Publisher associations lie to S&D MEPs  03/07/2017 by Till Kreutzer

We got word that the European publisher organisations EMMA, ENPA, EPC and NME addressed all S&D MEPs last week in an email. Here they explain how and why a neighbouring/ancillary copyright for press publishers would be so fundamental, e.g. for quality journalism, to pay journalists et cet. As usual, the text is full of lies and allegations. Most of the arguments are well known and were rebutted by many commentators on many occasions (read about these and others e.g. here and here) before. Allow us, nonetheless, a brief comment.

In a nutshell the mailing alleges the following points:

1.    An ancillary copyright (ac) for press publishers is needed to sustain an individual, competitive, neutral and independent press in Europe.

2.    Search and aggregation technologies do not support and complement online journalism but substitute it. Their providers freeride on the publisher’s content since they benefit from the publications but there are no benefits vice versa.

3.    The German and Spanish versions of the ac did not fail. They rather generate income. Should they fail on the long run, deficits could be mended by a European wide implementation.

4.     The Commission’s proposal for the ac (Art. 11 DSM directive) has no downsides. Especially it would neither affect linking nor any other uses by private Internet users.

The truth is:

1.    The ac is no way to improve the situation of journalism in the digital age.

Almost all neutral experts consider an ancillary copyright for press publishers not help- but harmful. In an open letter, a broad coalition of European copyright experts concluded: “Article 11 is fundamentally misconceived, and should be removed from the Proposed Directive.” In another open letter, Great Britain’s most acknowledged copyright scholars resumed that: "The proposed right is unnecessary, undesirable, would introduce an unacceptable level of uncertainty and be unlikely to achieve anything apart from adding to the complexity and cost of operating in the copyright environment."

2.    Search and aggregation services and publishers do not compete but they support each other.

Aggregation and search services and publications complement each other. Their business models are symbiotic and even if they were not, both sides could opt out of the symbiosis at any time. But publishers do not opt out. On the contrary, they invest huge amounts of money in SEO – search engine optimisation – to be as visible in search technologies as possible. For a good reason: This visibility and the resulting clicks are the basis of the main business model for online journalism in the digital world (see here).

3.    The German and Spanish implementations of the ac generate costs, problems and collateral damages but they do not generate profits, not for publishers and certainly not for journalists.

Since it’s enactment in 2013 the German VG Media (collecting society for the ac) has generated an overall income of EUR 714.540. This was derived from a single one-time deal with a search provider that went out of marked. On the other hand up to 2015 the publishers had to spend more than 3,3 Mill. EUR for legal costs. In Spain the only revenues that were generated since the law had been passed in 2014 stem from a deal between the publisher’s organisation CEDRO and “upday” a news aggregator that is owned mainly by the German publisher group Axel Springer. In other words: The money is paid in “a left pocket, right pocket operation”, obviously to create a pseudo-precedent that is supposed to prove the alleged success of the Spanish link tax.

The failure of the national implementations results from the fundamental flaws of the approach of ancillary publisher’s rights (see the references in 1 above). These will become worse not better when such rights are introduced on a European level.

4.    The Commission’s ac will affect every single Internet user.

The Commission’s proposal does neither exempt the acts of private users nor non-commercial uses in general. It does not exempt hyperlinking either. What is not explicitly exempted is affected, one of the basic rules in copyright law. Hyperlinking is mentioned only in its recital 33 (not in the legal text), which says: “This protection does not extend to acts of hyperlinking which do not constitute communication to the public.” In other words: If hyperlinks are not considered a communication to the public then they are not affected. Fact is, however, that many acts of hyperlinking are communications to the public according to the European Court of Justice (see to the complex legal situation of hyperlinking here). The ac would make the situation much more complex and therefore threatens the right to link severely. More than 80 MEPs across groups have therefore expressed major concerns against the ac.