Record labels 2.0: how publishing giants are framing their push for the link tax

If you've been asking yourself "who's behind this push for the link tax?" look no further than giant publishing houses and their lobbyists hoping to become like the next generation of record labels. But how are they framing their bid for more copyright control? Read on to find out.

In recent weeks, publishing giants in the European Union have been pushing hard for a law implementing ancillary copyright – a pernicious concept that we regularly refer to as the ‘link tax’ and that would restrict the rights of Internet users to access information online and put a huge strain on innovators and startups within the EU.

If this is the first you’re hearing of it, now is the perfect moment to read our “What the heck is ancillary copyright” primer.

Instead of looking to their own outdated business models as the source of their woes, legacy publishers hoping to shore up flagging profits have instead turned their attention to the everyday behaviours of Internet users, looking for an opportunity to make money from those activities. And in the last year, they seem to have zeroed in on one of the most obtuse solutions: charging to link to their content.

But if we zoom out, it becomes clear that this isn’t the first battle huge publishers and their associations have fought against our industrious friend, the hyperlink. The Svensson case is the seminal example of when publishers took the link to the highest court in the EU, seeking a favourable interpretation that linking to content without the permission of the rightsholder was tantamount to copyright infringement.

Yes, you read that right. They were hoping the court would conclude that linking to freely available content online, without the permission of the rightsholder, was copyright infringement.

Despite their sincerest wishes for this to be settled in their favour, in 2014 the Court of Justice of the European Union (CJEU) ruled that linking to content did not constitute, in lawyer-speak, “a communication to a new public.” For the rest of us, that means that we continued to be able to link to content without fear of running afoul of the law, and services that aggregate links – websites like Flipboard, Google News, or eufeeds – could continue to run their services without being crippled by legal uncertainty.

More recently, however, these publishing giants have been working hard to shed a rosy light on their quest to undermine our freedom to link. After all, it doesn’t give Internet users, innovators, or even many small and medium sized publishers themselves the warm and fuzzies to think about huge publishing houses having a stranglehold on access to information online.

In fact, last month, the European Commission opened a new consultation on “the role of publishers in the copyright value chain.” (Read: can we drum up support to implement ancillary copyright EU-wide?) This, despite over 10,000 responses to the consultation on the role of online platforms which concluded earlier this year, the vast majority of which decried this attempt to give huge publishers even more control over how we share and collaborate online, letting copyright gobble up public space.

This continued pursuit of link tax laws also flies in the face of the European Parliament’s firm rejection of ancillary copyright amendments to MEP Julia Reda’s copyright report last summer, and, more recently, an influential open letter signed by more than 80 MEPs, putting forward a firm “no” to this instance of reckless copyright expansion.

In rapid response to this new consultation, an association of large publishers launched a campaign of their own to rebrand their opposition to free linking as simply an innocuous, but necessary, extension of copyright befitting the digital era. They liken it to the same rights that record labels or film producers have. The website appeared online mere hours after the consultation was announced, raising questions around who knew what, and when they knew it.

The tone being taken by the supporting organizations is decidedly a departure from the kind of communication we’ve seen in the past. “It’s not about links!” they cry. And here’s why that argument doesn’t hold water.

First: publishers’ associations have been going after hyperlinks for years. In addition to the Svensson case I mentioned earlier, there are other examples of where publishers have been industriously working to limit the ability to link or embed online. (It’s worth noting here that the CJEU also decided that embedding isn’t copyright infringement in the 2014 BestWatercase.)

There are two other key examples where we can glean the true intentions behind the publishers’ cover story that they don’t want to restrict hyperlinking. One, in which publishers brought another case before the EU’s highest courts, suggesting that browsing the Internet should be subject to copyright permissions, because caching. And another case that is currently awaiting a final decision from the CJEU, where a European publishing house, Sanoma, is hoping for the court to decide that the simple act of linking could constitute copyright infringement.

Internet freedom advocates are optimistic that the CJEU will do the right thing for all of us and follow the advice of top lawyer and Advocate General Melchior Wathelet – whose job it is to advise the courts on legal matters such as this – when he strongly suggested that simply linking remains legal.

But back to the matter at hand, you’ll forgive me if this obvious track record of publishing juggernauts and their associations interfering with the rights of Internet users doesn’t inspire confidence that in the case of ancillary copyright, we have nothing to worry about.

In fact, on the publishers’ website they host an FAQ that explains, in their terms, why they think they deserve this additional copyright privilege. In the eyes of these organizations:

If publishers are not acknowledged as rightholders in line with all other content producers, they will be left without any protection in European copyright law in their own right and will continue to be subject to complex legal cases with uncertain outcomes.

The footnote for the “complex legal cases” points to exactly the cases I referenced earlier: Svensson, BestWater, etc., where publishers actively sought rulings that would undermine our right to link. In recent weeks, however, we’ve seen a stepping away from the issue of linking and hyperlinks entirely, in favour of comparing the ‘publishers’ right’ they’re lobbying for as on par with the rights of others in ‘the copyright value chain,’ to use the wording of the Commission.

What’s worse is that a few huge publishing organizations are speaking as if they’re the lone voice on this issue, when in fact many smaller publishers have already spoken out against link tax laws, and have a lot to lose under an ancillary copyright system, which has been shown in Spain to result in less traffic heading to their websites, and less people reading their content. Not to mention that these negative effects disproportionately impact smaller publishers. Innovators are also speaking out against the link tax in fear that future services may be crippled before they even get started. 

It’s clear to anyone following this debate that the change in tone is because the publishing giants don’t think they’ll win an argument about who gets to link online, who gives permission for links, and whether or not those signposts should be taxed. By framing it in a manner that lets them tell individuals and decision-makers that it’s about media diversity and journalism, they hope to win favour.¹

The trouble is, we’re not buying it.