Leaked Impact Assessment on the copyright reform recommends an ancillary copyright on steroids!  25/08/2016 by Till Kreutzer

Yesterday, Statewatch leaked a draft version of the Impact Assessment (IA) report for the upcoming copyright reform. Concerning the area of publisher’s rights it leaves a devastating impression. The authors of the IA suggest introducing a new ancillary/neighbouring right for news publishers with a broad scope. And they make it sound like this would be an obvious and particularly good choice.


Methodology: Ignoring facts and criticism and cherry-pick pro arguments by the publishers

Informed readers will notice very quickly that the IA sounds in most parts like it was copied from lobbying papers of the publisher’s associations. The broad and highly elaborated expert’s criticism in the German and Spanish debate is totally ignored. Same is obviously true for potentially thousands of critical statements that were filed at the Commission’s own “public consultation”. 

The main flaw of the IA is the completely wrong general assumption that such a new right would foster the production and dissemination of news and other informational content. The authors fancy that such a right would strengthen the publishing industry and generate revenues for it, which in turn would be positive for all stakeholders involved and the public interest in general.

The ultimate ignorance is perfectly demonstrated by this sentence (p. 155):

"By improving the sustainability of the news publishing sector, this option would have a very positive impact in the number and quality of news publications. European society would benefit from media pluralism and enhanced participation in the democratic debate."

We all know that any evidence that can be derived from the German and Spanish experience shows quite the opposite. But in total ignorance of these facts, the authors of the IA derive one flawed assessment after another from this starting point.

Preferred option: Ancillary copyright on steroids!

The IA's preferred solution is to grant a new right that is much broader than the German or Spanish ancillary copyrights (ac). Its scope shall not be restricted to the making available right (like in Germany) and it is not supposed to be a mere levy (like in Spain). Its scope shall not be restricted to the use by news aggregators and search engines (like in Germany and Spain). So, mainly every Internet user would be affected. However, the proposal is explicitly and implicitly directed mainly at search and aggregation services (see the explanation of option 2 on p. 151) and we all know, what that means. To achieve this goal the new right would have to cover snippets (smallest excerpts) because this is the only part of press publications that such services use. Hence: The preferred option is a version of the "ac on steroids" and the "link tax" that we and so many others warned about from day one.

Direct attack on the freedom to link

That the new right “would not change the legal status of hyperlinks in EU law” (see p. 147) is nothing but a lip service. Even if turned out that setting a mere hyperlink without description is not covered, any kind of described link (i.e. useful link) that includes a small excerpt of the linked source would be made subject to a license. This would mean the end of the Internet, as we know it.

Now listen: Not legal uncertainty but legal certainty is the effect

The manner how the IA ignores all the critical concerns uttered by digital human rights advocates, copyright and economic scholars, consumer organisations, journalists associations and unions is simply astonishing. Counter-arguments and negative evidence are in no way considered or analysed and hardly mentioned at all.

One beautiful example is the mainly undisputed fact that the scope and the subject matter of such a new right can hardly be defined and that severe legal uncertainty cannot be avoided. Quite the contrary: According to the IA a new publishing right will improve legal certainty; again to the benefit of all parties involved. 

Bottom line

Without any evidence or even plausibility the IA suggests that a new exclusive right would ease or even turn back the disruptive effects of the Internet on the press publishers' business models. That notion is - at best - naive: A new right cannot save an out-dated business model. A new right will not compensate for a disruptive effect. Quite the contrary: As we have seen it won't bring any benefits, neither for the publishers or the journalists nor for the public interest and certainly not for innovative online business models.

A new right will rather confuse all parties involved. It will impede the flow of information and online communication. It will make content disappear from aggregation services and search engines. It will have massive chilling effects on the innovation in the news and the search and aggregation sector alike. And it will make ISPs and publishing outlets disappear as a result of its destructive effects as we have seen it in Spain and Germany.

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