By Meghan Sali
December 2, 2015
OpenMedia original article
MEP Petra Kammerevert's Open Letter on copyright
I wish to thank you for your letter from the 24 November on the online platform public consultation and the copyright communication to be presented by the Commission on 9 December.
I agree with you that the Commission’s consultation should be comprehensive in gathering stakeholder’s opinions. I think it is wrong and misleading that, on individual points, the questionnaire of the online platform public consultation allows only content owners to answer. This is why I would be grateful if you and the organisations, who have signed the letter, could send your answers to these specific questions to me and other MEPs, who work on the legal framework applicable to online platforms. Moreover, I would advise you to provide the Commission with your position on these issues despite the limitations built into the questionnaire.
Furthermore, I believe that the Commission is free to give its opinion on topics in non-legal Communications. However, the public should have access to the results of the impact assessment before a legislative proposal is presented.
Moreover, it should be noted that there is no guarantee that the leaked copyright communication, to be presented on 9 December, will remain in its current form when published. Yet I do share your opinion that the leaked document seems to suggest that the Commission is favourably disposed towards an ancillary right provision for publishers at the EU-level.
I would like to reassure at this point of time that I do not support ancillary right provisions. I have openly voiced my point of view on the matter to representatives of the European newspaper and magazine industry. My current position is summarised below.
Situation in Germany: The ancillary right law (Leistungsschutzgesetz) of 2013 is to a large extent ineffective because publishers renounce on any licensing rights through an opt-in declaration. This opt-in declaration was examined by competition authorities and not rejected.1
In Spain, a law similar to the German Leistungsschutzrecht came into force on 1 January 2015, whereby search engines in principle are obliged to pay content owners a fee. However, the publishers’ expectations of being paid by Google did not materialise. The search engine giant simply switched off Google News in Spain.2 If you type “Google News Spain” in Google’s search engine, you can read Google’s own and impressive arguments on why they shut down the service.3
Shutting down the service hurts above all smaller publishers, which is detrimental to media pluralism.4
France did not go ahead with an ancillary right law, after Google put in place a fund for online media content of 60 million Euros in 2013. This initiative is also problematic from a media policy perspective because it may lead to an increased dependence on publishers in the long run.
Ancillary right was discussed or implemented three times and three times it was undermined or had no effect. One reason for its repeated failure was that those, who called for such a provision, gave in to Google in the end, having to negotiate with Google from a weaker position than before. This is why I am deeply sceptical about any merit in adopting such a law at the EU level. I would like to refer to considerable legal and political concerns, which are summarised in the footnote below.5
Press publishers need to stop seeing the Internet as a competing medium and especially to demonise search engines. Spiegel and ZEIT seem to have understood this better than others in Germany. It is our task to effectively support the publishers in the transformation process with other instruments.
An equally old debate as ancillary right is the reduced VAT rate for digital products from publishers. Called for from politicians across political parties since 2008 in Germany, this demand featured in the opinion of CULT on the “Digital Single Market Act” report.6 If publishers had fought for reduced VAT rate with the same intensity as they did for an ancillary right provision, they would have already benefited from substantial savings amounting to millions, which in France should exceed 60 million Euros. However, they instead put a lot of energy and time in persuading lawmakers and regulators to adopt a law, which has proven to have no positive impact for them.
I would welcome if you could send your answers to your members and trade associations. I will inform the Commission of my letter.
Compare with essay by Boris P Paal: Internet-Suchmaschinen im Kartellrecht in GRUR Int. 2015, 997, 1002 f.
Paal, ibid, pg 1004.
A summary of the critics in Germany: GRUR 2010, 808; Höppner in K&R 2013, 73ö Kühne, CR 2013, 169; Stieper, ZUM 2013, 10; Ernsthaler/Blanz, GRUR 2012, 1104; Ohly, WRP 2012, 41; Ott, K&R 2012, 556; Reinicke, MMR 2011; Frey, MMR 2010, 291; Schwarz, GRUR-Prax 2010, 283; Hegemann/Heine, AfP 2009, 201.
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-565 .210%2b02%2bDOC%2bPDF%2bV0%2f%2fEN Point 20: “Calls on the Commission, in order to improve acces to information and cultural goods, to present without delay a proposal to reduce VAT rates for the press, digital publishing, books and publications online in accordance with the commitments made”
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