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Ancillary Copyright, Publishers’ Right, Link Tax: a bad idea under any name

The Commission is currently holding a public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’. Today we’re kicking off a short series of blog posts that will highlight the problematic nature of granting new copyrights for publishers, and why full freedom of panorama should be ensured for everyone in the EU. This post explores why new copyrights for publishers are a bad idea.

A brief history of ancillary copyright in Europe

For a long time, COMMUNIA has been critical of attempts to introduce additional rights for (press) publishers (see here for a collection of previous posts). The adoption of these ancillary rights would permit publishers to monetize the use of small snippets of text by news aggregators, search engines, and possibly others who collect and share links to publishers’ articles (hence the term: link tax). It first showed up in Germany and subsequently found its way into Spanish copyright law. It is well documented that in both cases the introduction of these new rights has failed to achieve the objectives of their proponents.

These failures have not prevented publishers from trying to get such a right created on a European scale. While the idea was not present in the Commission’s Digital Single Market strategy, Commissioner Oettinger made no secret of his sympathy for the idea, and made it clear that it could surface at any moment.

During the parliamentary discussion of the Reda report, attempts to include a new right for publishers were voted down by a parliamentary majority. In spite of this clear rejection of the idea by the European Parliament, the Commission included thinly-veiled language pointing toward the introduction of new rights in last December’s communication on a modernisation of the EU copyright framework:

The objective will be to ensure that the players that contribute to generating such value have the ability to fully ascertain their rights, thus contributing to a fair allocation of this value and to the adequate remuneration of copyright-protected content for online uses.

By launching the ongoing consultation, the Commission made it clear that it wants to fill this value gap by granting additional rights to publishers throughout the EU. This is a huge win for the publishers who have spent considerable effort lobbying behind the scenes to get here. Their close involvement in this process is clearly demonstrated by the fact that they managed to launch a dedicated campaign website mere hours after the Commission opened the consultation. While the Commission’s own consultation is relatively vague on the details of a possible neighbouring right for publishers, is so confident in their ability to infulence the Commision that they explain what the Commission will propose after having concluded its consultation (empahsis ours):

A publisher’s right, as proposed by the European Commission in consultation with all stakeholders, is a right that will aim to protect the copyright of a press publication as an entity in itself, as opposed to the copyright of an individual article. This right will apply to the reproduction, the communication to the public and the distribution of the publication.

When it comes to the question of why publishers need additional protections (which are already protected by copyright) the publishers are less forthcoming, implying that they deserve a neighbouring right because broadcasters and film and music producers also get neighbouring rights protection.

The case against additional publishers’ rights

COMMUNIA and others concerned about the public domain and access to culture think that granting any additional rights are problematic. The problem with copyright is not too few rights, but too many rights that are too broad and last too long. It’s a truism that the scope of copyright law today bears no relation to the economic lifespan of the vast majority of cultural works. The adoption of ancillary copyright for press publishers is problematic for the following reasons:

  • Rights clearance becomes even more burdensome if additional rights need to be cleared before a work can be used. This problem is widely acknowledged and negatively affects all types of users, including cultural heritage institutions, researchers, start-ups and end users. Creating additional rights that need to be cleared will make it even more difficult for all of these groups (even if it is less of a concern for large, established players who can afford the costs that come with rights clearance).
  • The experience with neighbouring rights for publishers in Spain and Germany shows the intention of publishers to use such new rights to restrict or monetize the ability of others to illustrate links to published content with short snippets—even as short as 8 words (and most headlines are longer than that). This effectively makes linking to published content conditional on permission by the rights holders (or payment of a licensing fee, which is why such rights are called a “link tax”) and limits how people can express themselves online.
  • While there is a strong lobby from many publishers for introducing such a right, not all publishers are in favor. Some professional publishers recognize that taxing the links that bring readers to their sites is counterproductive to their businesses. In addition, bloggers, open access publishers, and other authors who seek the widest possible dissemination of their content would not be well-served by an ancillary copyright. Introducing a new right will negatively affect their business models, as we’ve seen in Spain, where the publisher’s  right is not waivable.

It should be clear that creating an additional copyright for publishers is the wrong way of addressing the problems faced by publishers in the digital environment. Creating a new right for publishers only makes sense if publishers can use it to restrict or monetize activities that are not restricted by copyright and as a result such a step has the potential to create massive collateral damage to access to information, freedom of expression, and business innovation. If the ineffective but never repealed EU database right is any indication a new right for publishers is likely to be irreversible, even if the desired positive effects do not materialize. Rights once granted are very difficult to revoke and intervening with such a blunt tool into a dynamic environment like the internet would be very foolish.

It is unfortunate that the Commission has made additional rights for publishers part of its agenda to modernize copyright. But the ongoing public consultation provides an opportunity to voice our concerns and opposition. You can respond directly to the consultation on the Commission’s site, or through an easy tool on Let the Commission know that a modernization of the EU copyright framework cannot include additional rights for publishers.

In the following posts we’ll address how additional rights for publishers will negatively affect creators, end-users, and cultural and educational institutions.

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