Tomorrow the European Parliament will vote on the Reda report on the implementation of the 2001 copyright directive, which has been approved by the legal affairs committee on the 16th of June. One of the most contentious issues during the vote in the legal affairs committee was an amendment by proposed by the German EPP MEP Angelika Niebler that would have encouraged the Commission to introduce an new ancillary copyright for press publishers on the EU level.
In a last minute departure from the already agreed on compromises, both EPP and ALDE insisted that this amendment should be voted on separately, clearly hoping that this manoeuvre would somehow succeed in getting the desired language into the text of the report. Unfortunately for the proponents of the ancillary copyright, this move backfired and the legal affairs committee voted the amendment down with a relatively clear majority.
Quality journalism or ancillary copyright?
A couple of days ago it emerged that the proponents of the ancillary copyright for press publishers have mounted another last minute attempt, this time attempting to insert language calling for the introduction of an EU-wide ancillary copyright for press publishers into the report via another amendment tabled by MEP Niebler. This amendment will be voted on during the plenary vote on Thursday. The amendment proposes to add a new paragraph (57a) to the report:
Calls on the Commission to evaluate and come forward with a proposal on how quality journalism can be preserved also in the digital age in order to guarantee media pluralism, in particular taking into account the important role journalists, authors and media providers such as press publishers play with regard thereto.
While the text of the amendment does not explicitly talk about an ancillary copyright for press publishers, it is clear that this language is intended to give the Commission an excuse to come forward with a proposal that would introduce such a right.
Commissioner Oettinger and the publishers
Commissioner Oettinger has not made any efforts to hide that he wants to introduce an ancillary copyright on the EU level, and an explicit request for a proposal from the Parliament would give him the opportunity to do so (after he failed to get this ambition included in the Commission’s Digital Single Market strategy). The fact that Oettinger acts as a champion of the (primarily German) press publishers who lobby for an EU wide ancillary copyright became clear during a recent appearance at an event on ‘The relevance of ancillary copyrights for the European Media Diversity.’ The event was hosted by the German collecting society VG media on the day after the legal affairs committee voted down the first attempt to introduce pro-ancillary copyright language into the Reda report.
At the VG media event Commissioner Oettinger not only promised the assembled press publishers and collecting society representatives that they would have the opportunity to provide input on the text of the upcoming legislative proposal before it was published. He also made it clear that he was determined to get the ancillary copyright included in these proposals, and ignored the often made observation that the German and Spanish attempts to generate new revenue from news aggregators for publishers have failed. Oettinger argued that these failures are attributable to the fact that both the German and Spanish markets are too small for publishers to be able to force multinational news aggregators (read: Google) to pay.
Commissioner Oettinger’s solution? Introduce a pan-European ancillary copyright for press publishers, because this ‘would force the intermediaries to the negotiation table’. In other words, Commissioner Oettinger is publicly suggesting that 26 member states (who have decided not to have ancillary copyrights for press publishers in their domestic legislation) should adopt this approach in order to fix broken and domestic legislation in 2 member states. One could only wish that the Commissioner would show similar enthusiasm when it comes to harmonizing even the most basic copyright exceptions.
New copyrights do not mean media diversity
Both the VG media event (‘European Media Diversity’) and MEP Niebler’s most recent amendment (‘media pluralism’) attempt to frame the discussion in terms of increasing media diversity. So far the proponents of an ancillary copyright have failed to show how their proposal would contribute to increasing media diversity. On the contrary, it is very likely that requiring news aggregators to pay for aggregating news will only strengthen the position of existing large aggregators to the detriment of smaller players, which could undermine media plurality in the long run.
In any case, introducing new rights just because the intended beneficiaries (and pretty much no-one else) call for their introduction seems like a very bad idea, especially since we know that these rights can cause substantial collateral damage regarding access to information. In this context it is important to consider that rights that get introduced tend to stay around forever. This makes it crucial to properly analyse the potential effects of new rights, and not push them through via last-minute amendments.
MEPs should vote against MEP Niebler’s ‘stealth amendment’, which attempts to open the door for a Commission proposal for the EU-wide introduction of an ancillary copyright. Ancillary copyrights are a bad idea (and haven’t accomplished what they intend to address). And instead of presenting proposals at the behest of publishers, the Commission needs to focus on harmonizing exceptions, adapting user rights to the digital age, and reducing the impact of copyright on our ability to access and share our culture via the internet.