The European Commission is preparing to target people who hyperlink on the internet, forcing search engines and news portals to pay media companies for linking to their content.
Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.
Ancillary Copyright Law reloaded: A new path towards the old goal
In the draft at hand, the Commission bemoans a lack of clarity about which actions on the Internet need a permission and which ones do not: in legal terms, they put forward the question when something is an ‘act of communication to the public’.
This is a reference to a ruling of the European Court of Justice in the Svensson case. While on one hand the judges established that the simple act of linking to publicly available content is no copyright infringement, because it does not reach a new public, a few questions were left open bis this ruling, however: For example when exactly content can be seen as accessible by the public and how e.g. links surpassing paywalls are to be treated.
The key point is that the Commission frames ancillary copyright laws for press publishers as an attempt by a few member states to solve this problem legally. Instead of criticising the substance of these laws they only bemoan the possible ‘fragmentation’ of European law by these different implementations. A coherent European answer to the problem behind all this is a necessity. The reform of the executive rights on an EU-level is apparently another attempt to fulfil the goals also pursued through the introduction of ancillary copyright law.
However, the depiction of this goal by the Commission is plainly wrong: Ancillary copyright laws do not answer the questions poised by the European Court of Justice. It is rather an attempt to cross-finance struggling publishing houses by asking thriving internet companies such as google to pay up for linking to publicly available articles – to give price tags to exactly the same act of linking that has been clearly pronounced non-infringing by the European Court of Justice.
The Commission seems to want to reach the same by defining exclusive rights further, so the ‘clarity’ it seeks can only mean: sheer linking to content protected by copyright shall be seen as providing access to them, and require therefore explicit permission. This plan is a departure from the basic principle behind the Svensson ruling, which permitted free linking on the Internet, without the need for active examination of whom the linked material belongs to.
The most dangerous incarnation of the ancillary copyright zombies
Digital commissioner Günther Oettinger (CDU – EPP), affirmed dozens of times over the last months that he is considering the introduction of an ‘instrument’ on the European level to compensate the publishing houses’ sinking income caused by lower sales and less income through advertisement:
Even Martin Schulz (SPD – S&D), President of the European Parliament, struck a similar tone this week at the ‘Publishers’ Summit’ when he confirmed that ‘we need to clarify the relation between press publishers and digital platforms in the matter of copyright.’
The publishers are clearly wielding so much influence through lobbying that there is nothing that can stop big-party politicians from trying to misapply copyright law in order to support obsolete business models:
- Not the complete failure of pushed-through legislation like the one in Germany – where not only the hoped-for increase in revenue stayed away, but where the fast and meek introduction of a free licence for google, a grand backpedalling by the publishing houses, is a possible violation of German law.
- Not the collateral damage done to Spain’s IT-economy, where the ancillary copyright law forbid granting free licences, making the collection of newspaper articles by non-profit organisations illegal even when publishers would like to support it; and forcing Google to completely shut off it’s news service in Spain due to lack of probability.
- Not the ‘vast majority’ of thousands of Europeans asking for the freedom of linking in the Commission’s copyright consultation.
- Not the exclamation of our IT-industry and warnings from scientists.
- Not the repeated distinct rejection of introducing such plans into the report on the copyright directive by the European Parliament.
The prospective ‘instrument’ – Needing permission to link to something – would be the bluntest tool yet employed for a completely mistaken cause that is being pushed through against all odds. This would have even more dramatic effects than everything seen so far regarding ancillary copyright laws in Germany and Spain.
The damage would be humongous
Posting, sharing and sending links is a trivial every-day activity. It is impossible for both users and internet platforms to examine the legal status of every link. Content can change constantly online, so these examinations would actually have to take place constantly. What is more, every link leads to texts or pictures copyrighted by someone – no matter whether they know it or not; no matter whether they want to profit from this or not.
Subsequently there will be legal uncertainty, confusion, and waves of dissuasion carrying legal fees for everybody – it would sever the Internet’s neurons in order to promote the interests of the few. We can not let that happen!
Repeal this advance right now
The leaked text is not a law proposal, but just a summary of the Commission’s plans for next year. The plan is supposed to go public on the 9th of December. Affecting change in the now-known versions is nigh impossibly until then. But sometimes controversial proposals are leaked to test them – if there is no protest, the plan can be unworriedly pursued.
It is hence even more important to become active now! Tell the Commission that pursuing the introduction of ancillary copyright law means barking up the wrong tree – no matter whether it is introduced as a privilege, or a restriction to free linking is enacted. Do not allow the vested interests of the publishers’ lobby to destroy free communication on the Internet! Remind your representatives of them having rejected such approaches to introduce ancillary copyright laws with clear majorities in the past. Many representatives are worried about the competitiveness of European companies – explain to them that liability for linking brings incalculable risks with it for the European IT-industry and threatens to nip innovation in the bud! Encourage them to make clear once and for all:
Stop breaking the Internet!