A last-minute amendment by German EPP member Angelika Niebler is threatening to undermine my report for a progressive copyright reform:
The freedom to hyperlink is at stake, should amendment 1 be adopted during Thursday’s final plenary vote. Although her attempt at introducing a call for an ancillary copyright for press publishers to my report was already rejected by the Legal Affairs Committee, and even though the political groups had agreed not to table any additional proposals, she is taking another shot.
Recap: The ancillary copyright shipwreck
Copying them doesn’t make bad ideas better. German publishers succeeded with their lobby campaign to introduce their very own exclusive right under national law, the so-called ancillary copyright, whose main aim was to force Google to cross-subsidise the large publishers’ online news offerings. Although this law in practice has not earned publishers a single additional cent and has in fact ironically provided Google with a market advantage over its competitors, it was only a matter of time before publishers and their collecting society VG Media would elevate their campaign for the ancillary copyright to the European level.
The ancillary copyright is an attack on one of the foundations of online communication: The freedom to link from one resource to another. Because many publishers from the print era have failed to innovate and create sustainable business models for online journalism, they are trying to put a price tag on linking to their freely available news articles. A similar law in Spain has led not only to the shut-down of Google News, but has made life difficult for all online projects that rely on aggregating information from the media.
The European Parliament has so far turned a cold shoulder
While Digital Commissioner Günther Oettinger has floated the idea of a European ancillary copyright for press publishers from the beginning of his term, the Parliament has taken a stance against such plans during the negotiations on my copyright report. A large majority of the legal affairs committee voted down an amendment by German EPP member Angelika Niebler:
|3g. (new) Notes that the current legal framework provides for neighbouring rights for performers, phonogram producers, film producers and broadcasting companies, but not for press publishers; calls on the Commission, therefore, to analyse whether neighbouring rights for press publishers can provide appropriate protection and remuneration for their work in a digital media world;|
Independently, even Niebler’s own group in the European Parliament, the European People’s Party (EPP), supported a compromise amendment of all groups which criticises the ancillary copyright regimes in some member states, particularly the Spanish Canon AEDE, for instituting a fee for an activity that has not caused provable harm to the publishers. The listing of articles in news aggregators such as Google News is completely optional. Publishers could opt out by technical means at any time if they actually felt that news aggregators were causing them harm. The fact that hardly any publisher makes use of this possibility indicates that news aggregation is helpful rather than harmful to the publishers, as it provides a stream of new visitors to the publishers’ websites.
|Compromise amendment 21, adopted by the legal affairs committee:|
|57. Notes that in some Member States statutory licences aimed at compensatory schemes have been introduced; stresses the need to ensure that acts which are permissible under an exception should remain so; reminds that compensation for the exercise of exceptions and limitations should only be considered in cases where acts deemed to fall under an exception cause harm to the right holder; further calls on the OHIM Observatory for a full scientific evaluation of these Member state measures and their effect on each affected stakeholder;|
German EPP member is relentless in pushing for the ‘Google tax’
This blow to their campaign did not cause the publishers to cease their lobbying. Immediately after the vote in the Legal Affairs Committee, collecting society VG Media hosted a panel discussion in Bavaria’s representation to the European Union (the German state Niebler’s party CSU is native to and has led since 1957) entitled “The importance of neighbouring rights for media pluralism in Europe”. I reported the results of the Committee’s vote to the idea’s proponents, who were predictably less than pleased with the outcome. During his welcoming remarks, Commissioner Oettinger offered the interest groups in attendance, such as VG Media and the Axel Springer publishing house, the prospect to take an advance look at the copyright reform legislation he is currently preparing, and to discuss its contents with the Commission even before it will be presented to the European Parliament at the end of the year.
But first, this Thursday, July 9, the final vote on my copyright report will be on the agenda of the European Parliament plenary session. With this report, Parliament is hammering out its stance on the current status of EU copyright law. The European Commission will have to take the report’s contents into account while preparing its proposal for European copyright reform.
In order not to put at risk the compromise struck in the Legal Affairs Committee, the groups – among them the EPP’s chief negotiator Therese Comodini Cachia – committed themselves not to table further amendments in plenary. That notwithstanding, Niebler collected the signatures of 81 EPP members, including the majority of the German delegation, in order to table an amendment independent of her parliamentary group. Predictably, this amendment calls on the Commission to make a proposal for the benefit of press publishers:
|Amendment 1 by Angelika Niebler (Germany, EPP, CSU)|
|57a. (new) Calls on the Commission to evaluate and come forward with a proposal on how quality journalism can be preserved, even in the digital age, in order to guarantee media pluralism, in particular taking into account the important role journalists, authors and media providers such as press publishers play with regard thereto;|
This is clearly an attempt to reintroduce a call for a European ancillary copyright law through the back door. Niebler has engineered the wording such that Oettinger could likely interpret this as the Parliament’s blessing for making a “snippet tax” part of his reform proposal. After all, according to the VG Media, that’s exactly the right instrument to guarantee “media pluralism”.
The European Parliament must stand firm: No price tag on linking!
This renewed attempt at introducing a European ancillary copyright is clearly the work of publishing giants that are still spending most of their energy fighting technological progress, rather than developing new business models that work with (and not against) the Internet. Those in the publishing world who prefer to look ahead, meanwhile, spare no criticism. The former editor in chief of German weekly Zeit Online Wolfgang Blau, currently Director of Digital Strategy at Britain’s The Guardian, hit the nail on the head:
“The very few large and international publishing houses […] use the ancillary copyright as a gesture of power towards Google. They want to prove that despite their dwindling journalistic influence, they are still in a position to instrumentalise parliaments in Europe for their purposes and to create obstacles for unwelcome competition. In my opinion, those few large companies have never been after the ancillary copyright per se, but after strengthening their future bargaining position vis-a-vis American online intermediaries in other matters. I often wonder how many parliamentarians have actually understood how they have been instrumentalised, and whether the various parties would be willing to participate in these schemes if Google were a European company. Personally, I couldn’t care less about Google, but I do care about the Internet. (translation from German by my team)”
We have to make sure that plenary amendment 1 to my copyright report is rejected. European copyright reform must simplify the sharing of knowledge and culture, not impede it with new bureaucracy that is already doomed to fail.
No lobby may gain enough power over politics to push through an obviously useless and counterproductive law. This vote is a chance for Members of the European Parliament to show that publishing houses do not have the same degree of power over us that they apparently do over German and Spanish lawmakers. Beyond laying to rest the idea of a EU-wide ancillary copyright law, it would also bolster the numerous experts who are calling for the abolishment of these laws in Germany and Spain. And finally, it could win back some of the people’s trust in the independence of this institution.
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