October 12, 2017
EU Parliament’s own report says ditch the controversial link tax
This week we celebrate a huge win for Internet users as a study, commissioned by one of the key parliamentary committees and written by top copyright law experts, agreed with what we’ve been saying all along:
The link tax – what the law calls a neighbouring right – is a real threat to the hyperlink, and it should removed from the draft law.
This is not the first such study to have drawn these conclusions. This report from 2015, this one from 2016, and this from 2017 have all expressed the same concern. Despite this, these issues have so far not been adequately addressed. But this time the evidence comes from within the European Parliament’s own think tank - a vindication that will be hard for MEPs to ignore.
The report draws on hard evidence, interviews and past research, and examines in 100 pages of glorious detail what will happen if this law is introduced. And we did the reading for you too.
The link WILL be hurt
“The implications of Article 11 for the re-use of snippets are, in our opinion, extremely serious.” p40
The report address the argument that has been made by the European Commission and by the big media lobbyists pushing for these rules: that hyperlinks won’t be affected at all. Over and over, we’ve seen them try to reframe this to hide their intentions, ignore the public’s voice and act like it’s all in our heads.
However, the research released yesterday shows that politicians should actually be stepping up to Save the Link. It examines how the legal status of hyperlinking itself has been changing whilst this law has been in debate. Recent Court judgements mean that various uses of hyperlinks can lead to being accused of copyright infringement, and thus “it is not possible to declare that the ancillary right has nothing to do with linking.” p41
We’ve previously been assured that even if hyperlinks would be impacted, it would only be big business who get charged for using them. But there is no protection for Internet users sharing news stories and links in the draft law. The ambiguity around the definition of posting content ‘for profit’ (ie, posting on Facebook might not be for your profit, but it is for theirs) means that “no policy-maker can say with much confidence that the ancillary right will never implicate hyperlinking by individual users.” p42
The experts conclude that as the rule stands: it will impact links and it would see people charged for sharing links.
“So, let’s be honest: we are not only granting a new related right to the press publisher, we’re stating that regardless of the European Court of Justice rulings, search engines, news aggregators, and anyone in social media making a link to available contents should acquire a copyright licence and a related rights licence to link to those contents.” p34
The hyperlink is the building block of the web
We’ve always said that it is reasonable for the news industry to look for new ways to pay journalists - but just not at the expense of the hyperlink. The nature of the link, as a basic building block of the web that must be defended, was why we started the ‘Save the Link’ campaign.
The authors of the study interviewed editors and journalists, as well as aggregators and collecting agencies (all the bodies involved) in Spain and Germany, where similar law already exists.
They found that amongst the industries who claim the most need for a link tax, those working at the coalface had that same core concern for saving the link that we do.
“All online journalists we spoke to emphasized that the architecture of the web is built on links, quotations and snippets.”p34
One journalist said “Paying for links is as absurd as paying for citations in the academic world would be.” Another German news editor even pointed out, “It is inconceivable that requiring a licence can be good idea.”
We absolutely accept that algorithms for search results puts a lot of power in the hands of big companies - but as one journalist put it, “If one is of the opinion that Google has a monopoly, then this should be tackled via the relevant, existing laws. To argue that one must change the architecture of the Internet to tackle this, is like saying that we drain the sea to fight pirates.”
Why a link tax anyway?
Big publishing lobbyists have also tried to persuade politicians that a link tax is something based in moral justice: that they are owed money from search engines and aggregators who make money from linking to them. They argue that this additional copyright over the uses of links is what they deserve.
But even here, researchers are cynical that the decline in news sales can be laid at the feet of sites like Reddit: “These are simply changes in the newspaper market that have little, if anything, to do with the supposed “unethical” free riding of other internet operators.” In fact, “there is little evidence that the decline in newspaper revenues has anything to do with the activities of news aggregators or search engines” p18
This report goes on slam the idea that a revenue problem could be solved by new copyright laws. These media companies already have many types of copyright, including a database copyright, and copyright over the content of their authors: “it is not obvious how adding more rights of the same scope and depth, can help. This leads to the suspicion that the proposed right is in fact intended to be stronger than conventional copyright.
If the rights are stronger, then a whole new set of objections arise, many relating to freedom of expression. It is on the basis of this assumption that Article 11 has been caught up in the “Save the Link” campaign." p23
This proposal is being pushed for by lobbyists in the name of ‘press plurality’ whilst benefiting only the largest players in the industry – those who will be able to charge fees for links and who have all the power at the negotiating table.
Real cynics might even suggest that the proposal is set up to further solidify the power of old media, not to revolutionise contemporary business.
After all, the evidence shows that the biggest few companies don’t rely on search engines in the same way as digital-only news, or smaller niche sites do: “For the quality press, most readers come directly to their home page (including visits via the official App). Smaller players rely more on traffic directed by third parties.”
Making it harder for news to be shared, and boosting monopolies will harm our fundamental rights to access to information and to free expression. The moral case is very much against a link tax, not for it.
The researchers look at several other criticisms that have been raised: the harm to open access, the lack of legal clarity, the question of if we’ll be charged just for quoting from news articles too.
Whilst many amendments to the law have been proposed to try to address various problems, again the experts agree with us “none of the Committees have found the ideal solution to the conundrum.”
The problem is the new right itself, something that a few tweaks to phrasing cannot solve.
They draw the final conclusion “that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. ” p13
We agree. Removing the press publishers right, but giving them greater powers of enforcement for infringement would help the media, without harming the sharing of information.
We hope MEPs voting on the link tax rules, and all decision makers involved, will take the recommended action in response and remove provisions for a link tax completely from the copyright proposals currently on the table.
The report “Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive” is written by Professor Lionel Bently, Professor Martin Kretschmer, Tobias Dudenbostel, María del Carmen Calatrava Moreno, and Alfred Radauer.
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