EU institutions agree on final text of Article 11  14/02/2019 by Tom Hirche

Last night, the trilogue negotiations on the proposed EU copyright reform were concluded. One result of these negotiations is an ancillary copyright for press publishers which is very similar to the German regulation but will cause even greater damage. This can still be prevented!

A spectacular failure in Germany

In Germany, press publishers already have an ancillary copyright since 2013. The publishers can demand money from the providers of search engines and news aggregators if they use excerpts from press releases.

In practice, the desired money ran - as predicted - has failed to materialise. Many providers of the services affected simply cannot afford to pay for the display of excerpts. They have therefore either cut the display considerably or have discontinued the service completely.

Instead of earning money, publishers have already spent millions on expensive legal proceedings. This is because another problem is the immense legal uncertainty that the regulation creates. According to it, "single words and smallest text excerpts" shall be used free of charge. However, to this day nobody can say what this means.

Policy for a few large publishers

The overwhelming majority of copyright scholars have spoken out against an ancillary copyright for press publishers. Industry associations and journalists' unions have done the same. Numerous studies have come to the conclusion that such an ancillary copyright is harmful. And by no means all publishers want this right.

It is therefore absolutely incomprehensible that the negotiators have now agreed on a regulation that is even more terrible than the German one.

What do they have agreed on?

Article 11 is intended to give all press publishers in the EU the opportunity to charge money for the (partial) advertising of their publications, just like in Germany. However, the circle of those affected is not limited to providers of search engines and news aggregators. Rather, all operators of websites, apps, etc. are covered.

Only the private or non-commercial use of press publications by individual users shall be excluded. Such a restriction is indeed necessary. However, some urgent questions arise, for example: Do I act privately if I publish an excerpt of a press release freely accessible on my blog or on my profile of a social media platform? What happens if advertising is displayed on the page or if there is a charge for access to the platform? Do companies or several persons also fall under the term "individual user"?

The current directive text does not provide any clear answers. This legal uncertainty will have a lasting impact on the way information is shared and how we communicate with each other. Due to fear of legal consequences and a demand for payment, the discussion of press releases will decrease. The same applies to the use of snippets, the short extracts that help us assess the content of a linked article on a daily basis.

This will not be prevented by the exception for "individual words or very short extracts of a press publication". As with the regulation in Germany, there is no form of clarification here either. Can headings be reproduced in full without requiring a licence? May I post the link if it already contains the complete heading? How long can snippets be?

In the end, cost-intensive legal proceedings will be conducted throughout the EU in order to know at some point in the distant future what is permitted without a licence. Once this is established, all online services will be adjusted so that they are not subject to payment. Until then, for safety's sake, they will be cut back rather too much than too little.

Who is to benefit from this remains open. Poorer visibility of press articles on the Internet inevitably leads to fewer clicks for publishers and thus to lower revenues. A disservice to the press landscape.

It's not too late!

As a next step, the Member States in the European Council and the Members of the European Parliament must approve the final text of the directive. Only then will the directive come into force.

The best way to prevent this from happening or to delete Article 11 (and Article 13) is the final vote in the plenary of the European Parliament in a few weeks. Now that a majority has already formed here against the copyright reform, its outcome is completely open. All help is needed here!

At www.saveyourinternet.eu/act/ you can find out about the voting behaviour of your MEPs and contact them directly. Only a few weeks after the vote on the directive the election to the European Parliament will take place at which most MEPs want to be re-elected. Make it clear to them how important a free Internet and undisturbed exchange of information is to you.

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