European Parliament's study suggests abandonment of link tax  13/10/2017 by Tom Hirche

Now that is some good news! An independent study reviewing the publisher's right a.k.a. link tax that had been requested by the European Parliament's Committee on Legal Affairs (JURI) has just been published this week. It confirms once and for all what we and others were saying for quite some time now: the link tax will be harmful and should therefore be abandoned right away.

The authors of the study are Professor Lionel Bently, Professor Martin Kretschmer, Tobias Dudenbostel, María del Carmen Calatrava Moreno and Alfred Radauer. For their review, these experts focused on the academic criticism that has already been brought up in previous reports, especially in relation to the two similar laws in Germany and Spain. Furthermore, they conducted interviews with journalists and editorial leads of different online news publishers from these countries. However, some publishers are said to have refused to be interviewed due to "differences of view between the online editions of the quality press and their mother publications" (p. 29) in at least some cases.

Interviewees strongly against link tax

This strongly reminds us of Günther Oettinger's call on publishers to put their online editors to silence. That is why MEP Julia Reda (Greens/EFA) considers the refusal a possible "evidence of intense internal pressure within certain publishing houses to avoid engaging critically with this issue". She also feels that "if all online editors had felt at liberty to speak, the results of the study could have ended up even more damning than they already did". We can only agree because the ones that answered to the questions basically ripped apart the idea of a publisher's right.

The Director of Communication from a major Spanish publisher for example said: "The Spanish law on intellectual property for press publishers has not changed the situation for journalists at all. In my opinion, the challenges that digital press is facing should be regulated by the market itself rather than by legislators. [...] Protective laws for press publishers might not be necessary." (p. 33)

An editor-in-chief states: "Paying for links is as absurd as paying for citations in the academic world would be. Citation is a well-established and common practice since centuries both in journalism and in academia. Of course, citations need to properly reference the author and the work. In online journalism, citations are not mere references to additional or more complete information, they also bring benefits for the cited organization or person. Therefore, it is ridiculous to ask for extra money for the person who cites." (p. 34)

There are more such quotes that go along similar lines. The national laws were "a mistake" (p. 32), "a monopoly-maintaining-device for Google" (p. 36) and all in all "non-sensical" (p. 34).

Appraisal of the received answers

The authors have doubts whether the proposed link tax will reach the goal of securing a sustainable press: "however successful, a right targeted at aggregators is not likely to achieve much. It is certainly not necessary for publishing entities to enter deals to supply news to social media platforms". (p. 37) They also confirm that a definition of press publishers that includes academic journals "could have serious negative implications for open access policies". (p. 38) Moreover, they see no need for extending the publisher's right to cover print as well as digital uses and "would caution strongly against any such extension". (p. 39)

The study also tackles the often-heard statement that hyperlinking will in no way be effected by the link tax––and busts it as a lie. It is shown that there already are cases in which the link will not be safe and that their nummber could become larger due to the fast-moving jurisprudence of the Court of Justice of the European Union (CJEU) in this context. So far, "none of the Committees have found the ideal solution to the conundrum". (p. 41)

There is only one solution

All of their research has led the authors to the conclusion "that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications". (p. 8) This is what former MEP and JURI-rapporteur Therese Comodini Cachia (EPP) had already proposed but what was then thrown out by her successor MEP Axel Voss (EPP). We (still) agree that a presumption of representation will be the best solution for helping the publishers fight (alleged) online piracy while not harming the freedom of information.

MEPs need to hear of the this!

The JURI happens to be in charge of the Copyright Directive in the European Parliament. For this very reason, it is of highest importance that every member of the Committee learns of the study's findings before they will vote on their final opinion. However, according to the current schedule the study will most likely be presented right after the vote, as Julia Reda points out on her blog. More shockingly, she also writes that "the secretariat was unwilling to confirm whether this study – which was requested by the commitee in order to inform its work – will be presented to MEPs at all!" We strongly hope that she and her political group will prevent another example of intentionally ignored evidence.

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