The European copyright directive /1: ancillary copyright, link-tax or what?

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The new Copyright Directive have been approved by the European Assembly with an important but not large majority: 348 in favor, 274 against, 36 abstention. Quite an important number of MEP avoided the voting, probably because they fear the revenge by citizens at next European elections in May. While the PPE (christian democrats) voted massively in favor of the Directive, other political parties , in particular S&D (socialists) and ALDE (liberals) were basically split.

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The completion of the legislative process

The path for the approval and effective application of the directive will still be long, although the concerned provision cannot change anymore. Council is expected to endorse very soon the same text approved by the Parliament (likely in April 2019) which then will be published in the Official Journal. At the point the legislative process will be duly completed. However, being a directive, the text still will need to be implemented into national law, and Member States will have 24 months time. Therefore, the concerned provisions are expected come into force in mid-2021.  

Implementation will not be an easy matter: especially with regard to the most controversial provisions, such as article 11 (now 15 with the new numbering) about the so-called linktax, and article 13 about liability of videosharing platforms and use of uploadfilters (now art. 17 with the new numbering) are written sometimes in a very vague way. The vagueness is not result of technical incapacity, rather it is the consequence of the difficulties in finding an acceptable compromise for everyone. Bismark’s saying whereby “Laws are like sausages. It’s better not to see them being made” is still valid more than ever.

As a final result, the new Copyright Directive risks to be implemented, interpreted and applied in many way from country to country. European Guidelines will probably facilitate more harmonization, however they will not be binding for national authorities.

The ancillary copyright 

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According to Art. 15 of the Directive (former art. 11) publishers  are granted a new ancillary copyright (pursuant to the Copyright Directive 2001/29/EC) for the online use of their press publications by “information society service providers”. The ancillary right will last two years after the press publication is published (art. 15(4)).

Remarkably, art. 15 will apply to any Internet service provider, with no exceptions about turnover, size and scope of the activity ecc. Being Google, a start-up, a charity or or an educational entity will be the same: there is no exemption (there might be an exemption just for persons, see below). This is the reason why Wikipedia has been so vocal against the reform. Someone believed that Wikipedia was exempted, but that exemption concerns just videosharing, not publishing rights (see art. 2(6)). Even a porte-parole of the European Parliament got confused on this matter:

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Surprise: the ancillary right is still a link-tax

According to art. 15(1)3, the ancillary right should nor apply to acts of hyperlinking, neither upon individual words or very short extracts of press publications (art. 15(1)4). What does this mean? The ambiguity of the provision is the reason why the name “link-tax” remains valid despite the attempts to remove it. The clarification that hyperlinks are not taxed per se is good but insufficient, since the social and economic value of hyperlinks derive from combination with words and images referring to the linked content. Should such words be more than one (at least 2) or form an extract which is not considered “short”, then the link-tax (or whatever is the name) will apply. In particular, it will not be possible to express with the hyperlink the title of the linked press article.

The only way to be safe would be to use hyperlinks combined with words disconnected or irrelevant from the content they refer to. However, this is not the way hyperlinks and the Internet work.

The way this provision will be applied from country to country may strongly vary. This the reason why Wikimedia Italia is so worried. In an exchange of tweets with a journalist of La Stampa, their worries are pretty clear:

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Will normal people be exempted? 

According to art. 15(1)2, the ancillary right should not apply to private and non-commercial uses by individual users. This is commendable, however the factual application may be very limited, since pure “Private or non commercial use” in the Internet is just theoretical. Internet services (blog, social platforms) normally require users to accept a set of contractual conditions which include eventual economic exploitation of content (mainly via revenue sharing of online advertising). Therefore, in order to make the exception valid, all Internet services should re-write their Terms & Conditions in order to clearly separate “private/non commercial” from “commercial” usage (even when commercial is just potential). This separation, however, may be burdensome and incompatible with current business models and, so far, no-one made an assessment to verify whether it can be made without affecting normal usage.

In any case, Internet providers will not be obliged to create such separation amongst their subscribers, with the consequence that the latter will remain in a limbo: private or commercial use? Who knows.

Will Google finally pay?

A part from the above, the greatest paradox is that the real objective of this fight, namely Google, may easily avoid the payment. The level of the fee payable with link-tax can be negotiated or even waived, therefore Google, thanks to its economic strength in the online world, could easily get the better conditions, or even pay ZERO as it already happened in Germany. Smaller Internet provider will not have the same privilege, though. Of course, one could start an antitrust action against Google for abuse of dominant position (in Germany someone did it), however Google is not dominant in the news aggregation market, therefore the action will likely fail.

At least, journalists will be paid more?

According to art. 15(5), journalists should receive an “appropriate” share of the revenues created by the link-tax. The provision does not provide further details and therefore it is expected to be applied pursuant to the willingness of publishers. This is a bad news for journalists who maybe had dreamed to be better paid.

[Another article on the upload filters to follow] 

 

 

7 Comments on “The European copyright directive /1: ancillary copyright, link-tax or what?

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