The European Commission is preparing a new attempt to force search engines and news portals pay media companies for promoting their freely accessible articles. Earlier attempts at establishing this principle resulted in Germany’s and Spain’s ancillary copyright laws for press publishers. These attempts backfired – with tremendous collateral damage.
According to a draft communication on copyright reform leaked yesterday (via IPKat), the Commission is considering putting the simple act of linking to content under copyright protection. This idea flies in the face of both existing interpretation and spirit of the law as well as common sense. Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.
Statewatch published a draft of the Commission’s own Impact assessment on the modernisation of EU copyright rules which clearly states that the Commission will indeed propose the introduction of an EU wide ancillary copyright for news publishers.
While nobody expected the EU commission to come forward with a proposal for a literal “link tax”, the “introduction in EU law of a related right covering online uses of news publications” is exactly what civil society groups like Save the Link are criticising as a link tax.
Last week the European Commission released its bombshell Directive on Copyright in the Digital Single Market. And while analyzing this proposal has occupied most of our time, there were several other documents released simultaneously by the Commission that also deserve the public’s attention. Of particular interest was the long-awaited report on the results of the public consultation on 1) the panorama exception, and 2) the role of publishers in the copyright value chain (aka ancillary copyright proposal).
Member of the European Parliament (MEP) Therese Comodini Cachia, the Rapporteur for JURI on this file, has proposed a number of changes to the original broken and extreme proposal of the European Commission (EC). Ms Comodini has taken a reasonable approach and has amended the worst sections of the proposal: the “censorship machine” (aka upload filter) proposal in Article 13, and the suggestion to expand the “ancillary copyright” (aka “link tax”) that failed in Germany and Spain and was planned to be expanded to the entire EU.
In 2013, Germany adopted a new neighbouring right over news content and in favour of press publishers (Leistungsschutzrecht für Presseverlege, LSR). The newly created sections 87f, 87g and 87h of the German Copyright Act provide for the exclusive right of press publishers to exploit their contents commercially for one year, thus preventing search engines and news aggregators from displaying excerpts from newspaper articles without paying a fee.
This article discusses the latest development in relation to the neighbouring right in favour of press publishers is today's decision of the Landgericht Berlin to make a reference to the Court of Justice of the European Union (CJEU) in the context of litigation between the collecting society responsible to collect royalties in favour of publishers and Google, to receiving guidance on the actual enforceability of the German press publishers' right.
On 8 June, the European Parliament Committee on the Internal Market and Consumer Protection (IMCO) voted on the European Commission’s proposal for a Copyright Directive. The IMCO Committee failed to adopt any amendments to Article 11, basically giving up its opportunity to have an influence on the process of fixing the Commission’s absurd proposal.