Introduction of Ancillary Copyright for Press Publishers now a "Question of Life and Death"  31/08/2018 by Tom Hirche

Before the summer break in Brussels and Strasburg had officially ended, members of the European Parliament got hit by the latest lobbying campaign by press agencies and publishers. With blatant lies and twisted truths they once again called on MEPs to support the widely discussed ancillary copyright for press publishers. Supporting arguments based on actual facts are absent just like they have been in the past.

Last Tuesday, Sammy Ketz, bureau chief in Baghdad for Agence France Press (AFP), wrote the European Parliament an open letter that was subsequently published in several European news outlets (e.g. The Guardian (with a slightly different version) or Der Tagesspiegel). With a lot of pathos and dramatic reports from his work as a journalist in war zones, he turned the discussions about the introduction of an ancillary copyright for press publishers (the link tax) into a "question of life and death".

"They simply have to pay their dues."

The central statement of the letter can be summarized as follows: while press publishers spare no expenses "to deliver a reliable, complete, trusted and diverse news service", internet platforms help themselves to these reports "without paying a cent" but which they will be supposed to do in the future thanks to the link tax. This is how Ketz describes the current situation:

It is as if a stranger came along and shamelessly snatched the fruit of your labour. It is morally and democratically unjustifiable.

Apart from fully ignoring the fact that publishers also benefit from the online platforms' services, such statements are dangerously misleading. They imply that entire articles are copied and pasted en bloc to other websites like Facebook or Google News. But this is not the case especially because this would already be illegal under current copyright regime. We are only talking about the display of short snippets to linked articles. This action does not constitute a copyright infringement and can easily be prevented by publishers with simple technical measures. 

Without a rights violation, Ketz completely misses the point when he writes that publishers are now "asking for their rights to be respected so they can carry on reporting the news". Does he have any idea what he is talking about? According to the office of MEP Julia Reda, Ketz "didn't seem to know much about the details of [the link tax] and how this new neighboring right is supposed to work" when they talked to him ahead of the release of the open letter. And to make matters worse, Ketz has been briefed by the AFP which has already lobbied for the new publishers' right in the past. This looks pretty much like Ketz had been carefully chosen as AFP's representative in order to reach MEPs solely on an emotional level and so that it can be reported about his dramatic letter subsequently. This is far from what a "trusted" news service should look like.

Support from Germany

The open letter has been co-signed by over 100 so-called "leading journalists" from 27 European countries. One of them – without disclosing it – is Caroline Fetscher who leaps to Ketz's defence in her article for the German newspaper Der Tagesspiegel. Coincidentally, she also does not seem to have understood what the link tax is all about. The online video platform YouTube gets labelled as a news aggregator and ancillary copyrights are described as "guidelines to copyright". Whatever that is.

She also wrongfully claims that Google had threatened German publishers to delist them from the search index. What Google had actually done was announcing that it will stop displaying the snippets to articles of certain publisher websites. This was only aimed at those publishers that had already sued Google for licence fees arising from the already existing German link tax. Andreas Mundt, president of the German Federal Cartel Office, had declared this move legal precisely because a total delisting was never on the table and Google just intended to do what publishers demanded: stopping to systematically suck editorial departments dry, as Fetscher calls it.

The revolution consumes its children

Fetscher ends her article with a reference to the high profits Google and Facebook made last year. This reveals what the call for a new right is actually all about: Somehow getting a piece of this cake. It is sadly ironic that on the (alleged) way to their goal publishers leave behind what they insist the platforms' money is needed for: high quality journalism. All articles that fight for the new publishers' right consist of a plethora of skewed and uninformed assertions while they lack profound arguments. Maybe there are none?

We are not against the link tax because we want to damage journalism and undermine the freedom of press. It is quite the opposite! We too want a strong, independent press that informs the people and exposes irregularities. The greed for the profits of US companies has blinded the publishers' eyes. They don't (want) to see the problems that are inherent in an ancillary copyright for press publishers. It is not only the private users that will have to deal with the threatening consequences but also innovative start-ups and especially smaller publishers as they heavily rely on being found via platforms and news aggregators. But this is exactly what the link tax will inevitably prevent. The hoped-for cash flow will never happen anyway.

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