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.

After all these years I am doing this the way publisher representatives outright lie about the real background and impacts of their policy claims still annoys me. Well, one gets used to it. What was a novelty to me however was that the representative of a legislative institution (the European Commission) is totally ignorant about their own proposals.

It started with a lullaby...

As usual, yesterday’s debate started with the reassuring melody that shall lull us into a feeling of security. Its lyrics tell us the story that the ancillary copyright (ac) proposal is harmless. What has changed since the publication of the Commission’s proposal is that the publishers do not have to intone this deceiving song themselves anymore. They can – like they did yesterday – leave it to the European Commission to tell the publisher’s story.

... before we came to the real issues.

Soon, Julia Reda and I managed to awaken the participants again by raising the issue of the involvement of the private user and the fundamental risks of putting snippeting and linking under copyright law. The reaction of the publisher representatives was the expected one: No, they would lie, that is not true, Internet users are not affected at all. My request however, to show me the passage in the draft proposal according to which end-users are exempted from the new ancillary right was left unanswered. No surprises here since there is no such passage.

All the more intriguing was the reaction of the Commission’s representative. He also outright denied any issues with the citizen’s use of the Internet. No, their uses of snippets would not fall under the scope of the ac. Of course, he couldn’t show me the respective passage in the legal text, too.

Ignorance meets lobby lies

The situation in the debate today was this: The publishers were lying outright and that’s what we are used from them. The Commission’s representative however did obviously not even know his own proposals. That was proved by another topic of the debate. After Julia Reda brought up the issue of retroactive application (for all those who have not entirely read the proposal – including the Commission’s representative: see art. 18.2), the Commission’s representative and his assistant started browsing through the text hectically. Now that’s embarassing, don’t you think?

“We know that private users will be affected but there is no problem: We won't go after them.”

Eventually, Julia Reda and I managed to make the Commission and the publishers’ people admit that Internet users would be affected if the proposal gets enacted unamended. However, according to the publishers’ lobbyists, that’s not a problem because then it would simply be the decision of the publishers whether they want to go after the users or not. And since this is nothing that any European publisher would want, it will not happen.

OK, let this sink in. In other words that says: Admittedly there might be collaterals on the Internet users’ side that could disrupt the way we communicate online today. However, we choose to rely on the goodwill of the publishers that no mass enforcement against private users will take place.

Lobbying and legislating is not the same thing

I don’t object that the publishers make their case and that they want to get money from Google and Facebook. However foolish that claim will turn out in practise. In an open society and a free market, everybody should be allowed to say what he/she/it wants.

The problem kicks in when the legislators follow these claims without hesitation and critical assessment. Then we have a serious issue with democracy. And this is true especially for the ancillary copyright. Yesterday’s debate revealed one thing again very clearly: The Commission has adopted the publishers’ narrative 1:1. Their arguments are verbatim copies from the lobbying papers of the publishers, including all the lies and allegations.

There is and there was never a pondering of different interests and arguments. The point of Commissioner Oettinger and his staff is simply to make the press publishers a gift. No matter the cost, no matter the collateral damages. And if somebody dares to raise issues (like I did yesterday and uncounted people did before) his/her concerns are ignored. If that is a result of the “better regulation” approach of the current European Commission, I do not want to imagine what a “bad regulation” policy would look like.

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