Ancillary Copyright for Press Pub­lish­ers

Copyright law reform in the EU is a widely debated topic with hardened fronts. In addition to the pro­vi­sions contained in the draft law about upload filters, a major reason for this is the ancillary copyright law re­quire­ment for press pub­lish­ers. While many pub­lish­ers see the new law as restoring their rights in what they deem to be a legal vacuum, critics fear that freedom of in­form­a­tion and com­mu­nic­a­tion on the Internet will be re­stric­ted. After the crash landing and the lack of ma­jor­it­ies in the first vote, the EU states, the Com­mis­sion and Par­lia­ment have now agreed on a final reform text and finally adopted it. So what is it about ancillary copyright law that creates such con­tro­versy and what are the arguments for and against it?

Copyright law reform (previous EU reg­u­la­tions on copyright date from 2001) in the digital online market has been the subject of many, often heated, dis­cus­sions. Articles 11 and 13 of the new draft law are the par­tic­u­lar focus of public attention. The latter is now called article 17 and is meant to oblige online platforms to check content for copyright in­fringe­ments before it is published. However, critics suspect this may lead to the use of upload filters. Article 11, on the other hand, directly concerns ancillary copyright for press pub­lish­ers.

The final vote was preceded by major protests. More than 100,000 people took to the streets against the reform and Wikipedia in Germany switched off part of the online en­cyc­lo­pe­dia for a day. The EU Par­lia­ment nev­er­the­less decided to adopt the copyright reform: 348 MEPs voted in favour. On the other hand, there were 274 MEPs who voted against, and 36 abstained. After the approval of the European Council – a mere formality – the member states now have two years to translate the directive into national law.

In July 2018, under great public interest and scrutiny, the EU par­lia­ment voted on the draft and rejected it. Changes were made following this, most no­tice­ably with the removal of the term ‘upload filter’, and two months later par­lia­ment once again voted on it. In the second vote, the draft was passed with 438 votes in favour, 226 against and 39 ab­sten­tions.

However, the law had not yet been passed because the draft needed to pass through “trilogue ne­go­ti­ations” first. Rep­res­ent­at­ives from the EU Par­lia­ment, the EU Com­mis­sion, and the Council of Member States had to negotiate the final version. On the evening of Wednesday February 13^th, ne­go­ti­at­ors rep­res­ent­ing the European Par­lia­ment and ne­go­ti­at­ors rep­res­ent­ing the different EU member states finally agreed on a draft reg­u­la­tion of the new copyright law. Con­tro­ver­sially, Articles 11 and 13 were agreed to be included, creating both a wave of support and backlash from the community. The agreed upon le­gis­la­tion had to be passed by the European Par­lia­ment. However, there was wide­spread protest­ing, including an online petition against the le­gis­la­tion that was signed by several million people.

Ancillary copyright (also known as the link tax) is intended to protect pub­lish­ers from their published texts or parts thereof being made available on other sites free of charge. The law therefore stip­u­lates that, in the future, website operators will have to pay pub­lish­ers if they collect editorial content from the internet and link it to a headline or a short preview (“teaser”) on their page.

For example, if you search for an event on Google News, the search engine will show you numerous articles from different online news­pa­pers. They have not actually written this content, instead the search engine finds the texts on the internet and uses them to compile search results that are then displayed to you. In fact, this can also be seen as an advantage for the in­di­vidu­al newspaper pub­lish­ers, as the search results link directly to their websites, sub­sequently at­tract­ing more readers and gen­er­at­ing even higher ad­vert­ising revenues.

Google also in­teg­rates headlines and entire sections of texts into the preview. For this reason, pub­lish­ers fear that many users will be content to just read the Google overview and won’t continue reading the rest of the article on their own website. This means that only Google get ad­vert­ising revenue without having to produce any content of their own.

Aside from Google, there are plenty of other sites that collect content, display a teaser and then link from an external site. Examples of these ag­greg­at­ors are:

• Yahoo News
• Rivva
• Newstral
• Flipboard
• Any kind of RSS reader

The wording of the final agreement is con­sidered ques­tion­able by critics. The EU Par­lia­ment’s position, for example, is that when an article is linked, the complete title or teaser (section of the text) cannot be used by the copyright holder without a cor­res­pond­ing license. However, the hyperlink itself and in­di­vidu­al words should remain legal even without consent. It is still unclear how many words will be allowed.

Re­strict­ing the law to com­mer­cial providers also raises questions. According to the law, research purposes and private use should be exempt from licensing. However, it remains unclear what ul­ti­mately counts as private use. Some critics fear that this would only affect links that are not visible to the general public. In this scenario, for example, non-com­mer­cial bloggers would also have to obtain the press publisher’s per­mis­sion (with possible fees required) before they publish a link including a heading. Other observers wonder whether sharing an article on Facebook or Twitter can actually count as private use. Despite the text being shared by a private in­di­vidu­al, it is happening on a com­mer­cial platform that would remain the be­ne­fi­ciary even in that case.

Whilst one can take action against the un­au­thor­ised pub­lish­ing of entire articles thanks to copyright guidelines, this does not apply to short text passages and headlines in­teg­rated in preview mode. So far, pub­lish­ers, editors and authors have been unable to take action against this kind of ex­ploit­a­tion. It is precisely this gap that the ancillary copyright law for press pub­lish­ers intends to close. Aside from text content, it also affects thumb­nails from the publisher used in articles.

Opinions on ancillary copyright differ: in Germany where this law is already in place, several large pub­lish­ers and the Federal As­so­ci­ation of German Newspaper Pub­lish­ers are amongst those in favour of the law. However, Internet companies, network activists and different online and media or­gan­isa­tions and as­so­ci­ations have come out against the link tax. Similar trends in support and res­ist­ance have been seen across the EU at the proposed block-wide le­gis­la­tion.

Many pub­lish­ers argue that their in­tel­lec­tu­al property on Google or other search engine pages is in­suf­fi­ciently protected. In contrast to the film and music industry, there is a gap in pro­tec­tion for editorial con­tri­bu­tions. This is used by internet portals and ag­greg­at­ors. They take away important ad­vert­ising revenues from pub­lish­ers and are partly re­spons­ible for the rapid decline in newspaper and magazine sales. This in turn threatens in­de­pend­ent, high quality journ­al­ism.

Opponents of ancillary copyright note that pub­lish­ers already have all options available to them to protect their content from being used by ag­greg­at­ors. On the one hand, copyright also applies to editorial texts; on the other hand, it is possible to regulate inclusion in Google’s directory without a lot of effort, or prevent it entirely. For example, this can be achieved by in­teg­rat­ing a robots.txt-file on the web server.

In their opinion, ancillary copyright for press pub­lish­ers is just a link tax that only large pub­lish­ers benefit from, with actual authors and journ­al­ists missing out on the revenues. The ob­lig­a­tion to pay pub­lish­ers even for small pieces of text and headlines also restricts freedom of in­form­a­tion and com­mu­nic­a­tion and puts smaller content producers like bloggers or freelance journ­al­ists at a dis­ad­vant­age.

Some pub­lish­ers them­selves are also opposed to an EU-wide ancillary copyright law. They see Google and other ag­greg­at­ors as important channels through which numerous visitors become aware of their articles. The ad­vert­ising revenues generated by visitors channeled through Google have become in­dis­pens­able.

Ancillary copyright law was in­tro­duced in Germany in 2013 and is still valid. However, not a lot has actually changed, as many pub­lish­ers have paid more in legal costs than they have ever received in license payments. Google, on the other hand, has received free licenses from many pub­lish­ers to continue col­lect­ing and linking their content free of charge. Less popular ag­greg­at­ors, on the other hand, were con­fron­ted with problems that they could barely solve. In many cases, they had to change or dis­con­tin­ue their business model. The main be­ne­fi­ciar­ies have been large cor­por­a­tions, whose market power should be re­stric­ted by law.

Aside from Germany, Spain is the only other EU country to have adopted ancillary copyright laws. Their link tax went a step further than in Germany, removing the option for pub­lish­ing companies to waive fees and allow news aggregate sites to feature their content for free in exchange for links. This had serious con­sequences for small providers of Spanish news – small providers and in­de­pend­ent bloggers had their live­li­hoods ef­fect­ively wiped out. Legal grey areas forced them to abandon their busi­nesses, or radically change their in­nov­at­ive business models. On an even larger scale, in 2014, Google News decided to shut down op­er­a­tions in Spain as a result of the le­gis­la­tion in question. While other ag­greg­ates like Yahoo and Rivva still operate in Spain, the outcome of these changes led to an estimated €10 million (close to $12 million) in losses per year for the pub­lish­ing industry.

Many advocates of the EU Per­form­ance Pro­tec­tion Act believe that the problem with these national laws lies in how small the re­spect­ive markets are. Germany which has 82 million in­hab­it­ants, or Spain which has 47 million, are just not relevant enough for large cor­por­a­tions like Google. A common European law would change this.

The in­tro­duc­tion of ancillary copyright in the EU could have several con­sequences: it will most certainly reduce the amount of in­form­a­tion available to people inside the EU, either because Google and other ag­greg­at­ors restrict their news, or because smaller magazines and bloggers lack the ability to link content free of charge.

Whilst there is a pos­sib­il­ity that an EU-wide im­ple­ment­a­tion of the proposed link tax could affect pub­lish­ers, aggregate sites and news consumers, Brexit could still put a stop to it. Further voting on various aspects of the le­gis­la­tion will take place in September. Should they pass, it is nev­er­the­less still unclear when any proposed changes to EU law would be im­ple­men­ted. However, it is still worth keeping an eye on de­vel­op­ments on this topic, as internet freedom is a hotly debated topic all over the world today.

Past ex­per­i­ence shows that link taxes are most likely not the best way to protect in­de­pend­ent and diverse journ­al­ism – in many cases, even the opposite turned out to be the case, and news­pa­pers lost revenue. Critics not only warn against excessive bur­eau­crat­isa­tion of the internet but also of large media groups gaining and con­sol­id­at­ing power through this law. In their opinion, re­strict­ing link texts also inhibits free opinion exchange on the internet.

Please note the legal dis­claim­er relating to this article.