Article 11: Negotiations did not bring any improvement so far  18/01/2019 by Till Kreutzer

Originally, the European Commission, the European Parliament and the European Council wanted to finalise the text of the planned Copyright Directive by the end of 2018. However, this goal was clearly missed so that negotiations were resumed last week.

Concerning the ancillary copyright for press publishers, the negotiations have already progressed quite far. All three institutions have agreed that Article 11 of the proposed directive should provide for such a right. If the reform is actually adopted and there are no more surprises, EU press publishers will have their own ancillary copyright on their press publications in the near future. This right would then exist alongside the copyrights of journalists and the intellectual property rights of other creatives who have contributed to the press publication.

The very idea that such a right could actually come is shocking. This new right is intended to solve the (financial) problems of publishers, but will eventually aggravate them and force smaller publishers out of the market. Providers of online services related to press products will limit the functionality of their services or shut them down entirely. The availability of information will decrease and the attractiveness of the European Union as a location for innovation and investment will continue to decline.

But despite all warnings, the trilogue negotiations are continuing at full speed. A completion within the next days or weeks is not unlikely. In the following we have summarised the points on which a final agreement has already been reached and what is still to be discussed.

The current status

Final: An exception for "private or non-commercial uses for press publications carried out by individual users" is added to limit the scope of Article 11.

If you want to copy a complete press article to your website, you already need a suitable licence from the copyright holder under current law. As authors mostly have no other choice but to transfer all of their rights to the press publishers (total buyout), it is already the latter who enforce those rights.

With Article 11 as it stands today, press publishers will be granted an additional right by law, an ancillary copyright that will cover every headline, every paragraph, every sub-clause of a press publication. Under this new right, even the sharing of a tiny excerpt of an article on the Internet will require a license.

Given this wide scope of protection, an exception for purely private and non-commercial uses is mandatory. But it is of little use if it is not clear in what cases a use is considered to be private or non-commercial. The current text of the directive is silent on this point. Is it private when I post an excerpt from a press publication on my publicly available blog or public profile on a social media platform? What if I do this within a closed group? Am I not yet acting commercially when I share the excerpt on a page or platform that displays advertisements or for which a royalty must be paid in order gain access? And what if I post the excerpt on my work-related profile page but there is no relation between the excerpt and my work?

These questions cannot be answered unequivocally. This will cause immense legal uncertainty which will prevent many people from exchanging information about press publications online at all. The financial risk of receiving a written warning and eventually having to pay a licence fee just for reproducing a sentence from an article is something most people will not want to take. A disaster for freedom of information.

 

Final: Article 11 contains another exception according to which the ancillary copyright for press publishers shall not extend to hyperlinks.

Again, it is completely unclear what kind of uses this exception will ultimately cover. Hyperlinks can take many different forms. What if I only share the "naked" link, but the link itself contains the complete title of the linked article (e.g. http://www.bbc.com/future/story/20190116-the-invisible-warning-signs-tha...)? In this case I would also have published a protected excerpt of the press publication online. Does the exception permit this use?

This situation is even worse when it comes to snippets. A snippet accompanies a link and contains a short excerpt from the linked page to give the user a first impression of its content. We encounter such snippets all the time in our everyday online life as there are hardly any links without snippets by now. Especially in social networks, almost every hyperlink is accompanied by a snippet.

If you link to a press publication, the snippet usually contains the headline and the first few words of the article. But that would be a use that is subject to licensing under Article 11. For this reason, an exception for snippets is absolutely necessary, so that the way we communicate online and share information with each other today is preserved.

But what does Article 11 actually mean when it says that hyperlinks should not be covered? Are snippets included? Nobody can say for sure. Without a clear exception, the use of snippets will drop sharply. The providers of social media platforms will ensure this themselves by deactivating the automatic insertion of a snippet in order to avoid their own liability under Article 13 of the Directive. Other service providers will reduce the display of snippets as it has already happened in Germany following the introduction of a national ancillary copyright for press publishers. The costs for displaying snippets are simply too high for most of them. Also, Google is currently testing what a directive-compliant result list would look like. Spoiler alert: it has no snippets.

 

Final: Journalists shall be able to use their rights to their press publications undisturbed by the new ancillary copyright for press publishers.

This regulation is well-meant but in the end it is a sham. It is common practice for journalists to conclude so-called total buyout agreements with press publishers. Under these agreements, journalists transfer all usage rights (including those for secondary exploitation) exclusively to the publisher for an unlimited period of time and without any geographical restrictions. This means that there is no longer any possibility for the journalists to continue using their rights. Thus, the agreed regulation runs empty.

In addition, press publishers are not deterred from asserting their ancillary copyright against the interests of journalists and they will do so. Journalists want to inform the people. This is achieved best when their texts are read by as many people as possible and then get shared (e.g. via a link). However, the ancillary copyright will restrict the visibility of journalistic content and thus its impact drastically. The journalists will be exposed to this situation helplessly as they are neither in a good negotiating position nor do they have the means to influence the assertion of the ancillary copyright by the press publishers.

 

Final: A large number of the copyright exceptions will also be applicable to the new publishers' right.

This is another attempt to create the impression that the new right for press publishers only applies within narrow limits and that article 11 is a fair provision. But that is not the case. The fewest exceptions to which reference is made are relevant at all. What does the sharing of a short extract of a press publication on Facebook have to do with ensuring the proper conduct of court proceedings or the repair of devices?

Only the right to quote seems helpful at first glance because it could permit the use of extracts from a press publication online. However, a number of strict conditions would have to be met. The mere setting of quotation marks is by far not enough. Rather, quotes may only be used as an accessory and require a discussion of their contents. The mere sharing of a link including a snippet obviously does not fit into this category. No one will make the necessary effort just to post a snippet to a linked press article or to post an interesting sentence from it.

Providers of search engines and news aggregators will not benefit from the right to quote either. In their results lists there is also no discussion of the content of the snippet. Thus, the licensing obligation for snippets will remain despite this regulation.

 

To be discussed: The uses of insubstantial parts of a press publication shall be excluded from the scope of Article 11.

In Germany, the national ancillary copyright for press publishers from 2013 already provides for an exception for "individual words and smallest text extracts". For over five years now, it is being discussed and even disputed in court what this means in specific terms. An end of this discussion is not in sight. Several million euros in litigation costs have piled up on the part of only a few German press publishers, and service providers have decided not to display any snippets at all instead of possibly displaying an excerpt that is too long.

The same will happen EU-wide if an equally vague exception is chosen to limit the scope of the ancillary copyright regarding very short extracts or snippets.

But if the ancillary copyright actually comes into force, an exception for such cases is absolutely necessary. However, the solutions discussed so far are all insufficient. The events in Germany have shown what vague specifications will cause. According to another proposal, it should be determined whether the excerpt used reflects the author's intellectual and creative work. This is not a satisfactory solution either because each individual extract would have to be checked separately and this process could not be automated by using algorithms.

A legally secure solution must be found. One that is easy to use in order to mitigate the collateral damage caused by an ancillary copyright for press publishers. The simplest solution would be to let protection begin only when a specific number of consecutive words or signs have been taken from the press publication. With this solution it would be easy to determine if an extract is subject to licensing or not.

It remains incomprehensible why there is no serious discussion about this solution. Instead, it is being considered to leave the decision to the member states. In the worst case, there will be 28 different regimes (as of today). As a result, access to and use of press publications will vary across the EU. In countries with an unclear regulation, many services are likely to be shut down. The closure of Google News in Spain shows just how realistic this scenario is.

 

To be discussed: The authors of the contents of a press publication could receive an appropriate share of the revenues press publishers receive for the use of their press publications.

The level of participation is still completely open. In any event, the share would depend on the revenues that press publishers generate with their ancillary copyright. Without income there will thus be no participation. In German law such a participation rule already exists but so far the authors have not received a single cent. This is not only due to the fact that hardly any money was collected at all but mainly because a multiple of the income was accumulated as litigation costs.

Even if these legal proceedings are eventually concluded, the publishers will endeavour to first compensate their millions in expenses. Where this money is supposed to come from remains completely unclear. Many providers cannot afford the licence fees demanded by the press publishers and therefore had to close their services. Others have restricted the functionality of their services in order to avoid paying license fees. Therefore, a participation of the authors is not to be expected in the next years—in Germany probably not in the next decades.

In addition, according to Article 12 of the planned copyright reform, publishers shall themselves participate in the authors' other income. Although in the public presentation it is the authors who are supposed to profit from the reform, in the end it is them who will have less money in their pockets than before.

 

To be discussed: The proposals for term of protection range from one year to 20 years.

The current discussion about the term of protection is a sham battle that distracts from the actual problems. It is merely a matter of creating a negotiating mass.

A term of protection serves to give the right holder time to at least balance out his investments. Press publications are particularly short-lived due to their common reference to current events. Their information value, and consequently their economic value, is high at the time of publication but declines rapidly. The exploitation is thus of particular importance right after the publication. Yesterday's news do not attract readers and therefore do not generate income. Consequently, there is no longer any need for protection on the part of press publishers.

For this reason, it does not matter whether the term of protection is one year, 20 years or 70 years. Even a protection period of several days will massively impair the availability of information.

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