Kategorie proposal

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.

 

Voss's changes can not cure the rotten root   Am 17. Mai 2018 - 16:03 Uhr von Tom Hirche

The rapporteur of the Legal Affairs Committee (JURI) of the European Parliament, MEP Axel Voss (EPP, Germany) has updated his draft compromise amendment for Article 11, the ancillary copyright for press publishers, pushing for a vote next month. Although the proposed text is now less extreme compared to the first version from seven weeks ago, it fails to tackle the real problem. Weiter

MEP Voss presents the most extreme proposal for a link tax (so far)   Am 28. März 2018 - 23:11 Uhr von Tom Hirche

We have called the publisher's right as proposed by the EU Commission in September 2016 an "ancillary copyright on steroids" – for good reasons! Now MEP Axel Voss has published his proposal for the European Parliament's position which is so extreme and destructive, not even the Incredible Hulk would dare to pick a fight. Weiter

JURI members try to water down results of their own requested study   Am 8. Dezember 2017 - 15:21 Uhr von Tom Hirche

A couple of months ago, the European Parliament’s directorate general for internal policies of the union had commissioned a study on the proposed new right for publishers. After the results were published last October, they were finally presented to members of the Legal Affairs Committee yesterday. What should have been an informing workshop turned out to be yet another opportunity for the right's supporters to shut down arguments with their lies and to cause confusion. Weiter

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

Estonia's proposal is good and bad at the same time   Am 31. August 2017 - 18:01 Uhr von Tom Hirche

Summer break is over. Statewatch has leaked a compromise proposal from the Estonian Presidency of the Council of the European Union to the EU Commission's initial proposal for a directive on copyright in the Digital Single Market. When it comes to Article 11 containing the ancillary copyright for press publishers, the Presidency does not come up with only one but with two completely different proposals. Weiter

Two more EP Committies gang up against free linking   Am 12. Juli 2017 - 10:42 Uhr von Tom Hirche

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. Weiter

Parliament's largest group to fully endorse Commission's proposal for a link tax   Am 9. Juli 2017 - 16:47 Uhr von Tom Hirche

The European Commission's proposal for an ancillary copyright for press publishers has received a tremendous amount of criticism from many MEPs of all groups of the European Parliament. But now the largest group, the European People's Party (EPP), has adopted a joint position that fully supports the Commission's line while ignoring the European people's voices and all academic advice. Weiter

IMCO supports link tax – several MEPs did not attend the vote   Am 8. Juni 2017 - 20:06 Uhr von Tom Hirche

This morning, the European Parliament's Committee on Internal Market and Consumer Protection (IMCO) voted on the Copyright in the Digital Single Market directive (2016/0280(COD)) as the first of five committees. The outcome is of great significance to the other votes that are yet to come. Unfortunately, the ancillary copyright for press publishers is still very much alive. Weiter

Opposition against link tax gets big ally from Spain   Am 24. März 2017 - 18:44 Uhr von Tom Hirche

Again and again the big (mainly German) publishing houses claim that an ancillary copyright for press publishers will do great good to their industry as a whole. They repeat their mantra despite the fact that several publishers are explicitly rejecting the introducing of such a right since this idea emerged in Germany a few years ago. Now, at a time when the European Parliament prepares to stop the Commission's plans, a major Spanish publisher joins those "rebels". Weiter

Stop the censorship machine!   Am 13. März 2017 - 17:38 Uhr von Tom Hirche

Besides the introduction of an ancillary copyright for press publishers a.k.a. the link tax, the European Commission also wants internet platforms to apply automated upload filtering technologies to all of their user's content. Together with 27 other civil society organisations, we have signed an open letter addressed to the European Institutions and urge them to delete this proposal. Weiter

Weitere Infos zu dieser News

"Grossly disproportionate" – New study on publisher's right   Am 17. Januar 2017 - 11:14 Uhr von Tom Hirche

OpenForum Europe (OFE) has commissioned Dr. Mireille van Eechoud, who is Professor of Information Law at the University of Amsterdam's Faculty of Law, to conduct a study on the ancillary copyright for publishers as proposed by the European Commission. It is very carefully written and pays special attention to the freedom of expression, the special effects on authors and open data/science. 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

British top scholars against European ancillary copyright for press publishers   Am 17. Dezember 2016 - 11:38 Uhr von Tom Hirche

Akteure: Schlagworte: Lizenz: 

A group of 37 professors and scholars of Intellectual Property, Information Law and Digital Economy have sent a joint letter to the UK Intellectual Property Office (IPO) presenting their view on the ancillary copyright for press publishers as proposed by the EU Commission. They advise the UK Government to oppose this proposal for various reasons. Weiter

Weitere Infos zu dieser News

CEIPI's opinion on a European ancillary copyright for press publishers   Am 13. Dezember 2016 - 9:42 Uhr von Tom Hirche

On November 28, the Centre for International Intellectual Property Studies (CEIPI) at the University of Strasbourg has published its opinion on the European Commission's copyright reform proposal which was introduced on September 14, 2016. The opinion was written by Professor Christophe Geiger, Oleksandr Bulayenko and Giancarlo Frosio who solely focused on the proposed introduction of neighbouring rights for press publishers in EU law. In their view, the negative effects of the proposal prevail. Weiter

Weitere Infos zu dieser News

Our statement on the Commission's proposal regarding a European ancillary copyright for press publishers   Am 6. Dezember 2016 - 14:36 Uhr von Tom Hirche

On the 20th September 2016 the Federal Ministry of Justice and Consumer Protection called on all stakeholders involved to provide their opinion on the EU Commission's proposal for a directive on copyright in the Digital Single Market (DSM-directive). A few weeks later we submitted our statement which also functions as a condensed overview on all critical aspects regarding a European ancillary copyright for press publishers. Unfortunately, at that time it had only been available in German. But now you can either download an English version (PDF) or read the full text here: Weiter

Weitere Infos zu dieser News

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