A contentious proposal to give press publishers neighbouring rights under copyright law is currently on the table in the European Parliament.
Copyright is a family of rights, some of which cover intellectual creation (authorial rights) and some of which do not (entrepreneurial rights). Entrepreneurial rights, the category that would encompass the new proposal, protect investment – for example in television, signals and certain types of graphics.
Neighbouring rights were initially created for performing artists, or radio and television broadcasters, who already benefit from this under EU law. Under the new proposal, press publishers would be granted a neighbouring right (also refered to as ancillary copyright in some cases) for the content they distribute, that would sit alongside the authorial rights journalists already have.
This proposal represents an effort to create a harmonised right across the single market as different countries have already passed national legislation in this field.
Those who support Article 11 of the new Copyright Directive believe it will aid publishers in protecting their investment and give them a better negotiating position in the face of large technology companies who use their content, while those who oppose it believe it can hurt the open web as we know it and even result in loss of revenues.
"Certain publishers think that this new right will give them the possibility to charge people linking to their website and of course they are particularly interested in charging Google and Facebook, who are sending quite a lot of people their way," MEP Julia Reda, who does not support Article 11 in its current form, told Journalism.co.uk.
A copyright-related law came into effect in Germany in 2013, with an exception for single words and "very short snippets", a term which was never really defined in the law and became the subject of court cases which have left some organisations and startups in a cloud of confusion.
"What happened was that nobody actually started paying for putting these links on their services but instead just stopped linking, so either shortening the snippets to the minimum of what was allowed or just not linking to publishers who were using the neighbouring right altogether," Reda continued.
"Google limited the snippets that it showed to the minimum and the result was that the publishers who were exercising this neighbouring right ended up getting a lot less traffic, and so they gave Google a free licence to use their content after all – but of course nobody else got a free licence.
"This law ended up actually strengthening Google's market position in Germany and I fear that exactly the same would happen on a European level."
In Spain, a law that aimed to put more money into publishers’ pockets saw Google stop its News service in the country altogether. Research by economic consultancy Nera at the request of the Association of small publishers in Spain showed that traffic and thus ad revenue fell after the law was enacted in the country.
A report submitted to the commission, written by Dr Richard Danbury on behalf of the Centre for Intellectual Property and Information Law at the University of Cambridge, noted: "The interesting fact was that there were differences between publishers in the extent to which traffic fell. The Asociación de Editores de Diarios Españoles (AEDE), a group representing larger publishers, that had lobbied for the law to be brought into force, reported that their traffic was down by 2 per cent. But traffic to less well-known news publishers fell more, and some sites saw a reduction of traffic of up to 12 per cent."
Help protect or privilege?
The report analyses the arguments for the change in the law, debating whether there is merit to the four key reasons why the proposal is currently on the table: providing an incentive for the commercial production of news; making news publishers equal in the eyes of EU copyright law; restraining re-distributors of published news, who are "free riding"; and protecting commercial news publishers’ rights to the news they produce and publish. Overall, the report finds there is no compelling case for a publishers’ right, pending further evidence.
Legal, economic and social scientists from 10 universities in Europe also drafted an open letter published by RCUK Centre for Copyright and New Business Models in the Creative Economy, stating that Article 11 will "deter communication of news, obstruct online licensing, and will negatively affect authors".
Those who support Article 11 in its current form believe it will help publishers protect what they produce and how it is distributed.
“It's protecting the investment of the publisher in the brands and in the business and in the product that they make available to the public,” said Angela Mills Wade, director of the European Publishers Council.
She believes the neighbouring right would give publishers a clearer position to negotiate, and the laws in Germany and Spain simply need more time.
"There's been a lot of controversy about those two pieces of legislation but that's not to say that they are either bad pieces of legislation or that they have failed. There are a lot of interested parties who would very much like to see them fail, but they're new and it takes a long time for legislation of that type to really go through all the market processes," she said.
In the UK, the work for hire doctrine puts publishers in a better position to protect articles and work in the case of copyright infringement, but when a wide range of copyright owners is concerned, it can be difficult to enforce.
In countries where this doctrine does not exist and copyright is transferred from the creator to the employer, acting against infringement of content written by freelancers for example can be a nearly impossible task for a publisher who might not have an exclusive licence and has to defend thousands of cases of infringement.
A link tax?
Controversy continues to surround Article 11, which has been dubbed the "link tax" by some of those who oppose it.
NewsNow, a UK based aggregator, has also launched a petition gathering signatures from publishers to ask the commission to consider the interests of smaller publishers when making a decision. Struan Bartlett, founder and chief executive of NewsNow, outlined his concerns in a recent Journalism.co.uk podcast, explaining that some of the vague terms present in the current text of the law, such as "digital use", leave it open to interpretation.
"Preferential deals may be cut between the largest publishers and the largest traffic sources, and these preferential deals may then seek to exclude some of the smaller players, and this is why we think this seriously threatens to upset the open market in news."
But others, including Wade, believe the "link tax" label is opportunistic, and has been deployed as a zinger to rally the opposition.
"It is not a tax at all, there is nothing in the proposal that mandates anybody to pay anybody else so it is not a tax and it is not a mandatory licence. So it's actually quite simply untrue and misleading to call it a link tax," she said.
"There is nothing in the proposal that would say that individual readers can't post links to Facebook, Twitter or wherever. What we do object to is the systematic scraping of content by large organisations for their own commercial gain. It's trying to press the reset button and say it is not acceptable for commercial organisations to go around helping themselves to publishers' content."
The website publishersright.eu, which explains the case for the introduction of Article 11, points out that its introduction would mean publishers would gain additional revenues which would help stop the wave of redundancies in the media and even create new jobs.
But some are concerned the money might not reach the individual journalists. Mark Holderness, editor of londonfreelance.org, believes the current text should be clarified. "I think the proposal should be amended so that journalists are guaranteed a share of any income and that then needs to be a second stage to look at the entire chain of value of how the money goes from the readers' pockets and is shared out fairly between publishers and journalists," he told Journalism.co.uk.
Few are fully happy with the current text of Article 11. Wade, while supporting the neighbouring right, told Journalism.co.uk the proposal could be improved to include scientific journals, which, for now, are an exception.
For Article 11 to pass, it has to go through debates and votes in the council as well as the European Parliament, and a compromise solution has been suggested.
Reda told Journalism.co.uk the proposal by the Estonian delegation would address a number of concerns, as it would entitle publishers to license content on behalf of the author, unless the author objected, and enable them to sue in case of copyright infringement.
"A common argument by the publishers is that they need this new neighbouring right because they are not able to enforce the copyright of the journalists, so I think this would be a possible compromise proposal that would address this complaint by the publishers," she said.
Votes on Article 11 are scheduled for early October.
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