After the European Parliament's Committee on Internal Market and Consumer Protection (IMCO) voted on its opinion on the new Copyright Directive a month ago, it were the Committees for Culture and Education (CULT - opinion) and for Industry, Research and Energy (ITRE - opinion) that both had their turns yesterday. The result: the suggestion of an even worse ancillary copyright for press publishers.

Mediocre starting position

Regarding the CULT's vote it was of little to no surprise that the European Commission's initial proposal for an ancillary copyright a.k.a. link tax appealed to the majority of MEPs. The draft opinion that had been prepared by the elected rapporteur Marc Joulaud (EPP) did already strongly favour the introduction of a new publisher's right. However, the outcome is nevertheless shocking because the Commission's proposal was not only approved but also changed for the worse!

In the case of the ITRE, the starting position looked a bit better as elected rapporteur Zdzisław Krasnodębski (ECR) proposed a change away from the publishers' right to the presumption that an author had transferred his rights onto the publishers. This would enable the latter to negotiate licence agreements and to fight infringements much easier while at the same time the freedom of the net would be maintained.

Tragically, in both Committees the good and fair amendments failed miserably to prevail against the destructive and hypocritical ones.

What was decided?

Both Committees' opinions want to expand the publishers' right's scope. Instead of applying to digital uses only, every use of publishers' texts shall be covered be it offline or online. Combined with the untouched Article 18(2) which states that the link tax shall also apply to all press publications published in the past, this would deeply damage the freedom of information.

But there are exceptions to it, right? Well, the ITRE also wants to get rid of the exception for scientific and academic papers. Organisations like the International Association for Scientific, Technical and Medical Publishers (STM) lobbied hard for their goal to not be excluded from the publishers' right. Although this might sound good at first glance, the consequence will be that people stop linking to these papers as they fear they have to pay a remuneration. This would be a hard blow to all open access initiatives and the free spread of knowledge.

The CULT wants a new exception to the link tax to be added that raises a tremendous amount of questions and thus only creates legal uncertainty:

"The rights granted under this Directive should be without prejudice to the authors’ rights and should not apply to the legitimate uses of press publications by individual users acting in a private and non-commercial capacity."

What is the definition of a "legitimate use" and whose decision will it be? The publishers'? When can the sharing of a link be regarded as private or non-commercial? Is it private when I share a link on a publicly accessible website? Is it non-commercial when I post a link on a website or platform that has ads?

The addition continues:

The protection granted to press publications under this Directive should apply to content automatically generated by an act of hyperlinking related to a press publication without prejudice to the legitimate use of quotations.

So we shall not be allowed to share a link when this automatically triggers the display of a snippet? What exactly is the harm to the publishers caused by this? Are they not able to handle all the additional viewers they receive? Do they really think any company will continue to make use of this technique when they have to pay for it?

Any hope?

The information of freedom is not yet lost. The Committee in charge of the European Parliament's final text is the Committee on Legal Affairs (JURI) which will have its final vote on 10th October 2017. Other Committees' opinions only provide something like a "specialized expertise" (although it does not look like this). Unfortunately, the new rapporteur of the JURI is a strong advocate of the new publishers' right. So don't stop to raise your voice and call your representatives!

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