EU Council is deeply split over link tax  04/02/2018 by Tom Hirche

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Within the EU Parliament's Legal Committee (JURI), the discussions about the Commission's proposal for a new copyright directive are still dragging on. However, with MEP Axel Voss (EVP, Germany) as the Committee's rapporteur it is very likely that the terrible idea of an ancillary copyright for press publications a.k.a. the link tax will be supported. But the situation looks completely different in the EU Council where the number of varying opinions on this topic could hardly be any larger.

Last summer, the Council Presidency which was then held by Estonia had proposed two very different versions for dealing with (some) publishers' call for more legal protection online. While the first one was similar to the Commission's initial proposal but much more far-reaching and thus much more terrible, the second one basically was what we and others, especially former MEP Catherine Stihler (S&D, Malta), had suggested before as a compromise: a legal presumption that would allow for publishers to fight copyright infringements a lot easier.

But so far, the EU Member States could not get behind one of these two versions. Instead, a bunch of different ideas are under consideration right now. Fortunately, the idea of burying the link tax altogether is still on the table. Other Member States want to go for the compromise in the form of presumption solution mentioned above. And then there are quite a few Member States that principally prefer what the Commission had proposed but they want to modify it in some way or the other.

For example, the Bulgarian Council Presidency is pushing for a new "compromise". The idea is to add exceptions for short snippets and non-commercial use by individuals while reducing the protection term from 20 to one year. Wait a minute... This looks oddly familiar to the failed link tax that was introduced in Germany over 4 years ago and failed miserably!

Up to today, publishers still have not made any money from it but paid extra for legal battles with Google and competition watchdogs. Also, innovative start-ups were pushed out of the market due to a never before seen level of legal uncertainty. There is no way that implementing the same flawed law at EU level will lead to a different outcome.

If you want to stay positive, you could say that this proposal is only one out of many. There is still hope that the Member States agree on a solution that will not prevent innovation, not spread legal uncertainty and not ignore the warnings by almost any expert. MEP Julia Reda (Greens/EFA, Germany) has put together a helpful overview of the different Member States' positions towards the link tax in her blog post. This shows that it is not too late to get involved by writing your government and making everybody aware of its intentions.

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