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EU Commission thinks about attacking the link directly

Am 9. November 2015 - 15:49 Uhr von Tom Hirche

The Blog IPKat leaked a draft communication on copyright reform from the European Commission "towards a modern, more European copyright framework". Alongside some positive approaches on how to reform the European copyright law, it contains the threat of changing the web as we know it today by directly attacking the hyperlink.

It the Svensson case, the European Court of Justice ruled that providing a link to publicly available content does not constitute a copyright infringement.

It the draft on hand, the Commission shows some concern "about whether the current EU copyright rules make sure that the value generated by some of the new forms of online content distribution is fairly shared, especially where right holders cannot set licensing terms and negotiate on a fair basis with potential users. [...] Currently, these discussions centre on certain online platforms and aggregation services."

The Commission then raises the question on the necessity to change "the definition of the rights of communication to the public and of making available." That is because "these rights govern the use of copyright-protected content in digital transmissions. Their definition therefore determines what constitutes an act on the internet over which creators and the creative industries can claim rights and can negotiate licences and remuneration." There were an uncertainty about which online acts are considered 'communication to the public' and under what conditions. Therefore, "the Commission will examine whether action is needed on the definition of the rights of 'communication to the public' and of 'making available'."

The worrying part is that the Commission considers the German ancillary copyright for press publishers and the Spanish "tax on links" as an attempt to solve this problem:

For news aggregators, in particular, solutions have been attempted in certain Member States, but they carry the risk of more fragmentation in the digital single market.

These laws and their consequences are not criticized in any way. Instead, the Commission only bemoans a fragmentation of the European law.

MEP Julia Reda (Greens/EFA) concludes:

[Ancillary copyright laws are] rather an attempt to cross-finance struggling publishing houses by asking thriving internet companies such as google to pay up for linking to publicly available articles – to give price tags to exactly the same act of linking that has been clearly pronounced non-infringing by the European Court of Justice.

The Commission seems to want to reach the same by defining exclusive rights further, so the ‘clarity’ it seeks can only mean: sheer linking to content protected by copyright shall be seen as providing access to them, and require therefore explicit permission. This plan is a departure from the basic principle behind the Svensson ruling, which permitted free linking on the Internet, without the need for active examination of whom the linked material belongs to.

The draft shows that the EU Commission is driven by the idea that search engines and news services need to pay publishers for promoting their content. This idea is not only absurd but dangerous to a free internet - a place where knowledge and information is spread and not censored.

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