Business

Friday 21 July 2017

Neighbouring rights and wrongs of European copyright law

Neighbouring rights is EU technocrat-speak for a form of copyright that would see search engines and online content aggregators forced to pay for using short extracts to link to articles on other sites (Stock picture)
Neighbouring rights is EU technocrat-speak for a form of copyright that would see search engines and online content aggregators forced to pay for using short extracts to link to articles on other sites (Stock picture)
Steve Dempsey

Steve Dempsey

The European Commission is currently canvassing opinion on two interesting copyright issues: neighbouring rights and the panorama exception.

Actually, the panorama exception isn't that interesting at all - it's a pointless bit of chin-stroking. The Commission is wondering whether people should be allowed to take photos of public buildings and distribute them without the permission of the architect.

Of course they should. Let's all move on.

Neighbouring rights, however, is a thornier matter.

Neighbouring rights is EU technocrat-speak for a form of copyright that would see search engines and online content aggregators forced to pay for using short extracts to link to articles on other sites. Some people have called it a 'Google tax'.

A handful of European publishers have been calling for legal clarification in instances where a service - such as Google - links to and shares content without the copyright-holder's permission. The thinking seems to be that new rights will translate into new cash flows for publishers. But there's a problem. This thinking is flawed.

In Germany, the introduction of legislation governing intellectual property rights in press products was a failure. German publishers waived their rights to payment for the use of snippets and opted back into Google's service, due to a loss in traffic. Similar legislation in Spain, called the AEDE Canon, allowed no such wriggle room - so Google News and services such as Planeta Ludico and NiagaRank shut their doors. Publishers suffered an 8pc to 15pc dip in traffic as a result. A study by Nera Consulting commissioned by the Spanish Association of Publishers of Periodicals concluded: "There is no theoretical or empirical justification for the introduction of a fee paid by news aggregators to publishers for linking to their content."

And the European Parliament's own legal affairs committee seems to agree. It rejected the ancillary rights last year, when considering copyright amendments. Julia Reda is an MEP for the German Pirate Party and a member of the European Parliament's Legal Affairs committee.

"The supposed goal of these laws in Germany and Spain was to get Google, as a news aggregator, to pay for showing short parts of articles and thumbnails," she says. "And in both cases the laws have been completely counter-productive - and in fact have not created any revenue for publishers, but have created barriers to entry for smaller news aggregators who may be able to compete with Google. And they have disproportionately hurt smaller publishers, which makes me wonder whether this is the goal to begin with."

Gunther Oettinger, the German Commissioner who is in charge of copyright, has repeatedly stated that he's open to an EU Google tax. In fact, his comments seem to imply it's some sort of personal crusade. "It's my personal ambition to create a modern European ancillary copyright law for press publishers by the end of 2016," he reportedly said last year.

But Reda believes this approach is at odds with what's needed: a simplification of copyright law. "Everybody runs the risk of breaking copyright law in their daily lives, whether they intend to or not," she says. "We need to simplify the rules. A neighbouring right for publishers is the opposite of that. It's creating new uncertainty. It's unclear what publishers will be able to do under this law. But it will be counter-productive for innovation and the digital economy."

Publishers face numerous challenges adapting to the digital ecosystem. There's an over-reliance on display ads, the rise of ad blocking, the outsourcing of distribution channels to tech titans such as Facebook, Apple and Google and an expectation that content should be free. With all these problems, it's perverse that a small number of publishers are lobbying for ancillary rights that have proven to do their industry harm.

No doubt Google, Facebook and co could be better held to account by legislators on a national and European level. In the interests of a well-informed democracy, a minimum level of service to publishers for news content could be set, or some transparency about news feeds and algorithms so that news publishers could ensure their content finds its audience.

Publishers may be better off lobbying for something other than an approach that has failed in two countries and that has already been rejected by the European Parliament.

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