Europe on the verge of voting nefarious digital publishing right

I’m not given to grandiose statements, but this headline may actually be understating the threat that we face.

The European Union is about to embark on a copyright reform of monumental proportions, one that could change the way we interact with the Internet in more ways than we may suspect. And it is all about propping up dying industries that refuse to change.

Linking

But first, a bit of background lesson on hyperlinking and copyright. For many years, there has been a concern regarding linking to content and copyright law. Linking is an integral part of the Internet, but a few copyright maximalists were concerned that linking without permission would amount to what is considered a communication of the work to the public. While early cases struggled a bit with the concept, even granting injunctions, the law settled on the concept that linking was a vital technical function of the Internet, and for the most part linking to content was left alone. At some point content owners tried to resurrect the question of hyper-linking and a few cases in Europe made their way to the Court of Justice of the European Union looking precisely at this question. In Svensson, a  group of journalists sued a commercial indexing service providing its clients with links to articles published by other websites. The CJEU erred on the side of the indexing service by establishing that if the content had already been communicated to the public to the author, and the link was not directed to a new public, then there would not be infringement. This principle was re-visited and upheld in other cases such as C More, until the case of GS Media complicated interpretation a bit by adding a new commercial and constructive knowledge element to infringing hyper-linking.

Google Tax

While the cases were not successful for maximalists, the publishing industry attempted a different strategy by trying to get a new right in the books. In 2012, German digital publisher Axel Springer lobbied and managed to get in the books an ancilliary copyright for publishers (Leistungsschutzrecht für Presseverleger), which allowed them to stop the use of snippets and other displays by news aggregators of their content. Interestingly, this was a complete failure as the traffic to news sites decreased, and publishers decided to unilaterally allow search engines such as Google to continue providing news service.

The next country that implemented a similar experiment was Spain, which passed a so called “Google Tax” in 2015, allowing publishers to stop search engines from displaying results. The immediate consequence was that Google News simply stopped working in Spain, which actually ended up affecting small publishers the most.

But these apparent failures have not deterred the publishing industry. As they say, if you fail, try and try and try again.

The new EU Directive

The publishing industry seems to be working on the premise that the failures in Spain and Germany took place because the system has not been deployed across Europe. Taking advantage of several politicians in the Commission with ties to the industry, and particularly Axel Springer, the idea of a new right for publishers made its way to the new Copyright Directive proposal in the shape of Article 11. This article extends the protection of the existing exclusive rights of reproduction and communication to the public “for the digital use of their press publications.”

Such a small change, but what a difference it could make!

What this does is pretty much create an entirely new related right for 20 years after digital publication, which would allow publishers to object to any digital use of their works, this could mean hyper-linking and the use of snippets and even automated previews like those that are automatically generated by Facebook and Twitter. Needless to say, the full application of such a right would cripple the way we use the Internet. This right does not affect the existing exclusive rights of authors, and it goes directly to the publishers of such works.

The first vote at the Parliament will take place tomorrow (at the time of writing), and while there are thousands of amendments tabled, it is feared that the worst possible version of the text could pass.

Why this is such a bad idea

This idea is bad. Really bad. This is a new right created without any evidence supporting it, and on the contrary, the experience of such a new right in Spain and Germany has been negative. A letter by over 200 academics (of which I am one signatory) does a better job of describing the misguided proposal:

• “The proposal would likely impede the free flow of information that is of vital importance to democracy. This is because it would create very broad rights of ownership in news and other information. These rights would be territorial ­­– there would be one for each Member State. The rights would be owned by established institutional producers of news. And in each Member State, the new right would sit on top of all the other property rights that such publishers of news already enjoy: copyrights, database rights, broadcast rights and other related rights.

• This proliferation of different rights for established players would make it more expensive for other people to use news content. Transaction costs would be greatly increased, as permissions would need to be sought for virtually any use. Even using the smallest part of a press publication (except perhaps for strictly private use) would mean payment would be due to an institutional news publisher.

• That means, the proposal would be likely to harm journalists, photographers, citizen journalists and many other non-institutional creators and producers of news, especially the growing number of freelancers.

• The people most likely to benefit would be the big established news institutions. If they should benefit, this is likely to exacerbate existing power asymmetries in media markets that already suffer from worrying levels of concentration in many Member States.That said, it is not clear that even these big news institutions would benefit. Similar rights introduced in Germany and Spain were not effective.

• The proposed right would provide no protection against ‘fake news’.

• There is no sound economic case for the introduction of such a right. An additional intellectual property right would not change the fundamental problems that news institutions face. They would still have to compete with many other actors for consumer attention, advertisers and hence revenue.”

But most importantly, this is a misguided attempt at stopping the change brought about technological changes, it’s the digital equivalent of trying to cover the sun with one finger. The publishing industry is in trouble, and they want legislators to save them by trying to get intermediaries to pay, when they should be changing their dying business models.

The effect of this is not to generate revenue, it is likely that the platforms will stop, and those affected will be the small publishers.

Help defeat this atrocious measure before it’s too late by contacting your MEP, and read Julia Reda’s detailed interview here.

Update

The motion to remove Art 11 at the JURI Committee was defeated by one vote, so it now goes to full plenary. Do contact your MEP!