Is it a good idea to introduce an extra copyright for news sites in the EU, which would make sharing news articles with little snippets of their content illegal, unless licensed? The Legal Affairs Committee of the European Parliament commissioned an independent academic study to find out.

The results came back crystal clear. But if you attended their presentation to the Committee today, you would come away with a much murkier impression.

Nearly universal criticism

Reviewing the academic literature on the issue, the study found “nearly universal criticism” of the proposal for a new neighbouring right.

This matches an open letter signed by 43 professors and scholars from 8 of Europe’s leading IP law centers, which earlier this year claimed “independent scientific consensus” that the proposal “cannot be allowed to stand”. It also echoes the analysis of IP law professor Bernt Hugenholtz, who in May concluded “all the academic responses unanimously point in the same direction, namely that the right “fails the test of good regulation on almost all imaginable accounts”. Remember: These are not individual opinions, but assessments of the entirety of the scientific debate by independent academics.

Another remarkable data point: Not one single editor or publisher who agreed to be interviewed for the study was found to believe that the neighboring right is a good idea.

…unless you hand pick the critics

The workshop that took place today had 4 speakers: The two authors of the study, and then two academics who completely contradict its findings.

One of them, Prof. Thomas Höppner, in his evaluation found the proposal to be “without alternatives to secure a free press”.

That surprisingly far-reaching conclusion should come as good news to the European publishers’ lobby, who has long campaigned for this new right under the slogan “A necessity for the sustainability of a free and pluralistic press sector”. While other corporate lobby campaign slogans have been known to sometimes exaggerate their case to make a splashy point, it’s nice to see one confirmed entirely by science!

Besides conducting such research, another activity of Mr Höppner’s is serving as the lawyer of the German press publishers’ association BDZV in an ongoing lawsuit against an US-based internet giant targeted by the new right (though on another issue). It’s a small world!

MEP Axel Voss (EPP), responsible for shepherding the copyright reform law through the European Parliament, last week at a conference stated he “knows of no alternative to finance and secure a free press”. But that totally aside, he very much welcomed Mr Höppner’s invitation. It is, he explained, after all necessary to “hear both sides” and “have a balanced view”.

He said, she said… who can really tell? ¯\_(ツ)_/¯

Of course it is fine to invite to an academic debate speakers who hold viewpoints that differ from the mainstream consensus. It makes for an engaging debate and helps strengthen everyone’s arguments. That’s why when I recently hosted a debate on this issue at the European Parliament myself, my academic co-organizers chose to invite Mr Höppner as one of several panelists.

But first commissioning a neutral study in which open-ended interviews are conducted and the available academic literature is summarized, and only after learning its results deciding to lend an equal amount of attention at its presentation to rare outliers contradicting it: That does not serve to achieve a balanced presentation for policy makers.

It serves to muddy the waters. It provides cover for painting the scientific view as contradictory and inconclusive, when it in fact hardly is.

It’s not entirely different from commissioning a study on whether climate change exists, then after the study concludes that it does, inviting an academic with a different opinion who also happens to be a lawyer for the fossil fuels industry – and then claiming that the jury is still out.

I consulted internal Parliament documents to find out why the study, which was already finished in late September, was not presented to the committee earlier. What I found: Different independent academic experts were considered by the Parliament administration, but then discarded because they were not going to argue in favour of the extra copyright for news sites. It took them a full two months to locate speakers who think that charging for news snippets is a good idea.

Policy-based evidence making

This story demonstrates once again the powerful political will of many in Brussels to fulfill the policy requests of the big publishing conglomerates with hardly any regard to the collateral damage these plans would afflict upon people’s fundamental rights and their freedom to share content online, as well as independent publishers and innovative startup companies.

Scientific facts are not enough to break through. Only one thing can now stop these plans: Public pressure applied by the people of Europe on their politicians.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

My name is Julia, I'm the Pirate in the European Parliament.

I'm fighting to make copyright in the EU unified, progressive and fit for the future. Will you join me?

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