EU Commission proposes new right for press publications

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The newspaper industry in in disarray because of the Internet, old business models are no longer working, and media empires need to contest with a changed environment. There are two ways of addressing the challenges ahead, to change business models, or to hire an army of lobbyists and lawyers to force policymakers to protect their dying empires. The media industry seems to have chosen the latter. A few weeks ago I reproduced the wise words of Shane Smith, warning precisely against this strategy:

“The media industry is reacting in the exact same way that the music industry reacted when peer-to-peer came and threatened them. Instead of innovating we’re retreating with a lot of lawyers surrounding us to hold on to our IP and our ever decreasing piece of the pie. And these lawyers are throwing roadblocks so that they can protect this stuff and whatever money is sloshing around.”

This paragraph is more relevant today after the EU Commission has published its proposal for a directive on on copyright in the Digital Single Market.

I am a positive kind of guy, so I read the proposal with an open mind, although my timeline was unanimously saying that this was a bad document.  There are a few things that didn’t seem so bad, mainly the proposal for the creation of a data mining exception, which is a subject close to my heart (for more about this, see this paper). There is also an exception of use of works for teaching activities, although this reads like a very diluted version of a workable idea. However, the data mining proposal has problems, and I will be covering those at a later date.

The section of the proposed directive that is grabbing all the headlines is Art 11, which will create a new right for press publications. The text extends two existing exclusive rights to press publications, namely the reproduction right and the right of communicating the work to the public. At the moment, the Information Society Directive contains an exhaustive list of beneficiaries of these rights, including authors, performers, phonograph producers, film producers and broadcasting organisations. Art 11 creates a new right lasting 20 years for press publications to object to the reproduction or the communication to the public of the digital use of their publications.

If this sounds bad, it is because it really is. What this means in reality is that linking to press publications could infringe copyright. Moreover, snippets and other small metadata could also be infringing copyright. The idea of this right is to make intermediaries pay to press publications for the use of snippets of their articles, something that was already tried in Spain, and it was a complete failure. Julia Reda MEP, who has been opposing the proposal, says:

“The planned special copyright for news sites would curtail freedom of expression on the internet and harm both small publishers and innovative startups. In the end, it will benefit nobody: Internet platforms and users alike will stop linking to EU news with the preview images and teaser snippets that drive traffic, but would now require licenses. Erecting toll booths on the way users arrive at EU news today won’t make up for declining newspaper revenues, but instead doom even their digital properties. The news industry’s troubles can’t be solved with copyright law.”

Similarly, COMMUNIA has released an excellent statement against the proposed changes:

“[…] the Commission’s proposal focuses on a wholly different goal: to minimize the impact of the fundamental changes brought about by digital technologies and the internet on legacy business models. Publishers get an ancillary copyright that already has proven itself worthless in practice. Access to most audio-visual content will continue to be hampered by geo-blocking (which the Commission had earlier committed to end), and online platforms might be forced to collaborate with rights holders on censoring content that is shared by users on these platforms. The whole package lacks forward-looking, innovation-friendly measures that embrace digitization as an opportunity for users, creators, businesses, and public institutions in Europe.”

And Google has also weighed in against the released text:

“We’re also disappointed to see a proposal for a new right for press publishers, despite tens of thousands of voices—including ours—calling for a different approach. The proposal looks similar to failed laws in Germany and Spain, and represents a backward step for copyright in Europe. It would hurt anyone who writes, reads or shares the news—including the many European startups working with the news sector to build sustainable business models online. As proposed, it could also limit Google’s ability to send monetizable traffic, for free, to news publishers via Google News and Search. After all, paying to display snippets is not a viable option for anyone.”

I agree with all of the above. The proposal is backwards looking, it is a step back towards useless copyright maximalism, it is trying to stop a fire with a children’s water gun. It is now up to us to try to fight this proposal by presenting evidence that it won’t work, the Commission seems to have completely ignored the many arguments against ancilliary copyright up to now.

In a related note, it’s been a while since I used my “copyright gone mad” tag.