I have good news and bad news. The good news is that the EU is not about to make linking illegal. The bad news is that the latest proposal from the EU Commission leaves open the door for the creation of an ancillary copyright that would affect the way in which we embed and aggregate content.
For context, some weeks ago I wrote about a leaked draft proposal by the European Commission, which raised the alarm that things are about to change for the worst with regards to the right of communication to the public. According to the leaked document, copyright holders are concerned about their content being monetised by others, without licensing, through content aggregation. This is where a rights holder or creator releases their own content online, which is then aggregated by a third party, re-packaged and re-sold.
Now the Commission has published the final communication, and the text contains some worrying aspects. As mentioned already, the text will not propose a change in the law immediately, but it asks for a consultation process that could leave the door open for the creation of a damaging new exclusive right of authors that could allow them to object to links to their content posted online. The Commission concentrates on the issues of aggregated services, they explain:
“[…] From a copyright perspective, an important aspect is the definition of the rights of communication to the public and of making available. These rights govern the use of copyright-protected content in digital transmissions. Their definition therefore determines what constitutes an act on the internet over which creators and the creative industries can claim rights and can negotiate licences and remuneration. There are contentious grey areas and uncertainty about the way these concepts are defined in EU law, in particular about which online acts are considered ‘communication to the public’ (and therefore require authorisation by right holders), and under what conditions. These questions create on the one hand uncertainty in the market and, on the other, put into question the ability of these rights to transpose into the online world the basic principle of copyright that acts of exploitation need to be authorised and remunerated. Apart from its significance for the fair distribution of value in the online market place, lack of clarity on the definition of these rights can also generate uncertainty for ordinary internet users.”
While this sounds tame in principle, it could go horribly wrong. The problem is that communication to the public is intrinsically linked to hyperlinking, which is the way in which we make content available online. Communication to the public is an exclusive right of authors, and the question would be whether a rightsholder can object to the way in which their content is being shared online. An important aspect of the Internet is that users do not need permission to link to content, the courts have been asked to draw the line of where the limits of this right lie, and so far, most of the cases seem to follow a logical approach, and have tended to rest on the lie of sanity.
The hyperlink so far has remained safe.
The problem is that any tinkering with the right of communication to the public could break the balance. If you give owners too much power, we could find a situation in which linking to content would no longer be safe, which could break the way in which many vital services operate, such as search engines. Thankfully, the Commission has not proposed to make changes right away, and it will open a consultation. They say:
“The Commission is reflecting and consulting30 on the different factors around the sharing of the value created by new forms of online distribution of copyright-protected works among the various market players. The Commission will consider measures in this area by spring 2016. The objective will be to ensure that the players that contribute to generating such value have the ability to fully ascertain their rights, thus contributing to a fair allocation of this value and to the adequate remuneration of copyright-protected content for online uses.
In this context, the Commission will examine whether action is needed on the definition of the rights of ‘communication to the public’ and of ‘making available’. It will also consider whether any action specific to news aggregators is needed, including intervening on rights. The role of alternative dispute resolution mechanisms will also be assessed. The Commission will take into account the different factors that influence this situation beyond copyright law, to ensure consistent and effective policy responses. Initiatives in this area will be consistent with the Commission’s work on online platforms as part of the digital single market strategy.”
So we need to rally around the defence of leaving the situation pretty much as it is now, without giving new powers to rightsholders in the shape of ancillary rights. Thankfully, there are indications that any change in the way hyperlinking works will be met with opposition. A few days ago several European publishing associations across Europe called on the Commission not to create any new ‘ancillary rights’ triggering mandatory payments. Similarly, Pirate MEP Julia Reda has already been fighting against ancillary copyright. Finally, a coalition of civil society organisations have started the #SaveTheLink campaign.
Join the fight to save the link.