Room for interpretations could lead to Spanish conditions  31/10/2018 by Tom Hirche

Representatives of the European Commission, the Council and the Parliament are currently negotiating a compromise solution for the new Copyright Directive. Unfortunately, it can be assumed to be certain that this Directive will contain an ancillary copyright for press publishers. However, the exact wording is not final yet. The devil is in the detail as the Parliament's proposal shows.

Parliament places special emphasis on remuneration

While an EU regulation applies uniformly in all member states at the time of its entry into force, EU directives must be transposed into national law by each member state within a certain period of time. If the Directive is not sufficiently concrete at one point and therefore offers too much room for interpretations, it can easily lead to different transposition by the Member States. The example of the European Parliament's proposal for a directive on ancillary copyright for press publishers shows just how easily this can happen and how dramatic the consequences can be.

According to the proposal, recital 32 shall read: "Such protection [of press publishers] should be effectively guaranteed through the introduction, in Union law, of rights related to copyright for the reproduction and making available to the public of press publications in respect of digital uses in order to obtain fair and proportionate remuneration for such uses. [...] In addition, the listing in a search engine should not be considered as fair and proportionate remuneration." (emphasis added)

Additionally, Article 11 shall read: "Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers." (emphasis added)

Dangerous room for interpretations

The Parliament's proposal makes it clear that press publishers should receive financial compensation from search engine providers in particular when they display links to publishers' websites. Member States, however, could now come up with the idea that this goal could be achieved most effectively if publishers could not waive their right to remuneration. Only the amount of the remuneration claim would then still be negotiable, but not its assertion. To justify their interpretation, the Member States could refer to the German ancillary copyright which does not provide for an obligation to pay remuneration and has failed (albeit for a variety of reasons). So far, almost all publishers in Germany have granted Google a free licence for use.

Now this interpretation result is by no means mandatory. But it is also far from being completely absurd. The mere fact that different interpretations are possible poses a great danger that must not be underestimated or minimized.

Dramatic consequences

What a remuneration obligation leads to could and still can be observed in Spain. The Spanish ancillary copyright for press publishers provides for exactly such an obligation since its introduction in 2014. As a reaction to this, Google News was closed which has severely affected small publishers in particular. As they are less known, their websites are less often visited deliberately. That's why they are much more dependent on redirects by search engines, social media & Co. than the big news portals.

In addition, it is not clear at what word or character length the protection by the ancillary copyright law applies. The European Council proposes an exception for "insubstantial parts of a press publication". However, the decision as to what is to be understood by this shall be left to the Member States. The German copyright law already provides for an exception for "individual words or smallest text excerpts". What does that mean in practice? Nobody can say for sure. This has been the subject of controversy for years with no result.

The same legal uncertainty paired with a payment obligation would probably be the end for online services that prepare press products in a user-friendly way. Small providers would not be able to take this legal and financial risk and would be pushed out of the European market (see the open letter by the Coalition of Innovation Media Publishers). This has already happened in Spain (and even in Germany). Start-ups would no longer occur because of the high investment costs. And whether Google or Facebook would pay can be strongly doubted due to the lack of willingness so far.

In the end, only the big publishers will benefit while small publishers, innovative start-ups and ultimately the citizens will lose out.

And by the way, a payment obligation is absolutely incompatible with open licenses such as Creative Commons.

Urgent need for change

For this reason, such ambiguities must not be allowed to appear in the final text. It must be made clear that publishers are free to waive their right to remuneration. It is therefore essential to include a corresponding addition.
 

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