Intellectual Property

Copyright, Competition, and Controversy: Press Publishers’ Right under the European Copyright Directive

Introduction

The European Copyright Directive has been adopted by the European Union member states with the objective of preventing online content exploitation and ensuring that the content creators get due recognition for their work. In other words, it seeks to uniformly regulate copyright in the digital age. This directive has been adopted in order to reform Europe’s eighteen-year-old copyright laws as it was felt that it no longer sufficed for the digital age.  However, the directive has drawn severe criticism from online platforms such as Google, YouTube and other major industry leaders owing to some controversial provisions [i]. It has also divided the public opinion- there are those who believe that this directive will prevent unauthorized use of online content whereas there are those who believe that this directive will be used effectively as a censorship tool. In this context, it is pertinent to discuss two of its most controversial provisions- Article 15 pertaining to publisher’s right and Article 17 pertaining to online content sharing platforms [ii]. These provisions have been incorporated with the objective of reviving revenue in the publishing sector. It is important to note here that online platforms and online news aggregators are often blamed for the decreased revenue in the publishing sector. This is because through the medium of online platforms, the unauthorized use of content has become increasingly easy thus making it impossible for the original content creators to regulate the circulation of their own content.

What Makes Article 15 Controversial?

The provision makes it clear that any use or display of content other than ‘snippets’ or ‘short extracts’ by the online platforms will require a license.  The aim of this provision is to provide protection to publishers by preventing online platforms from using their work for commercial purposes and committing copyright infringement. As per the provision, publishers are given exclusive rights for the circulation of their content and these rights are valid for a period of two years. In other words, Article 15 provides for an ancillary copyright law- meaning that online content sharing platforms are required to obtain a license before using any online content [iii]. The reason why this particular provision was earlier referred to as link tax by critics is because it imposed an obligation upon online content providers such as media aggregators to provide remuneration to the publishers for any unauthorised use of their content even if the content has been used through the use of hyperlinks [iv]. However, after much criticism, the provision has been amended and has made certain exceptions for usage of content by online content sharing platforms. The use of hyperlinks, non-commercial use of press publications by individual persons or use of snippets has been excluded from the scope of this article. According to the critics, Article 15 is quite ambiguous when it comes to specifying what qualifies as unauthorised use of content. Apart from that, there are many who believe that it imposes a restriction on freedom of expression and makes it difficult for the masses to access online content.

How does Article 15 impact online content sharing platforms?

There is no denying the fact that with the increase in online content sharing platforms and media aggregators, there has been a significant decline in press publisher’s revenue. It has been envisioned by the European Union that the introduction of a new neighbouring right of press publishers would help in commercializing their content once again.  The EU copyright directive essentially seeks to hold online content sharing platforms and aggregator sites liable for copyright infringement. This will definitely have a negative impact on the revenue of these tech companies as it will be directed towards the press publishers.

What Makes Article 17 Controversial?

Article 17 of the EU Copyright Directive was earlier known as Article 13. Article 17 has proved to be a controversial provision as it has imposed certain obligations upon online content sharing platforms. Through the medium of Article 17 of the EU Copyright Directive, the EU seeks to limit the unauthorized circulation of copyrighted material on online platforms. According to Article 17 of the EU Copyright Directive, online content sharing platforms can be held liable for copyright infringement even if the copyrighted content has been uploaded by the users. The supporters of this provision are majorly publishers, artists and artists who argue that this provision protects their intellectual property from major online content sharing platforms like YouTube, Google etc. On the other hand, the critics of the provision argue that these provisions are unreasonable as the online content sharing platforms cannot regulate what the users upload.

Will the new EU Copyright Directive make the press publishing industry more commercially viable?

The critics of the EU copyright directive are of the opinion that it has been drafted and adopted in a haste manner. The argument that it is an irrelevant IP measure that isn’t adequate to address the slump in the press publishing industry is quite popular among the critics. It is important to take note of the fact here that the EU hasn’t tried to examine the cause behind the decrease in the commercial viability of the press publishing sector and has directly arrived at the conclusion that online content sharing platforms are responsible for it. Additionally, article 15 limits internet freedom which is frowned upon by the critics [vi]. Accordingly, the debate surrounding the new EU Copyright Directive has generated many questions, the most prominent one being: Is the new copyright directive truly feasible in the context of generating revenue for the press publishing industry? In order to answer this question, it is imperative to discuss the viewpoint of academics on the EU Copyright Directive.

Criticism Against the EU Copyright Directive

In a final appeal to the European Parliament, the academics who are distinguished professors in the field of intellectual property law across Europe addressed an open letter to the European Parliament highlighting the unsoundness of the new EU Copyright Directive in a bid to prevent its approval[vii]. According to their detailed letter, Article 11 of the EU Copyright Directive is a bad legislation as it will ultimately result in:

  • limiting the free flow of important information that is an integral part of democracy
  • increased difficulty for users to access news content due to an increase in transaction costs. In other words, reading news will become more expensive.
  • harming news journalists, content creators, photographers etc. with non- institutional affiliations. The freelancers will especially be harmed by this legislation.
  • The legislation has the potential to benefit more established leading media agencies. If this happens, it will further encourage the existing power dynamics in the media industry.
  • The introduction of this legislation would lead to a problem of increased fake news.
  • This legislation has no economic justification as it fails to address the problems that the press publishing industry as well as media agencies face. This provision of the new EU Copyright Directive will not lead to a revival of revenue for the above-mentioned industries.

Another significant point that has been raised by the academic community is that the emergence of online media has resulted in increased enjoyment of freedom of expression, a right that has been guaranteed under the Charter of Fundamental Rights of Europe and the European Convention on human rights. Instead of helping the journalism industry, the press publisher’s right that has been guaranteed under the EU Copyright directive will seriously harm the online media services and restrict the scope of circulation of information. Additionally, it has to be kept in mind that the press publisher’s rights are already protected as per the European Union law.  They are entitled to enforce their rights against those who use their work without authorization for commercial purposes.  Even without the implementation of the EU Copyright Directive, a license is required for using the press publisher’s work for any profitable / commercial purpose. Therefore, the introduction of a new provision for safeguarding the press publisher’s rights has been considered to be quite redundant.  Coming to the issue of fake news, it has been argued by the academics that instead of combating the problem of fake news, the new EU Copyright Directive will force online content platforms to create fake news in order to attract users. Therefore, the new legislation will prove to be counterproductive.

The criticism levelled against Article 15 and Article 17 of the EU Copyright Directive hasn’t just come from the academic community. Several international centers and organizations have also come forward in opposition of these provisions. The Association for Progressive Communications, has released an open letter addressed to the European Parliament. In its letter, the APC has drawn attention towards the potential fundamental and human rights questions that have arisen with respect to the obligations that have been imposed upon online content sharing platforms by Article 17. In January 2019, LIBER (Association of European Research Libraries) signed an open letter calling for deletion of Article 11 and Article 13 (earlier versions of article 15 and 17) from the EU Copyright Directive [viii]. Even the United Nations free speech rapporteur David Kaye has criticized the new EU Copyright Directive[ix]. Despite the objection from various organizations and the academic community across Europe, the EU Copyright Directive has been approved by the European Parliament.

The Case of Germany and Spain

This is not the firm instance where the publisher’s right has been experimented with in the European union member states. Both Germany and Spain have tried to safeguard the publisher’s rights in an effort to boost the press publishing industry[x]. However, the legislation failed to turn out as it had been envisioned by the two nations. In the past, Google has heavily opposed article 13 and article 17 of the EU Copyright Directive as it has had prior experience of dealing with such legislation in Spain and Germany. In the case of Germany, a group of press publishing companies tried to impose an obligation upon Google to remunerate them in case snippets of their articles were being featured on Google News. Google refused to do the same and ended up stopping the listing of their articles on Google news. Consequently, there was a decline in the traffic to the sites of press publishers and Google was granted an exemption from paying any tax for listing their articles [xi].

Taking note of the fact that Germany’s legislation had been inadequate in providing for ancillary copyright, Spain introduced a legislation that made it mandatory for publishing companies to charge ancillary copyright fees. In response to this legislation, Google shut down the operation of google news in Spain thus harming the publishing industry and especially the small publishers. Both these countries passed legislations that can be termed as ‘link tax’ which resulted in doing more harm than good to the publishing industry [xii]. The case of Spain and Germany has set a  precedent that major online content sharing platforms are not afraid of retaliating against legislations that disproportionately harm their interests. The question that has arisen after Germany and Spain’s failed experiment with protecting publisher’s right through an ancillary copyright law is that – whether Google will retaliate in a similar manner or not?  One thing has become clear: the future of Google News in Europe remains uncertain and if Google decides to pull out Google News from EU member states, then that would cause significant harm to the European publishing market [xiii]

Conclusion

One of the strongest supporters of the EU Copyright Directive has been France. In 2019, France became the first EU member state to have officially adopted the new directive thus imposing a link tax upon online content sharing platforms for any unauthorized use of content. However, tech giant Google has refused to pay this ‘link lax’ for displaying snippets of news on google tax [xiv]. Google’s refusal to comply with France’s new copyright law is a huge disappointment for the country as it hoped to generate more revenue after adopting the EU Copyright Directive. One thing has become clear after this- major tech companies like Google won’t accept the EU Copyright Directive without retaliation. The removal of google news from Europe remains a very possible tactic that Google can adopt in order to refrain from paying a link tax. One thing has become clear- the EU has failed to address the various problems plaguing the publishing industry that have resulted in its decreased revenue.

This article can be cited as:

Vaishnavi Chaudhry, Copyright, Competition, and Controversy: Press Publishers’ Right under the European Copyright Directive, Metacept- InfoTech and IPR, accessible at https://metacept.com/copyright-competition-and-controversy-press-publishers-right-under-the-european-copyright-directive.

References:

[1] Todd Spangler, EU Approves Revamped Copyright Rules, Which Would Force Internet Companies to Proactively Block Protected Content, The Variety, Dec. 13, 2019, https://variety.com/2019/digital/news/eu-copyright-rules-article-13-youtube-1203138887/.

[2] Vincent Kessler, Your memes are safe, but these are the other fiercely opposed changes Europe is making to the Internet, Business Insider, Mar. 26, 2019, https://www.businessinsider.in/politics/your-memes-are-safe-but-these-are-the-other-fiercely-opposed-changes-europe-is-making-to-the-internet/articleshow/68586024.cms.

[3] Ancillary Copyright for Press Publishers, Digital Guide IONOS, Mar. 28, 2019, https://www.ionos.com/digitalguide/websites/digital-law/ancillary-copyright-for-press-publishers-in-europe/.

[4] Lorcan Tiernan, The EU Copyright Directive – Controversial Policing Of Online Copyright, mondaq, June 5, 2019, https://www.mondaq.com/ireland/copyright/811948/the-eu-copyright-directive-controversial-polici ng-of-online-copyright.

[5] Robert B., Complying With Article 17 of the EU Copyright Directive, TermsFeed, July 6, 2020, https://www.termsfeed.com/blog/eu-copyright-directive-article-17/.

[6] Ryan Browne, What Europe’s copyright Overhaul means for YouTube, Facebook and the way you use the internet, CNBC, Mar. 29, 2019, https://www.cnbc.com/2019/03/28/article-13-what-eu-copyright-directive-means-for-the-internet.html.

[7] Academics Against Press Publishers Right, IViR, June 6, 2018, https://www.ivir.nl/academics-against-press-publishers-right/.

[8] Copyright Reform: LIBER Signs Open Letter Calling For Deletion of Articles 11 and 13, Association of European Research Libraries, Jan. 29, 2019, https://libereurope.eu/blog/2019/01/29/copyright-reform-liber-signs-open-letter-calling-for-deletion-of-articles-11-and-13/.

[9] Emma Woollacott, Copyright Directive Threatens Freedom of Expression, UN Official Warns, Forbes, Mar. 12, 2019, https://www.forbes.com/sites/emmawoollacott/2019/03/12/copyright-directive-threatens-freedom-of-expression-un-official-warns/.

[10] Mason Sands, The Fight Over The EU’s Copyright Directive Is About To Get Local, Forbes, Mar 26., 2019, https://www.forbes.com/sites/masonsands/2019/03/26/the-fight-to-saveourinternet-is-about-to-get-local/#4ffc2b4d604e.

[11] David Meyer, Google Once Cited EU’s Copyright Reforms as a Business Risk. Now they’re a Reality, Fortune, Mar 26, 2019, https://fortune.com/2019/03/26/eu-copyright-directive-google-news/.

[12] Matt Reynolds, Google’s Article 13 link text threat has put publishers on red alert, Wired UK, Nov. 21, 2018, https://www.wired.co.uk/article/article-13-link-tax-eu-11.

[13] Lucy Handley, Google warns its news site could shut down in Europe if a new ‘link tax’ goes ahead, CNBC, Nov. 19, 2018, https://www.cnbc.com/2018/11/19/google-warns-news-could-close-in-europe-if-new-link-tax-goes-ahead.html.

[14] Mar Masson Maack, Google’s unsurprising refusal to pay for news snippets under mines new EU copyright law, thenextweb, https://thenextweb.com/google/2019/09/25/googles-unsurprising-refusal-to-pay-for-news-snippets-undermines-new-eu-copyright-law/

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