Voss's changes can not cure the rotten root  17/05/2018 by Tom Hirche

The rapporteur of the Legal Affairs Committee (JURI) of the European Parliament, MEP Axel Voss (EPP, Germany) has updated his draft compromise amendment for Article 11, the ancillary copyright for press publishers, pushing for a vote next month. Although the proposed text is now less extreme compared to the first version from seven weeks ago, it fails to tackle the real problem.

Small changes

A few weeks ago, several open letters all addressing Article 11 and warning of its consequences were published (see here, here and here). It can be seen as a success by all critics that Axel Voss apparently responded by making a few modifications to his initial draft compromise amendment. His second version (docx) was shortly followed by a third version (docx).

Voss now proposes to reduce the protection term from 20 years to 5 years. Also, the link between "fake news" and the need for an ancillary copyright for press publishers was deleted from recital 31 as well as the notion that the press publishers are given an inalienable right; instead it was added that they "may obtain fair and proportionate remuneration". Furthermore, it is now clarified that the new right shall not extend to hyperlinks in general and the new right shall not be applied retroactively.

Some of the changes only appear to be good at first glance. A 5 year protection term is still too long considering that the value of a press article drops heavily just hours after its publication. It also remains unclear if the exception for hyperlinks applies to the display of snippets to the linked article – probably not due to a new sentence that was added and according to which the "listing in a search engine should not be considered as fair and proportionate remuneration", meaning that press publishers are still supposed to get money for this act of use. A requirement for a certain length or originality of the snippet is still missing.

The most significant change is that press publishers shall only be able to demand a remuneration "for the digital use of their press publications by information society service providers." This considerably limits the scope of the new right by excluding private individuals and libraries for example. However, the scope is still enormously wide. Although the proposal contains no definition of this term, it is obvious that it applies for any kind of ISP. Without further carve-outs, Wikipedia would be affected as well as any other non-profit host provider or platform. Hence, although the proposal reminds more and more of the German ancillary copyright for press publishers Voss's proposals are still far broader. 

Core problem remains

However, all these changes cannot cover up the fact that the introduction of an ancillary copyright for press publishers is still and will always be a terrible idea – no matter what changes will be made in the future. Its root is rotten which has already been demonstrated in Germany and Spain. Such a right will not help the publishers with their problems but will harm them, innovative internet service providers as well as the freedom of information. Voss still completely ignores the option to let go of the ancillary copyright in total and to give the press publishers a legal presumption instead that would help them fight (online) copyright infringements easier.

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