"Other nations should be wary of following the EU’s lead on this particular initiative."  23/11/2018 by Tom Hirche

The European Commission, Council and Parliament are still negotiating the exact wording of an ancillary copyright for press publishers that will most likely be part of the upcoming EU Directive on copyright. If you have not yet heard about this new right or only a little and if you want to learn more about it, then Pamela Samuelson, who is the Richard M. Sherman Distinguished Professor of Law at Berkeley Law School, has just written the perfect article for you.

It starts with repeating the publishers' main arguments that had somehow convinced the EU legislature to become active. For example, they claimed to have difficulties "in proving copyright ownership in articles written by freelancers when suing search engines or news aggregators." They also complained that providers of search engines and news aggregators "are making money, either from advertising or from subscriptions, by providing members of the public with free access to their news, through links and snippets, without compensating the publishers who provided that news."

The same arguments had already been brought up in Germany and Spain a couple of years ago and had led to the passing of two laws that are similar to what is now being discussed on EU level. In Samuelson's words, "these laws have met with much less success than their proponents had hoped." The article elaborates on the still pending lawsuits in Germany, the publishers' struggles to receive any license fees at all and the harsh drop in traffic to Spanish news sites. Considering this, one could also say that these laws had failed miserably and exactly as predicted in the past.

As one example for the vast criticism, Samuelson quotes extracts from a profound statement to the EU Parliament that has been signed by over 200 European IP scholars. Nonetheless, there are many more arguments that in the end should leave no doubt that an ancillary copyright for press publishers is not just the wrong tool to reach the desired goal but it is outright dangerous to freedom of information.

But despite this criticism, the EU legislature is currently working out the final wording of the new right. The article presents the current state of internal discussions and what amendments have been proposed by the EU Parliament like "an exception for individual users to make 'legitimate private and noncommercial uses' of press content." When presenting certain provisions that might be in the final text, Samuelson rightfully highlights the vagueness and uncertainty they would spread.

Towards the end, she points out the "irony in the EU’s prospective adoption of a Directive aimed at promoting a 'digital single market', given that no one licensing entity exists from which technology firms can get an EU-wide license." Although this is indeed true, it could be easily fixed in the future. But what is much more relevant is another point Samuelson makes: "The new press publisher right would seem to impose significant transaction costs as well as licensing fees on individual bloggers, innovative startups, and small enterprises who may want to link to journalistic content from European sites." She is right. It is them as well as the smaller publishers who will have to fight for their economic survival. There is no logical basis as to how this is supposed to save (quality) journalism.

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