Draft copyright directive is out and a slap in the face of the Internet!  14/09/2016 by Till Kreutzer

Finally it is out: The draft for the new Digital Single Market Directive (DSM directive). The result is even worse than we expected it from the recently leaked preliminary draft document. Whereas the wish list of the press publishers gets ultimately fulfilled in the slightly changed final version, the public interest falls even more behind.

There it is: The ancillary copyright on steroids

The final draft version of the ancillary copyright on steroids is even broader than in the preliminary draft. It concerns every press (not only news) publications. According to Art. 2(4) any kind of general or special interest publication is covered if it is of “a journalistic nature”. This would include not only press websites but also erotic or car blogs for example. Furthermore the final version does not cover “online” uses only (like the preliminary version) but every kind of (on- and offline) digital use.

Hence, in the final draft the wish list of the European Publishers Council (EPC) is eventually fulfilled in full. They asked for:

·      “To be added to the lists of rightholders at EU level.” – was included in the preliminary draft already;

·      “For all journalistic content to be covered by the publisher’s right – discrimination between types of coverage is unjustified”  - fulfilled by the extension from “news publications” to the broader “press publications”;

·      ”For no differentiation between online and offline (piracy exists in both domains; two enforcement processes would be impractical and burdensome for SMEs in particular)” – fulfilled by the change from “online uses” to “digital uses”;

·      “For a fair term of protection in line with other neighbouring rightholders.” – was satisfied by the preliminary draft already.

No exemptions, no safeguards to #savethelink and the free Internet

Like in the preliminary draft there are no safeguards like in the German or Spanish example to prevent excessive protection. Private users or public institutions are not exempted. Neither are small parts of the publications to be used for snippeting irrespective of the user or kind of use. There is not even a clear statement that links that contain the headline of the linked source are exempted. [Update: Again: The "clarification" in recital 33 ("This protection does not extend to acts of hyperlinking which do not constitute communication to the public") is not enough to prevent that the ancillary right becomes a link tax. As I pointed out before:  In nowadays’ online communication there is no linking without snippeting! Meaning: To prevent that the ancillary copyright for publishers becomes a threat to linking and therefore the Internet itself, one has to make sure that small excerpts of the publications can be used freely, i.e. are not subject to its scope of protection!] 

In this form, this new ancillary copyright is the ultimate link tax that commissioner Guenther Oettinger and the publishers always tried to deny. We can only hope that the initiative of several MEPs from different groups is able to bring reason into the debate at last in the European Parliament.

20 years of protection for everything that was ever published

One of the most scandalous gifts for the press publishers is hidden in the rules concerning the “application in time” of the draft directive (Art. 18). In no. 2 it reads:

“The provisions of Article 11 shall also apply to press publications published before [the date mentioned in Article 21(1)].”

In other words: The new ancillary copyright does not only apply to publications that are published after the enactment of the new directive. It shall apply for any publication that was ever published. The effect would be that millions of publications that were never protected by an ancillary copyright would be covered retroactively. I cannot even imagine what this would mean for the providing of link lists that were published long before and many other regards.

Verdict

Concerning the ancillary copyright for press publishers the draft directive is a disaster of the worst kind. It is far worse than I could have ever imagined that a peace of political patronage could possibly turn out. All hopes are now on our legislative representatives in the European Parliament.

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