Member States agree on implementation of link tax  29/05/2018 by Tom Hirche

After months of discussions, the Committee of Permanent Representatives of the Council (COREPER) has agreed its common position on the text for the upcoming Directive on Copyright in the Digital Single Market. This position will serve as a negotiating mandate for the Presidency of the Council of the European Union. Despite all warnings, this mandate also allows for the introduction of an ancillary copyright for press publishers aka the link tax.

Compared to the proposal of the European Commission, the Member States have slightly mitigated the text making it very similar to the German regulation.

The link tax shall only be available to press publishers established in the EU "for the online use of their press publications by information society service providers." This limitation corresponds with JURI rapporteur MEP Axel Voss's so far unofficial proposal and suffers from the same problem: without further carve-outs every ISP will be affected, even non-profit platforms like Wikipedia.

Although the majority of the Member States was willing to introduce the link tax, they have been deeply divided on how to further limit it. They seem to have come to the conclusion that they will not be able to settle their dispute in the near future which would explain the agreed upon compromise:

The [press publisher's right] shall not apply in respect of uses of insubstantial parts of a press publication. Member States shall be free to determine the insubstantial nature of parts of press publications taking into account whether these parts are the expression of the intellectual creation of their authors, or whether these parts are individual words or very short excerpts, or both criteria.

When introducing this right on a national level a few years ago, the German government had opted for the second criterion. Due to a lack of clarification, it is highly unclear what falls under this exception up to this day. Taking into account the originality of a part of a press publication on the other side might not help the publishers at all because they would still have to prove this point in court in each and every case. A legal presumption of representation would have been the better solution.

Leaving the decision of what insubstantial parts are to each Member State will most certainly lead to many different and thus unharmonised national implementations. The consequence will be that depending on the location within the EU, users' access to online press publications will be different. Service providers might even decide to not offer their service anymore in certain member states in order to avoid paying fees (like it has been done with Google News in Spain).

In any case, the freedom of information and the internet itself is under threat. The proposed reduction of the protection term from 20 years to 1 year as well as the deletion of any retroactive effect will not change this fact. The whole idea of giving publishers the legal right to demand a fee when others bring them readers (= money) by only linking to their publications is absurd and lacks the necessary justification.

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