European Commission introduces copyright on links; presents worthless copyright harshening proposal for the EU
The European Commission has finally presented its long-awaited copyright reform proposal. It ignores everything positive the European Parliament demanded in the earlier Reda report, and doubles down on introducing copyright for links.
The European Commission’s proposal has been published. While it will certainly take a few days to dissect it in detail, a few things are apparent immediately, like this piece:
A fair sharing of value is also necessary to ensure the sustainability of the press publications sector. Press publishers are facing difficulties in licensing their publications online and obtaining a fair share of the value they generate. This could ultimately affect citizens’ access to information. This proposal provides for a new right for press publishers aiming at facilitating online licensing of their publications, the recoupment of their investment and the enforcement of their rights.
Yes, this is the so-called “Google Tax” that was tried with disastrous results in Germany and Spain, where Google was supposed to be paying the publications linked to, a mechanism called “ancillary copyright” and covering hyperlinks. The Eurocrats here don’t understand that the entity linking is the one providing value to the one being linked to, and want to reverse that market relationship by law. As a result, in all interfered-with markets, the offering disappears – in Germany, Google just said “sign on the dotted line to be linked freely or don’t be linked at all”, and in Spain, where this option was outlawed, Google News just shut down completely instead, leaving news sites without that traffic. Eurocrats seem to base their policy proposal on a dangerously low amount of actual evidence. We have enough forms of copyright already and certainly don’t need (or want) this “ancillary copyright” construct.
Perhaps in order to understand this weaseling, framing is best understood elsewhere than Europe. The Wall Street Journal presents the issue as “The proposals have been—and are likely to remain—the subject of heavy lobbying from copyright holders like record labels and newspaper publishers on one hand, and technology firms on the other.” This is a completely wrong, not to say dishonest, framing – a dishonesty that the copyright industry salivates over.
The battle over the copyright monopoly was never one random industry versus another. The battle was always liberty versus lock-in. Just because technology firms profit from liberty, that doesn’t make this battle stand between two equal types of industries where you can look at the respective GDP contribution and see who should get a bone of meat in this round of legislation.
The proposal is full of the utmost garbage weasel language. For example, a proposal like this must address so-called “fundamental rights” (like freedoms of speech and expression), and it justifies the proposal, among other things, like this:
By improving the bargaining position of authors and performers and the control rightholders have on the use of their copyright-protected content, the proposal will have a positive impact on copyright as a property right
So by strengthening a governmentally-sanctioned private monopoly — “copyright” — that interferes with actual property rights, the Commission argues, those monopolies can appear more like property rights, which are protected. This is the worst of the worst of political language types.
The one somewhat positive aspect concerns out-of-print publications, described in the proposal as “out of commerce works”. For cultural heritage reasons, the proposal states that the public must be able to access this via certain institutions (that are themselves subject to heavy corruption and other problems, but that’s somewhat a separate issue), but the Commission then neuters its entire proposal by this short passage:
all rightholders may at any time object to their works or other subject-matter being deemed to be out of commerce and exclude the application of the licence to their works or other subject-matter
It’s also noteworthy that, at the end of the day, the European Commission aims to let publishers determine exactly what rights people have and don’t have anyway, the law be damned, by upholding the DMCA-equivalent ban on circumventing Digital Restriction Measures, even when such measures interfere with legal and fundamental rights. Note particularly the last sentence, which, again, indicates a dangerously low level of evidence basis for this legislation.
The protection of technological measures established in Directive 2001/29/EC remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law. This protection should be maintained while ensuring that the use of technological measures does not prevent the enjoyment of the exceptions and the limitation established in this Directive, which are particularly relevant in the online environment. Rightholders should have the opportunity to ensure this through voluntary measures
Finally, as expected, this proposal meddles with the definition of “communication to the public” quite a bit, which is the definition that the European Court of Justice has used in a number of pivotal cases when judging whether something infringes on any of the copyright monopolies. This proposal needs more analysis, much more.
The European Commission is the EU’s executive branch, which drafts European law like this one. But the European Parliament must approve the drafted law. It remains to be seen how the European Commission had intended to make that happen, given that this goes against everything the Parliament had requested in terms of copyright reform via the earlier Reda report which was adopted by the European Parliament by a huge margin (445 votes to 65).