Article 11 of the proposed EU copyright reform/expansion

Also called: “Link Tax”, Snippet Tax, Publishers’ Right, Neighbouring Right, Ancillary Copyright, Leistungsschutzrecht, Canon AEDE

Commission proposal

Anyone using snippets of journalistic online content must first get a license from the publisher. This new right for publishers would apply for 20 years after publication.

Example:
The automatic link previews social networks generate when users share links (showing the article headline, a thumbnail picture and a short excerpt) would require a license, as well as anyone analysing news content on the web like news aggregators, media monitoring services and fact checking services.

Intent:
The Commission wants to generate income for European publishers by allowing them to charge internet platforms for displaying snippets of their content to users. Stated targets are Google, Facebook, Twitter and Pinterest, who use such snippets in the course of linking to news articles.

Link previews like this one would require a license.

Consequences

  1. Likely to fail: This is an attempt to replicate at an EU level an idea that already 
failed badly in Germany and Spain – only applied more broadly and longer. 
The German law is likely about to be pronounced invalid in court, while the Spanish one “clearly had a negative impact on visibility and access to information in Spain” (EPRS). Journalists certainly never saw additional remuneration.
  2. Attack on the hyperlink: Because readers need to know what a link leads to before clicking, sites almost always include a snippet of the linked-to content as part of a link. Any limitation on snippets is therefore a limitation on linking.
  3. Limiting freedom of expression and access to information: This provision would restrict not just businesses, but also individuals who publish news snippets, e.g. bloggers. Because a neighbouring right, unlike a copyright, doesn’t require originality to apply to content, it would protect even short and uncreative snippets, such as purely factual headlines.
  4. Boosting fake news: Making it legally risky or expensive to link (with snippets) to news risks disincentivising the sharing of reputable news content. Since “fake news” and propaganda outlets are unlikely to charge for snippets, their content could as a result become more visible on social networks.
  5. News-related startups discouraged, even though this sector is in particular need of innovation and experimentation to find new business models, ways of reaching audiences, fact-checking and combating fake news etc., as technology advances.
  6. Small publishers disadvantaged: Aggregators create a level playing field for independent publishers with less brand recognition to reach audiences.
  7. In conflict with the Berne Convention, an international treaty that guarantees a right to quote news articles and create “press summaries”

Public debate

The Commission and news industry lobbies have repeatedly claimed that “individuals and hyperlinks wouldn’t be affected”, a claim unsupported by the text of the proposal:

  • Links routinely include snippets, so restricting snippets restricts linking.
  • While copyright exceptions would continue to apply, in many EU member states (e.g. Germany), individuals sharing news snippets without additional commentary or context are not already covered by exceptions such as the one for quotation.
  • Platforms like social networks would need to deny individuals the sharing of links including unlicensed snippets, impacting directly what internet users can/can’t do.

The industry paints this as “only getting what publishers of other kinds of works already have”, e.g. music publishers. This argument neglects a major difference: While the contribution of a music publisher in turning a song composed on paper into a concrete recording is self-evident, an article as written by a journalist and its publication on a news site are hardly distinguishable, thus not requiring duplicate layers of rights.

Independent academics unanimously criticise the proposal:

Several stakeholders who are supposed to benefit from the proposal have rejected it:

  • “would be a serious blow for investigative journalism and present a giant step backward in the fight against misinformation” –Organized Crime and Corruption Reporting Project
  • “An attack on innovation” … “unhelpful, counterproductive and not in the interest of all publishers” … “bad for competition, media pluralism and for internet users” … “Serious negative effects on the quality of the press, freedom of opinion and freedom of expression”European Innovative Media Publishers (also here)
  • “Such proposals make it harder for us to be heard, to reach new readers and new audiences. They create new barriers between us and our readers […] It will be harder for us to be present, discovered and accessed by our readers online. It will be harder for our readers to engage with our stories online, to share links or our headlines with their friends. It will be harder for us to grow, develop new sources of information and innovate in our business.” –Alliance of independent publishers, including the publishers of 900 periodicals in Spain and 155 local newspapers in Italy
  • “[The plan] will stifle and drown the process of digital transformation” –Major Spanish daily El País
  • “[The plan] risks […] putting all EU-based publications at a competitive disadvantage.”71 independent publishers
  • Many more quotes from industry insiders here

A coalition of open science advocates called it “a significant threat to an informed and literate society”.

The #SaveTheLink campaign run by the NGO OpenMedia collected over 12,000 responses for the Commission’s consultation on the topic and is supported by over 135,000 people online.

European Parliament

  • In the (leading) Legal Affairs Committee, rapporteur Axel Voss (EPP, Germany) wants to establish the link tax as an inalienable right, meaning publishers must charge whether they want to or not. His predecessor, MEP Comodini, had proposed making it easier for publishers to enforce their copyrights rather than creating a new right, but subsequently left the Parliament. A study commissioned by the committee recommends the abandonment of the plan.
  • The current spokespeople on the issue for the EPP and ALDE groups are in favour of the Commission proposal, while S&D and Greens/EFA shadows have argued for its removal.
  • The Industry Committee wants to expand the proposal to also cover scientific articles (attacking open access) as well as analogue uses of publisher content.
  • The Culture Committee agrees with the proposal, but seeks to carve out an exception for “legitimate uses” by “individual users acting in a private and non-commercial capacity” – but specifically not for link previews on social networks. It wants to limit the duration of protection to 8 years.
  • The Internal Market and Consumer Protection Committee failed to find any consensus on the proposal in its report.

Previously, the EP voted against adding this idea to the Reda Report in 2015, 83 MEPs asked the Commission to drop the plan in an open letter, and MEPs from all political groups recently joined Julia Reda’s video campaign against it.

Take action


Are you against this idea? Contact your elected representative today at SaveTheLink.org – it’s quick and easy!

« What other changes to copyright are planned? Back to the overview

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

7 comments

  1. 1
    cromwell, oliver

    censorship by any other name is still censorship.

  2. 2
    John Redican

    Wouldn’t it be better to give the original publisher of an article the ability to control the content of the snippets, rather than limiting what can be repeated on other sites?

    This seems more an attempt to profit financially from the advertising provided from other sites rather than limiting those sites’ ability to “steal” articles.

    Should social media sites begin to charge publishers for providing coverage of their articles? Would this benefit other sources of news articles, such as Reuters and the Associated Press?

    Who is considered to be the original source of an article, and how much of the article would have to be changed before it would be considered a new article rather than just an excerpt or quotation from a previously published one?

    • Actually it seems the case, at least by my layman’s interpretation from reading the original proposal and related directive (2001/something).

  3. 3

    Down with the proposals for art. 11 & 13 ! No more censorship !

  4. 4

    Not to mention that these proposals also require universal surveillance of everything you do online.

  5. 5

    Great essential job!

  6. 6

    I fail to understand the problem they are trying to solve with this proposal, the one publishing content is already empowered to choose the business model: paid or not paid, shareable or not shareable… this is too much bureaucracy intervention.

What do you think?