Kategorie European Commission

Room for interpretations could lead to Spanish conditions   Am 31. Oktober 2018 - 0:08 Uhr von 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.

 

The neighboring right for press publishers is a thread to Open Content and Open Access   Am 6. September 2017 - 13:37 Uhr von Till Kreutzer

Back in July, the Committee on Industry, Research and Energy (ITRE) of the EU parliament suggested a few changes to the Commission's initial proposal for a new publisher's right. One of them is to remove the explicit exception for academic and scientific publications as found in recital 33 of the draft directive. This combined with the already extensive COM proposal would result in a tremendous threat to Open Content and Open Access publishing. Weiter

Ansip only believes in surveys that confirm his view   Am 2. Juli 2017 - 18:30 Uhr von Tom Hirche

The European Commission regularly makes use of surveys to gather a wide array of opinions from various stakeholders. But when the result does not meet the preconceived view, its relevance will simply be denied, as it seems. Weiter

Snippets not only may but will be illegal   Am 16. Januar 2017 - 7:19 Uhr von Tom Hirche

Last week, the European People's Party (EPP) Group in the European Parliament held an event labelled "Hearing on Copyright". One of the speakers was Giuseppe Abbamonte, the Commission's director of media policy at the DG CONNECT, who said that we might all act illegally when we share articles, as reported by Chris Spillane from POLITICO. Weiter

How to solve the only specific problem of press publishers with copyright without an ancillary copyright   Am 23. November 2016 - 17:10 Uhr von Till Kreutzer

The only argument of the press publishers in their quest for an own ancillary right that seems reasonable to a certain degree is their call for facilitated enforcement. They bemoan that it is difficult to enforce rights against mass online piracy. If this is a factual problem it can be solved easily without even touching the matter of an ancillary copyright. Weiter

Debate in the Press Club Brussels: A tale about the lies of the publisher associations and the ignorance of the EU commission   Am 11. Oktober 2016 - 16:16 Uhr von Till Kreutzer

Yesterday, I was invited to speak at a public debate in the Press Club in Brussels. Main topic was the Commission’s proposal on the ancillary copyright. What I heard was a bunch of lies and a good measure of ignorance. Weiter

It could not be worse: Draft proposal for the copyright directive leaked   Am 31. August 2016 - 14:19 Uhr von Till Kreutzer

We have just received the draft proposal of the European Commission for a new copyright directive. It shall complement – i.e. in general not amend – other directives inter alia the InfoSoc directive from 2001. As it had to be expected from the Impact Assessment that was leaked last week, the draft reads like an answer to the wish list of the publishing industry. Here comes a first assessment. Weiter

Extending a bad idea does not make it better!   Am 15. April 2016 - 18:20 Uhr von Tom Hirche

On 24th March, the European Commission launched its public consultation on the role of publishers in the copyright value chain and on the 'panorama exception'. Looking at the wording, it provides great insight into the Commission’s plans for the upcoming copyright reform. Weiter

European publishers against European AC   Am 7. Dezember 2015 - 8:31 Uhr von Tom Hirche

Several Open Letters have reached the EU Commissioners while they conduct their public consultation on the role of online platforms. The most recent originates from a group of various European publishers who speak out against an ancillary copyright for press publishers. Weiter

Weitere Infos zu dieser News

Open Letter to EC and EP (UPDATE)   Am 25. November 2015 - 18:41 Uhr von Tom Hirche

As part of a large coalition we have co-signed two open letters addressed to the European Commission as well as the European Parliament informing them about our concerns regarding the Commission's approach on copyright affairs. Weiter