group other than The State, and it wants control of the means to identify (and therefore track) you. Not to mention the European anti-American animosity that seems to grow every day, when probably a solid majority of WikiTreers are American. So this is disturbing.

As far as counting on the Europeans to rise up, well, that didn't work so well before WWII, and it only seems worse today. Such ideas are scoffed at as backward and uncivilized. After all, the very concept is decidedly an American one. I'm not sure that EU officials that make these kinds of rules are even ELECTED. I assumed they were appointed, and had virtually no accountability.
The EU law are passed by a parliament, and the deputies are elected. Each country elects its own deputies. By universal suffrage in my country. And this is all I'll say on the subject - I don't think bashing what I don't know is the right thing to do.
I agree with Isabelle here. I live in the EU too and we had / have to deal the similar effects from huge US-based corporations (Monusato for example, not to mention Facebook and other invasive and disruptive technologies) and it's legal implications and far-reaching restraints for years now. Fact is that it is a brave new world that we all share. The market is Globalised, and inevitably so. Globalism as an ideology is the real enemy here. Calling each other names ("super state") is an appealment to the visceral. Not helpful. The world we live in is becoming increasingly technical and complicated. Not all new measures are bad and not all new measures are good. Humanity is in this boat together. Together we will float or sink.
Just because you have elections, it doesn't necessarily mean that there's much accountability. In the US, there are literally hundreds of thousands of bureaucrats in Washington and elsewhere who write regulations - which can be de facto laws that nobody votes on. Who has the real power in the EU, and how do they get in their positions? I don't hear good things. From this side of "the pond", we never hear about some powerful EU official getting tossed out of office for pushing some disastrous policy, so how much accountability could there be?

If I'm wrong (which is entirely possible - I'm no expert on this, at all), then it's actually on YOU - our European WikiTree friends - for the fact that this is happening. YOU elected these people!

On a side note, I don't know how proficient some of you might be with American English, but if you want to call a political unit a nasty name, "superstate" really isn't the way to go. It's interesting that the part of that that actually WAS nasty - the adjective "authoritarian " - was used at the same time, but THAT isn't being objected to.
What am I doing here? I won't comment further.
I'm out. No comments anymore here.
+10 votes
Copyright violations bug the heck out of me.  Many people, my children included, don't care at all about copyright.  Librarians have always come down on the side of caution.  Since I come from that tradition in the USA, I never would consider posting an obituary to a profile, as an example, unless it was published before January 1, 1923, because then I know that it is in the public domain.  Blame it on Sonny Bono.  See https://www.copyright.gov/circs/circ15a.pdf.  Politics aside, since Wikitreers don't abide by the law in the USA, for example deciding arbitrarily that obituaries aren't covered by copyright, so posting entire obits instead of just paraphrasing them, EU politics aside, it seems unlikely that anything would change here.
by J. Crook G2G6 Pilot (203k points)
I wish more Wikitreers felt the way you do. If everyone lived up to the Honor Code, WT wouldn't have a problem with the proposed EU regulation. The hard part of the law is that it requires automatic screening of everything uploaded to ensure that there isn't a violation. It would also require people putting up links to content also check for terms since it appears to be strongly aimed at enforcing terms and conditions as well as copyright. An EU lawyer would need to determine if the nature of WT would put it into one of the exempted categories or if it will need the filtering software.

I've personally been affected by people violating my copyright and attempting to sell prints of my original artwork.

J., I absolutely agree about copyright protection. And I don't believe that merely clarifying or augmenting the Berne Convention or UCC would have raised anyone's blood pressure, despite the fact that those are standing, ratified international treaties...and I'm uncertain if the EU, not being a sovereign nation, can even enter into a valid treaty. But as with GDPR, the EU sure seems to feel it has authority to issue multinational decrees and administer penalties even outside its nations.

The only thing that seems to have individuals and institutions alike up in arms is Chapter 2, Article 13...only four pages of the 66-page proposal. And the issue isn't about copyright protection. It's about establishing broad and mandatory assignment of policing, enforcement, and liability not onto the violator, but onto the messenger.

Six days ago, Danny O'Brien and Jeremy Malcolm wrote an article for the Electronic Frontier Foundation titled "70+ Internet Luminaries Ring the Alarm on EU Copyright Filtering Proposal." One paragraph reads:

"The upload filtering proposal stems from a misunderstanding about the purpose of copyright. Copyright isn't designed to compensate creators for each and every use of their works. It is meant to incentivize creators as part of an effort to promote the public interest in innovation and expression. But that public interest isn't served unless there are limitations on copyright that allow new generations to build and comment on the previous contributions. Those limitations are both legal, like fair dealing, and practical, like the zone of tolerance for harmless uses. Automated upload filtering will undermine both."

Not to mention be hugely expensive. I don't believe there's anything out there in the world of genealogy that is designed to evaluate contributions and uploads from individual users and evaluate that new content--somehow, maybe by heuristics or by keywords or by embedded JPEG information--to determine if it might be in violation of some country's copyright law. Remember, this is not supplanting or replacing copyright laws, even for EU member nations: it's something that will sit, overarching, over the top of them and, like the GDPR, supposedly affect any entity that does business within or offers services to the EU or its residents.

GDPR compliance was expensive too, not to mention painful in a lot of places. Rather than spend the money needed to comply, many companies chose to simply remove services for which it would be prohibitive...or simply to try to summarily block all Internet traffic from EU countries. There was even a website--since forced to close--called GDPR Shield that offered simple tools like JavaScript code to block visitors from the EU. But hundreds of companies did choose to block EU visitors and stop doing business in those countries, companies ranging from Verve and Drawbridge to the Los Angeles Times and the Chicago Tribune. A study by law firm McDermott Will & Emery in conjunction with think-tank the Ponemon Institute found that large companies spent, on average, $13 million each preparing for and implementing GDPR rules.

How much time, effort, and money can and will organizations now spend in order to be compliant with yet another EU mandate following closely on the heals of the last one? From Bloomberg News a few weeks ago:

"A provision of the draft proposal, Article 13, could force tech companies to either heavily filter user-uploaded content or shutter their websites, attorneys told Bloomberg Law. Smaller companies, in particular, won't have the resources to invest in technologies needed to comply, they said. ...Companies would have to invest in costly—and potentially unreliable—software programs to filter out infringing material, attorneys say. A March 23 draft from the council, for example, would require companies to make 'best efforts to prevent the availability' of infringing content." 

An imperfect analogy, but it sorta frames the potential into a library perspective. Let's say the Minneapolis Public Library System went to Baker & Taylor and ordered 100 copies of The New Yorker staff writer Jonah Lehrer's 2012 book Imagine: How Creativity Works. Lehrer was caught in blatant plagiarism, fired from The New Yorker, and even gave a 2013 speech at the Knight Foundation called "My Apology." Now, because the Minneapolis Public Library made the content available, it can be deemed liable for not monitoring and preventing the misuse of copyrighted material, all the bits of plagiary throughout the book. The City of Minneapolis is prosecuted for the breech. As I said, imperfect. But switch it around to a book self-published at Amazon, and it becomes quite realistic.

Strange then that one often sees this posted under an copyright-free / open access picture for example on Wikipedia: 

"Warning sign You must also include a United States public domain tag to indicate why this work is in the public domain in the United States"

Wikipedia has strict rules on tagging public domain images. Actually, it is for all images. You have to indicate under which license mechanism it is legal to upload it.

Doug's correct; Wikipedia explains its stance here. But, Philip, can you help me out? I'm not certain I follow how this is even relevant to the discussion.

The whole tenure of this feed is that the US is the big victim of a political federal entity that is acting in it's own interest. While the USA has a very long history, also corporate, of being a law unto it's own. Yes - I know Wikipedia and Wikimedia has all sort of strict rules about giving credits and using copyright. That is my whole point - even if one resides outside of the US one has to include a US-domain tag to indicate why it is in the public domain of the US - not because of strict European copyright laws, but because of US-copyright and neighbouring right laws.

You're certainly entitled to your opinion, Philip. Hopefully, the clarification I added as a comment under the initial question will show that the majority of the ire and criticism pointed at this proposed directive is coming not from the U.S. at all, but from outside it. In fact, here's a search link for you; that takes you to a Google News search for "Directive on Copyright in the Digital Single Market." Not a single U.S. major media outlet or news source is even writing about it. Well, if we discount Breitbart News 19 days ago, and I feel safe we can. Other than independent sites or journals like Columbia Journalism Review and The National Law Review, most articles/links are to European publications.

That it isn't hitting North American awareness--and it should be--is one reason I posted here in the first place; and the outcome could have significant impact on how we can, or can't, do genealogy in the future.

As to the Wikimedia Foundation, it is a 501(c)(3) entity incorporated in the United States under U.S. law, operating under U.S. law, and headquartered in San Francisco, also subject to the laws of the State of California. I would fully expect any organization incorporated, for example, in France and operating under sovereign French law to have requirements of French copyright law I must meet if I wish to participate there.

But if you actually read the proposed directive, you'll see it has nothing at all to do with what is and is not covered under copyright protection laws for individual works; it would have to replace and supersede those individual rights within all Member Nations to do that, and it carefully does not. Sprinkled liberally throughout the language are weakly-worded, conditional clauses and phrases like: "Member States may determine, at national level"; "Member States should take appropriate measures"; "they should remain free to choose"; "which should continue to apply"; "can be applied only in certain special cases"; "which may apply"; "may in certain cases, for example"; "may be faced with legal uncertainty"; and "the modalities of implementation may differ from a Member State to another."

What the proposal is focusing on is the availability and distribution of works, not protection of the authorship of the works themselves:

"In order to achieve a well-functioning marketplace for copyright, there should also be rules on rights in publications, on the use of works and other subject-matter by online service providers storing and giving access to user uploaded content and on the transparency of authors' and performers' contracts."

Nothing would change about my ability to upload, say, a headstone photo from Find-a-Grave for which the photographer specifically states, on his or her FAG contributor page, that I am free to do. What would change is that an organization like WikiTree might become responsible--and liable--for pre-screening that upload to validate and verify that it was indeed permissible without payment or source-provider contract. Nothing, that is, unless the effort and expense of meeting that requirement of verification and liability were too great and the aggregator, collator, archivist, distributor--WikiTree--decides it can't afford the compliance and stops providing the service completely.

Thank you for explaining. That wasn't clear in your previous comment.  Thank you for clarifying.
Edison, I agree. The ambiguity of the articles and the potential liability is the problem, especially how to implement screening if it becomes necessary. If uploads were banned, that shouldn't really impact the ability to do genealogy. It would make proper source citation critical as well as learning how to extract data and paraphrase from those sources.
I mention this on this forum a week ago and people said it will not affect us.. but really.. it is a huge worry.. I am watching the news.. I noticed parts of the EU are talking of are talking of pulling out of leaving...  stopping immigration to their borders, stopping funding the EU. I thinking 6 countries were talking of leaving last I heard. Pretty Scary stuff.. over this.
+12 votes
Am I missing something, or is this, as far as Wikitree goes, a non-worry? There are specific let-outs for non-profit organisations, the likes of Wikipedia, and so on. They are not ‘online content sharing service providers’ by virtue of the definition of that term in Article 2(5) which explicitly excludes them. Ancestry and other commercial sites may have a problem. I am not convinced Wikitree does. Here is the relevant text, which I can quote without worrying about copyright infringement!

“‘online content sharing service provider’ means a provider of an information society service whose main or one of the main purposes is to store and give the public access to a large amount of works or other subject-matter uploaded by its users which it organises and promotes for profit-making purposes.

“Providers of services such as non-for-profit online encyclopaedias, non-for-profit educational and scientific repositories, non-for-profit open source software developing platforms, as well as internet access service providers, online marketplaces and providers of cloud services which allow users, including businesses for their internal purposes, to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive.”

For me it is pretty clear that Article 13 and other parts of the Directive do not apply to Wikitree as it is not an online content sharing service provider within the meaning of the Directive. Paragraph 37a of the preamble would appear to confirm my reading of the Directive.

All the hitherto-existing copyright rules that have applied to Wikitree up to now will of course continue to so. It remains very bad practice for Wikitree members to paste substantial extracts from copyrighted publications into profiles, and they individually risk copyright infringement action if they do so. The normal ‘fair use’ principle in copyright law means modest extracts can be quoted and that is explicitly recognised in the draft Directive.

But as far as this Directive goes, are we worrying about a non-issue for Wikitree?
by Michael Cayley G2G6 Pilot (111k points)
edited by Michael Cayley
An EU type lawyer will need to verify it once the changes get passed. The reason is that Wikitree isn't technically a non-profit. It essentially functions as one but might miss on that case.  My reading is similar to yours but I'm not a lawyer. The point about content sharing providers might be the key.

The problem with "fair use" is that the definition isn't solid. I've seen people claim fair use when they copy dozens of pages of a recent publication and claim that it was fair use (not on WT, but other places) because they weren't selling it. It also varies by jurisdiction. To me, fair use is a short paragraph or a couple sentences.
I am a Brit and (still, for the time being) an EU citizen, and I believe non-for-profit is not a technical term in the way I think non-profit may be a technical legal term in the USA - I hasten to add I am no expert on US law. My understanding is that the non-for-profit phrase in the Directive will have its natural meaning of not aiming to make a profit. I had a lot of experience of EU law in my working life and helped draft some EU legislation, and the EU courts tend to take a broad view on this sort of thing - and they also are guided by what is said in the preamble to Directives, which is why preambles are often so long and at pains to set out the aims and intentions of Directives. For Wikitree I am pretty relaxed about this draft Directive.

I agree about the uncertainties about the limits of fair use. Those uncertainties have long been with us. As a published writer (decades ago) I would not regard copying pages and pages as fair use, and I don’t think any lawyer would either.
In the USA, non-profit is a legal term that gets caught up in tax law at both state and federal levels as well as some business structure requirements. Good to hear that it isn't likely to be a problem. Some people are a bit excitable, especially after the impact of GDPR. Copyright enforcement here is left to the individual with Congress periodically wanting to weaken it.

I'm an artist and have had works reproduced and put up for sale so I'm a bit touchy about copyright infringement.

Okay; so it took me a while to type this...with a errand break in the middle. But since I did...

And we also get back to the weakly-worded conditional language in the proposal. Mind you, I'm no attorney, though I've had a fair amount of involvement over the years in legislation at the U.S. state level. The outcome can sometimes seem quite cumbersome--largely because it's less difficult politically to add clarification to an existing law than it is to rewrite it completely, so some chapters and sections can come to look like an accretive mass of bloviation--but the goal is always to be as unambiguous as possible. If the definition of a thing, an act, or an actor is not clear and unambiguous, the bill will never pass into a calendars hearing, much less onto the governor's desk. If unclear, judicial application of a law is open to interpretation, something we try to avoid.

Perhaps the ambiguity seen in this proposal as well as the GDPR is by the very nature of the European Union. It isn't operating under a constitution as is the U.S., and has no analogy that I'm aware of that delineates state and federal roles as does the Tenth Amendment.

Doug is absolutely correct. WikiTree is not incorporated as a nonprofit entity. It operates that way--probably even has fewer expenses precisely because it isn't incorporated that way; no annual Form 990 and other IRS filings--but there is no definition in the EU proposal as to what is and is not a nonprofit entity, what they refer to as a "non-for-profit." The ambiguity in the proposal would make some state legislators I know go completely speechless...and that's normally unheard of; trust me.

Looking at that part of Article 2, Item 5 that Michael quoted, what exactly is an "information society service"? Have you ever heard that term before? Does "give the public access" mean free, unpaid access; for-fee access; or both or either? Who or what determines "main or one of the main purposes"? Ancestry.com allows me to upload files and text to the profiles in my tree--I probably wouldn't use it if I couldn't do so--but is that Ancestry's "main or one of the main purposes"? If the "information society service" doesn't store the data/information on its own servers and infrastructure, does that make a difference? Since the Internet Wayback Machine has captured over 332 billion webpages that may no longer appear on a Google search, does it qualify as an "information society service"? What constitutes "a large amount of works or other subject-matter"; large in relation to the available archives at my one-name study, or large relative to YouTube? What constitutes "profit-making"? We know WikiTree is not organized as a 501(c)(3) nonprofit corporation but it does not charge users for its services; it does, though, have a revenue stream adequate to keep it operational. What is and isn't profit is defined by accountants and lawyers, not by Webster's...and it differs considerably among various nations.

The term "uploaded content" is critical to the entire proposal. Search the document for "upload"; you'll find 17 instances. Search for "content" and you'll find it used 85 times. Not once is either one of of those words defined, either in context of the proposal or otherwise. To paraphrase Diego Montoya in The Princess Bride, the word "upload" may not mean what you think it means. I'm typing directly into the G2G forum right now, but what I type doesn't just hang out there as text. When I click the button to send this comment on its way, the text is actually uploaded into a database, probably a flavor of SQL, where it will live. Every page we look at in G2G is not a static "page" at all: the content (that word again) is dynamically rendered on-the-fly, extracted from what we previously uploaded to the database and then displayed in a web-browser-friendly format.

And that second paragraph Michael quoted: "Providers of services such as non-for-profit online encyclopaedias, non-for-profit educational and scientific repositories, non-for-profit open source software developing platforms, as well as internet access service providers, online marketplaces and providers of cloud services which allow users, including businesses for their internal purposes, to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive."

Where, how, and by whom are organizations classified/qualified by that paragraph? Nothing about the law is ever, "Oh, you know what we mean; everybody knows what that means." WikiTree, for example, is probably not classifiable as an "online encyclopaedia"; probably not as an "educational and scientific repository"; certainly not as an "open source software developing platform" or an "internet access service provider" or an "online marketplace and provider of cloud services."

Doug mentioned the doctrine of "fair use." It isn't as clean as it should be in Section 107 of the U.S. Copyright Act, but at least Copyright.gov provides information helping to define and understand fair use, and an index of searchable case law pertaining to fair use. The EU proposal states that, "Member States shall be free to determine the insubstantial nature of parts of press publications taking into account whether these parts are the expression of the intellectual creation of their authors, or whether these parts are individual words or very short excerpts, or both criteria." Say what?

Too, we have to think about the entire supply chain. If, for example, Ancestry decides it's forced to have a firm, contractual agreement in place for all contributors to Find-a-Grave that allows it to use the original photographs, and it decides it's too difficult to obtain, manage, and maintain the necessary contracts, might it be easiest for Find-a-Grave to just go away? WikiTree lost about a half-million DNA connections in the tree because it couldn't obtain adequate "contracts" under the GDPR for those profiles. WorldFamilies.net shut down completely as of May 25 leaving about 700 DNA projects in limbo because, as a mom-and-pop shop, it decided it couldn't meet the compliance criteria under the GDPR. I posted earlier that large companies spent, on average, about $13 million each chasing GDPR compliance. If this becomes another cash outlay, trust me, there will be cost/benefit analyses of affected services.

Even bigger supply-chain fish, at least one of the articles I linked to indicated that YouTube, that has already spent bundles on its "Content ID" system would not be able to comply with the EU copyright directive. It would have to spend bundles more...or take the EU to court, or stop providing or accepting content in or from the EU. It certainly won't shut down. Through Google Images I can find photos and digital artwork that I can download. Today, legal copyright compliance over what is done with those images is on me, as the person who downloaded them. Under this proposal, the liability shifts to Google to make certain that all rights and permissions have been accounted for.

My rights and permissions experience is admittedly dated, and it pertained almost exclusively to books. But if I were still in publishing in the U.S. and wanted to buy a book, article, or story from you, you and I would have a number different flavors and combinations of rights to negotiate:

  • Made for hire
  • First North American serial rights
  • First serial rights
  • Electronic rights
  • Reprint rights
  • Subsidiary rights
  • Exclusive rights
  • Worldwide rights
  • All rights

And, typically, with some of those you and I would negotiate an applicable timeframe. For example, I could buy exclusive rights, but we could agree to limit that to, say, 36 months. "Made for hire" or "work for hire" is really the only instance that transfers the actual copyright from you to me (P.S., try never to agree to that; if you're a stringer for a news publication, you usually have to accept it).

This level of permissions granularity plays into the EU proposal not at all; in fact, it isn't even acknowledged. It even states outright that the actual copyright law is on a country-by-country basis. My had hurts thinking about how an "information society service" can be expected to monitor and manage a gamut of content rights and permissions adequately enough to ever put anything on the Web again.

Speaking of the Web, one last thought that's been bugging me, and then I'll shut up. What about the Deep Web? (And no, not the "Dark Web," a la The Silk Road; although a subset of the Deep Web, the Dark Web is generally thought of as being for illegal purposes only.) The Worldwide Web as most of us know it--and that is searchable by Google, Bing, and others--represents only about 20% to 25% of the total number of sites and content online. There are self-indexing options sites can use to allow themselves to be found on the Deep Web via the Tor network, but there are no search engines per se.

If they can attempt to legislate only the tip of the iceberg, what exactly is the EU trying to accomplish? Pareto's Law and logic would say that most of what's happening in terms of piracy is happening on the Deep Web. And it's even spelled out at the end of 37a: "In order to ensure the high level of copyright protection and to avoid the possible application of the liability exemption mechanism provided for in this Directive, this Directive should not apply to services the main purpose of which is to engage in or to facilitate copyright piracy."

Hm. "In order to ensure the high level of copyright protection...this Directive should not apply to services the main purpose of which is to engage in or to facilitate copyright piracy."

Okay. I'm going to go do something fun now. Like go clean cobwebs out of my attic....

The technicalities of US legal concepts like non-profit entity do NOT apply to EU law. EU law is interpreted in its own terms - and, like all legal systems, has its own way of saying things. The US way of writing legislation is only one of a number of different way countries write laws. It has its good aspects and its bad aspects, as do all countries’ approaches to drafting laws. UK law tends to be less detailed than US law; historically some European countries have placed greater reliance on setting out what laws aim to achieve with less dotting of i’s and crossing of t’s than in UK and US law. There are advantages and disadvantages to all the different approaches.

I repeat, to me, as someone who has in my past working life had a lot of involvement in EU law, and in its drafting and its interpretation, it is pretty clear that this Directive as it stands should not worry Wikitree because Wikitree is not operating for profit. It is not relevant that Wikitree is not a nonprofit entity under US law - that does NOT determine the position under this Directive.

Incidentally, this is a Directive, unlike GDPR, which is a Regulation. Regulations have the direct force of law in all EU countries. Directives don’t. They will have the direct force of law in some EU countries, though those countries may, and often do, supplement them because parts of Directives often set out principles EU countries must follow, without much detail. In other EU countries, including the UK, Directives do not automatically have legal force. If the Directive is adopted before Brexit, UK national legislation will be needed to give it effect. The Directive would compel the UK to introduce such a law - and UK national legislation would be more precise because that is the UK legislative tradition.

On a specific, Edison, that you raised, ‘information society service’ has a definition in existing EU legislation, to which this Directive refers. It means “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.” Note the reference to remuneration. This definition, which is deliberately wide enough to cover services not dreamt of when the definition was devised, actually gives added comfort to Wikitree, since it is a core principle that Wikitree should be free to users, with no ‘remuneration’ from them.

And, on the dark web, illegal drugs and child porn are available on it. That does not stop countries having laws against them. Countries should not give up on legislation simply because of the dark web.

Finally!  Someone who knows a bit about the issue posts.  I suggest everyone read this post very carefully.  Copyright seems scary, and there have been really bad rulings, but that doesn't mean WikiTree is in danger of begin shut down or requiring a staff of copyright lawyers. 

+6 votes
As a musician and a writer, copyright/ASCAP was the only protection available.  Since it was so widely ignored, I went to engineering school so I could earn a living.  

It seems to me that WikiTree might require people who sign up to sign a statement that they would not violate copyright laws, and, in the event that they ignore this, they would bear the cost of any prosecution or legal action.  WT can require this, and I think that we should.

My opinion only.  But not without experience and knowledge!
by Robin Anderson G2G6 Mach 4 (40.0k points)

I can definitely relate. I went to engineering (well, computer science) instead of a BFA. What amazes me is the number of people who not only don't understand that copyright violation is theft, they out and out refuse to believe it. 

I entirely agree. I discovered a couple of years ago that some published works of mine from 30-40 years ago have been made available on the internet in full without my permission. The royalty loss is small because of the nature of the works, and it is not worth my while to pursue my rights. But it is theft.
+7 votes
This morning's vote in JURI passed the proposed directive. It still needs a vote of the full EU Parliament but that has not been scheduled. The news reports I read don't expect it to go to a full vote before December and possibly later.
by Doug McCallum G2G6 Pilot (421k points)
The world has not ended yet.  It will still have to be upheld in the courts, meet challenges, and a whole bunch of other hurdles before it seriously impacts WikiTree in any way.
See my answer and comments above. I do not see this Directive as a worry for Wikitree.

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