JURI members try to water down results of their own requested study  08/12/2017 by Tom Hirche

A couple of months ago, the European Parliament’s directorate general for internal policies of the union had commissioned a study on the proposed new right for publishers. After the results were published last October, they were finally presented to members of the Legal Affairs Committee yesterday. What should have been an informing workshop turned out to be yet another opportunity for the right's supporters to shut down arguments with their lies and to cause confusion. 

Clear Message

The study had been explicitly requested by the European Parliament's Committee on Legal Affairs (JURI). It was found that there is "nearly universal criticism" among academics from all over Europe regarding the new publishers' right. The same is true for the journalists and online news editorial leads that agreed to be interviewed for this study (see here) while others refused due to "differences of view between the online editions of the quality press and their mother publications". After taking everything into account, the study recommends to abandon the plans for publishers' right and to replace it "with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications".

Not a Balanced Representation of Views

However, some members of the JURI were obviously not satisfied with the findings of the study and the subsequent recommendation. When two authors of the study, Prof. Lionel Bently and Prof. Martin Kretschmer, presented it to the Committee, there were two other speakers who both support the publishers' right and thus completely disagreed with everything they said.

One of these other speakers was Prof. Thomas Höppner who also is a partner at an international law firm. As such, he has represented a number of media publishers and has brought to court a few cases against online platforms. Therefore, it is of no surprise that for Höppner the new right "is without alternatives and adequate to secure a free press in a digitalised world".

MEP and JURI member Axel Voss (EPP) who also happens to be the rapporteur for the Copyright Directive defended the invitation of additional speakers. "Why do we want to have a workshop if we are only going to have something in one direction?”, he said to POLITICO. Well, when having an open debate, it is the absolute right thing to invite different experts with different views. But why would you request a neutral study in the first place when after learning about its results you will try to undermine it in total and present it as wrong?

What must also be considered is that the academic landscape is not split in half when it comes to the publishers' right. The great majority is against it and many have signed open letters to the Commission in order to stop their plans. After going through some internal documents, MEP and JURI member Julia Reda (Greens/EFA) found out that it took the Parliament's administration two months to find supporters of the right. Two months! And all they could come up with are legal representatives of publishers. Placing them right next to the presenters of the study only "serves to muddy the waters", as Julia Reda puts it. This stunt aims at fooling other MEPs into thinking that this topic is highly contradictory when it actually is not.

Scientific Approach vs. Accusations, Lies and Misrepresentation of Facts

When he was given his ten minutes of speaking time, Höppner played his role perfectly. In the beginning, he accused the authors of the study of not being neutral when they conducted it because they had publicly criticised the Commission's plans before. He made it in such an offensive way that Prof. Kretschmer later felt the need to defend himself and his colleagues saying that they completely stuck to scientific standards and that there is a huge difference between acting on behalf of a client and scientific work for the European Parliament.

But Höppner did not stop there. Quotes like "As much as thousand bee stings can kill a grown man, thousand snippets can copy a whole press article" miss as much the point as they are meant to confuse the audience. There are no services that recreate an article by taking large numbers of snippets and thus circumvent copyright protection. Höppner definitely is aware of this but he has created an image of the aggregators and platforms as not only being threatening but also mortal: mission accomplished.

Later on, he referred to a ruling of the German Federal Court of Justice in which it was said that the ancillary copyright of an audio producer covers even the smallest part of the protected matter. It became obvious that Höppner wants to apply this legal understanding to the publishers' right. This would have tremendous consequences and lead to a monopolization of words because that is what the new right will protect. As Julia Reda pointed out towards the end, even the text of a hyperlink would be affected which would make linking to news article impossible.

Truly surprising was Höppner's statement that the publishers' right is not about getting license fees but "first and foremost to prevent exploiting businesses". The question remains why publishers do not take any technical steps to prevent this exploitation but rather tune their articles so that they are found easily by search engines and get listed very high.

Write Your MEP!

Once again, this workshop has proven what a strong lobby the big publishers have and that there are willing to do everything for their own right. The upcoming vote on the JURI Committee will show how many members have really fallen for the lies. 

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