We just got done criticising how Bulgaria’s weak consolidated presidency compromise handles Article 11 of the proposed Copyright in the Digital Single Market (DSM) directive. The Bulgarian plan doubles down on the Commission’s original bad idea and ignores most of the positive protections offered by some members of parliament.
But we shouldn’t have been surprised when MEP Axel Voss came out with an even worse plan for the press publishers right. This week MEP Voss released his proposal for a compromise on Article 11, and the changes he is proposing are even more radical and more broken than anything we’ve seen thus far.
Expanding the scope to cover facts
First, Voss proposes to expand the scope of beneficiaries of Article 11 from to cover not only press publishers, but also news agencies (who aggressively lobbied for being included in the scope of Article 11 late last year). But in doing so, he introduces the risk of inappropriately granting copyright – like protection to facts and compilations of basic information. This is a dangerous extension of the scope of exclusive rights that would endanger the right of access to information. It is especially appalling since even the founders of the “modern” European copyright system wisely choose to make sure that news of the day and facts cannot be exclusively claimed: The 1986 Berne convention explicitly states that copyright shall “not apply to news of the day or to miscellaneous facts having the character of mere items of press information”.
Perhaps the most extreme change is that press publishers and news agencies would be granted (or saddled with?) an “inalienable right to obtain an fair and proportionate remuneration for such uses.” What does this mean? It means that publishers would be required to demand payment from news aggregators and other users.
There are several problems with this approach. First, it’ll just prompt aggregators to only include content from publishers with whom it’s financially viable to work with. Small publishers or journalism startups would not be worth it for the aggregators to worry about, so they just wouldn’t enter into agreements with them at all. This doesn’t bode well for improving access to information, for ensuring diversity of the press, or in the prospect of boosting young businesses via online channels.
Second, the inalienable right directly conflicts with publishers who wish to share freely and openly use Creative Commons licenses. An unwaivable right to compensation would interfere with the operation of open licensing by reserving a special and separate economic right above and beyond the intention of some publishers. For example, the Spanish news site eldiario.es releases all of their content online for free under the Creative Commons Attribution-ShareAlike license. By doing so, they are granting to the public a worldwide, royalty-free license to use the work under certain terms. Forcing publishers who use CC to accept additional inalienable rights to be remunerated violates the letter and spirit of Creative Commons licensing and severely limits them in their freedom to do business.
Links aren’t taxed…unless they are
Voss’ text includes a provision that the press publishers right “shall not extend to acts of hyperlinking which do not constitute acts of communication to the public,” and includes in the recitals an extended note of the recent CJEU judgments on the issue. But there’s a big disconnect in simply adding the text above, and understanding the situation on the ground. As MEP Felix Reda explains,
“Links today almost always automatically include short parts of the article, such as the headline (either because it is part of the web address itself, or because the link is shown with an automatically-generated preview). Because the proposed right would protect even headlines, these links would necessarily be communicating protected content to the public. Therefore, the exception will not apply to them.”
This is not a workable compromise, delete Article 11
It is no real surprise that MEP Voss pays no attention to the one reasonable idea of how to fix the mess of Article 11. By now it is clear that MEP Voss has his very own definition of the term “compromise”. With regards to Article 11 this is especially unfortunate since this is one of the few contentious issues where a real compromise between the proponents and opponents of the new right has been identified: The approach presented earlier by MEP Voss’ predecessor MEP Comodini (and also contemplated in the Estonian presidency) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.”
In the absence of such a compromise Article 11 should be deleted. It will restrict access to information, doesn’t contribute to supporting quality journalism, and will do nothing to grow the digital single market. Many (likely most) publishers and news producers don’t want it. And research commissioned by the European Parliament itself says it won’t work. Voss’ “compromise” is a perverse, empty bargain.