Whether it’s music, photos, or graphics: an engaging website is full of visual elements and multimedia content. But not every website operator has the means to fill their site with their own professional images or music. A good alternative here are works published under a Creative Commons licence – they’re free to use and some can even be used commercially.
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. Whilst 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. However, this does not mean that the most controversial points have been resolved yet. So what is it about ancillary copyright law that creates such controversy and what are the arguments for and against it?
- One step closer to a European-wide ancillary copyright law for press publishers
- Explanation: What is ancillary copyright?
- What is covered by ancillary copyright law for press publishers?
- What are the arguments for and against ancillary copyright?
- What is the current ancillary copyright law in Germany?
- What is the current ancillary copyright law in Spain?
- What will change if this EU copyright law is adopted across the block?
- What effects could an ancillary copyright law have in the EU?
One step closer to a European-wide ancillary copyright law for press publishers
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 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.
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 has not yet been passed because the draft needs to pass through “trilogue negotiations” first. Representatives from the EU Parliament, the EU Commission, and the Council of Member States must negotiate the final version. On the evening of Wednesday February 13th, 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 have agreed to be included, creating both a wave of support and backlash from the community. The agreed upon legislation must now be brought to a vote in the European Parliament, and is likely to take place as early as the end of March, or in April. Observers assume, however, that the adopted text will also be adopted in its current form. It would be very unusual if Parliament were to reject a text drafted jointly by the three EU institutions.
The European Council will also need to approve the laws. However, during the last vote there were only 8 votes to block the legislation, not enough to cause a veto, making it likely that the Council will vote to adopt the law.
This leaves the question of the law’s future in the hands of the European Parliament, where opinions are mixed. Critics have just a few weeks to lobby European Parliament members to vote against the legislation. In the event of the European Parliament voting against it, work on the reforms will likely be postponed to after the European elections in May, although it may be possible to push the reforms through without Articles 11 and 13.
The negotiations have shown that offers such as Google News may in future continue to refer to articles with hyperlinks even without a licence, but may also use individual words or short text excerpts, but the naming of the complete heading should not be possible without permission.
Explanation: What is ancillary copyright?
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
- 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.
The proposed legislation excludes private users from the chargeable link, but leaves unclear whether the term ‘private’ refers to non-commercial or non-public use. Whether ancillary copyright affects bloggers or social media influencers remains to be seen.
Restricting the law to commercial providers also raises questions. According to the draft, 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.
What is covered by ancillary copyright law for press publishers?
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.
What are the arguments for and against ancillary copyright?
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.
What proponents argue
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.
What critics argue
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.
What is the current ancillary copyright law in Germany?
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.
What is the current ancillary copyright law in Spain?
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.
What will change if this EU copyright law is adopted across the block?
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.
What effects could an ancillary copyright law have in the EU?
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. There is a good chance Britain would arrive at their EU exit date of March 29th 2019 before any EU-wide ancillary copyright laws are passed. 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.