Wikimedia chapters/Reports/Wikimedia Eesti/FoP campaign report 2016 H1

Report on WMEE Freedom of Panorama campaign for January–June 2016

The 2015 report can be found here.

Overview

In 2016, WMEE’s campaign team:

continued seeking endorsements for their proposals;
communicating with creative associations and other stakeholders;
consulted with lawyers and prepared a draft act along with an explanatory memorandum;
continued advocating the issue in the media and communicated with officials and politicians
the draft act and explanatory memorandum were presented to the Parliamentary Cultural Affairs Committee and the Copyright Working Group at the Ministry of Justice;
maintained and continually updated the campaign page on the Wikimedia Estonia website; the page has now become a decent database on FoP and related information and developments
also several talks on the subject of Freedom of Panorama were given.

Gathered Endorsements

Estonian Association of Interior Architects (12 January)

Estonian Association of Architects (21 January)

Estonian Academy of Arts (14 March)

Estonian Museum of Architecture (24 March)

MTÜ Eesti Fotopärand (19 May)

Estonian National Library (13 June)

Estonian Association of Tourism Enterprises (29 June)

By late March, WMEE had also received pledges of support from the Estonian Film Institute, Estonian Association of Photographers, and Estonian Association of Marketing Communication Agencies. Our campaign personnel were also in close communication with Estonian Artists’ Association who, while not directly pledging us their support, essentially declared their support for enacting FoP in Estonia in their response to a query made by the Ministry of Culture (their response includes long excerpts from their correspondence with the representatives of WMEE).

Meetings with politicians and officials

2 April: Raul Veede met MEP Julia Reda, Rapporteur on Copyright Policy, giving an overview of our progress.

19 April: Raul Veede met Krista Aru, member of the Parliamentary Committee on Cultural Affairs, who was been extremely positive towards our pursuits and has subsequently given the team valuable information about the work of the Committee on Cultural Affairs.

27 April: Eva Lepik and Raul Veede met Aadu Must, also a member of the Parliamentary Committee on Cultural Affairs, who was extremely supportive of FoP and promised to take the draft act to the Committee.

3 May: Eva Lepik and Raul Veede met Mati Kaalep, Adviser in the Audiovisual Field of the Ministry of Culture, and MEP Indrek Tarand. The discussion with the representative of the Ministry of Culture revealed that thanks to the campaign page, the Ministry is well-acquainted with our pursuits and the Ministry supports enacting FoP in Estonia (this was confirmed during a telephone conversation with Deputy Secretary General of Ministry of Culture Hillar Sein on 22 April). Unfortunately, the task of carrying out the copyright reform has been assigned to Ministry of Justice and the Ministry of Culture does not have much interest in displaying their initiative in this sphere.

18 May: Seminar “Digitalizing Europe – What Will Happen to the Society?” organized by MEP Kaja Kallas; meeting with Kaja Kallas.

20 May: MEP Marju Lauristin’s digital conference “What Kind of an e-Estonia do We Want?” in Tallinn; meetings with MEPs Marju Lauristin, Julia Reda and Indrek Tarand, Chancellor of Justice Ülle Madise, and many others.

10 June: Raul Veede met with Liia Hänni, Senior Expert of the Estonian e-Governance Academy, and Kristina Reinsalu, Head of the Domain of e-Democracy; eGA expressed their readiness for cooperation and advises us to hold a round table.

20 June: Eva Lepik and Raul Veede met Andrus Ansip, Vice President for the Digital Single Market, who optimistically suggested that FoP may still be enacted in the entire EU. Upon his request, the team have started to prepare informational materials on Freedom of Panorama that he could use in his future work.

Media

Media coverage was not a priority for the campaign team in Spring, as they were first trying to get a clear picture of the possibilities of the legislative process and the positions of those involved. The campaign team did, however, publish a press release on the Swedish Supreme Court judgement in the BUS vs WMSE case and an analysis of its legal background and implications (article in Estonian in Ärileht; article in Estonian in Postimees).

At present, in late September, the Estonian media is enraptured with the protracted presidential elections and any other political campaign would not receive any attention in the media; politicians also lack both time and desire for dealing with legislative matters.

Preparing a draft act and explanatory memorandum

As a result of intensive research and collection of international comparative materials, the draft act and explanatory memorandum were finished in early May and presented to the Copyright Working Group at the Ministry of Justice, the President of the Riigikogu, and the Parliamentary Committee on Cultural Affairs. During the preparation of the draft act, the team were in communication with several lawyers specializing in copyright (Kersti Ahlgren, Eeva Mägi, Peeter P. Mõtsküla and others).

In addition to an impact analysis, the explanatory memorandum also contains comparisons with relevant legislation from other countries and discusses how the lack of FoP contravenes the normative documents of Estonian legislation see here, and here.

On 24 May, Kalle Palling, the Head of the Parliamentary European Union Affairs Committee, informed the campaign team of his readiness to be one of the MPs to submit our draft act to the Riigikogu.

On 25 May, after reviewing our draft act and explanatory memorandum Chancellor of Justice Ülle Madise informed the team that while she was unable to provide them with any direct assistance in this phase of the campaign, she was sincerely supportive of the subject matter and philosophy of the draft act and that she had forwarded our materials to her advisors working on copyright and IT matters to take them up again in a politically opportune situation.

On 30 May, President of the Riigikogu Eiki Nestor informed the team in response to their inquiry that if politicians willing to submit our draft act to the Board of the Riigikogu can be found, he will immediately initiate the proceedings. No such politicians could be found.

On 1 June, Deputy Secretary General of Ministry of Justice Kai Härmand and Head of the Copyright Working Group Kärt Nemvalts sent a letter to WMEE thanking us for our in-depth materials concerning “so-called Freedom of Panorama”, “as the proposals submitted and evaluations received from stakeholders will help plan future changes to the Copyright Act”. In the same letter, the officials of the Ministry of Justice said that in their opinion, the immediate implementation of the amendment would not be practical, as the European Commission is conducting a public consultation in this matter and by autumn, a package of proposals would be made public for harmonizing EU copyright law, this including the matter of FoP. The letter concedes that in light of the endorsements received by WMEE, Estonia would most likely support enacting Freedom of Panorama, as both figurative artists and architects, the two groups most affected by the amendment, have reached “a substantially identical conception of the potential scope of the so-called Freedom of Panorama”.

Estonian legislation foresees the possibility of submitting a draft act to the Parliament in the form of a popular legislative initiative, but this would require collecting 1000 digital signatures on the Web in a very short time, which, in turn, would require an extremely time- and resource-consuming media campaign, which is not realistic in the present situation. A draft act based on popular initiative would also not be binding on the Parliament, giving this course of action no advantages over a process initiated by either a ministry or a parliamentary committee.

Neither parliamentary committee the team approached has expressed any substantive objections to FoP; it seems that what is lacking is the political will to make a decision. Based on the information the team has received, the work of both committees was affected by the interference of a representative of the Ministry of Justice who, referring to the public consultation held by the European Commission, claimed that it would be rash to begin resolving this problem in Estonia, as it would be probably settled on the European level in the near future.

The recently publicized European Commission’s draft impact assessment shows that the enactment of FoP for the entire EU is not currently planned, as “there have been recent developments in Member States”. The ball is, thus, again, in the court of the member states and we should actively continue our efforts in order to attain the desired results (as waiting for any initiative on the politicians’ part is probably pointless).

Results and outlook

As a result of the work done so far, we have reached a situation where the issue of Freedom of Panorama can no longer be ignored in the course of the copyright reform; both the executive and legislative power are aware of the problem.

In the beginning of the year, the team also considered the possibility of having a draft act submitted to the parliament in Spring to be processed and, in the best case scenario, promptly approved, to be quite realistic. We are forced to acknowledge that the optimal scenario did not materialize due to political reasons; however, this was not entirely unexpected. Today, the team is much better informed of the situation, they have a realistic picture of the readiness of those involved for cooperation and they have established contacts with the principal parties to the process in both Estonia and abroad. More intensive work has unfortunately been significantly hampered by lack of funds.

Sharing the experience from the Estonian campaign and the discussions held here with other Wiki communities who could benefit from this has also stalled. Writing reports, translating materials, keeping up lengthy e-mail exchanges and holding meetings is simply impossible due to the lack of funds and time. The campaign team would like to remind you that after the initial grant application, WMF stressed their unwillingness to financially support international exchange of experience. As far as non-financial support is concerned, back in spring, the WMF legal team promised to assist them in gathering international legal data and assigned this task to an intern. The only result of these promises was a single small and incohesive file that did not contain much new information and that has not been updated by anyone at WMF since 30 April.

We still consider the chances of enacting Freedom of Panorama in Estonia to be realistic after the turmoil related to the presidential elections has passed and new power relations and key players are established. Until then, the campaign team must carry on intensive work with politicians, keep up the communication with the European Parliament and Commission, achieve the submission of the draft act by a ministry and support the subsequent parliamentary proceedings by instigating public pressure through a media campaign. This kind of intensive work, however, is not realistic without any funding whatsoever. In addition, the amount of costs covered in the grant application has already been reached and exceeded, meaning that further action in this and the following year must already be financed from another grant.

Last but not least, it must also be noted that the costs of the work carried out thus far have been covered by Raul Veede and Eva Lepik from their personal funds and loans and carrying on in this manner is not feasible. On one hand, WMF has been sending conflicting signals that could be summarized as “we are willing to support you in principle but…” while political efforts could not be put on hold, and the communication between WMF and WMEE has been rocky; on the other hand, the process we have initiated for amending the Copyright Act has been stalled and hindered for political reasons outside our control. As a result, the team members have been forced to incur expenses that could not be financed in any other way than using a loan. Due to the delays in receiving WMF funds and the interests accumulated in result, the expenses made by OÜ Blue Ant have significantly exceeded the amount that was foreseen had the original grant application been approved. This inevitably raises the question where WMEE’s partners are to find the motivation for continuing with the political campaign in the face of such financial behaviour.