Linking, copyright and ancillary rights: what does the Commission intend to do?

This has been an eventful week for EU copyright.

On Wednesday the EU Commission released: 

(1) a proposal for a Regulation on the cross-border portability of online content services in the internal market;

(2) a Communication - Towards a modern, more European copyright framework [both commented here and here], and 

(3) a public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights [the deadline for submissions is 1 April 2016]. This consultation "aims to help assess the functioning of Directive 2004/48/EC on the enforcement of intellectual property rights (IPRED) in the online environment, with a view to identify the possible need for adapting such provisions and to propose corrective measures. It will gather experience on the use and impact of IPRED and also seek views and opinions from those concerned with the application of the Directive on its functioning and the possible need for amendments. It also aims to gather experience and opinions about the use and impact of so-called 'follow the money' initiatives in the area of IPR enforcement."

This Kat has yet to digest all the news coming from Brussels, but one of the issues of likely greatest interest is probably what the Commission intends to do/propose in the area of linking.

This is an area that has been subject to interesting developments over the past couple of years, at both the judicial and policy/legislative levels. 

A biopic on
link-providers in Europe?

All those linking cases: game not over yet

In relation to the former, since the landmark decision of the Court of Justice of the European Union (CJEU) in Svensson [Katposts here] debate has intensified as to whether and under what conditions linking to protected content may fall within the scope of copyright protection and, as such, possibly amount to an infringement of the right of communication to the public within Article 3(1) of the InfoSoc Directive [for a Kat-table summarising what appears to be the current state of the art/law, click here]. 

Currently there are two references for a preliminary ruling pending before the CJEU, seeking clarification on a number of issues, including whether linking to unlawful content (photographic works hosted on a third-party website and content streaming, respectively) is an act that falls within the scope of Article 3(1) of the InfoSoc Directive. 

In this Kat's opinion, the response of the CJEU will be in the affirmative: the case of unlawful content is a scenario in which authorisation to the initial communication was not even provided. As such, the relevant rightholder had no public in mind for the sake of applying para 24 of the Svensson decision.

Whether this conclusion is desirable is a different issue though …

Ancillary rights over news content in Germany and Spain

As regards policy/legislative developments in the area of linking, German and Spain introduced an ancillary right over news content in 2013 and 2014, respectively.

Relevant provisions in the German Copyright Act (sections 87f, 87g and 87h) 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 non-irrelevant excerpts from newspaper articles without paying a fee. 

As explained here, the German initiative was aimed at recouping some of the revenues that traditional news publishers have lost to the web. The underlying idea was that news aggregators like Google News would not really boost visits to newspaper websites, but rather have a substitution effect. 

What however happened the very day the new law entered into force was that Google News became opt-in in Germany, with a number of major publishers announcing their intention to waive their ancillary right, and thus be indexed by Google.

Following the German initiative, Spain also decided to introduce an ancillary right over news content [here and here], with the relevant difference - however - that, unlike the German version, the Spanish ancillary right is unwaivable (Article 32 of the Ley de Propiedad Intelectual, as amended). This means that the right cannot be waived and requires those who wish to display non-insignificant excerpts to pay a licence fee.

What happened in Spain the very day the new Spanish right entered into force was that Google stopped providing its News service in Spain, with the (possibly unwanted) result that traffic to relevant Spanish news sites also decreased [here and here]. 

An EU-wide ancillary right over news content?

In the Communication released on Wednesday, the Commission announced that it would address "whether any action specific to news aggregators is needed, including intervening on rights".

As explained on the relevant Q&A section made available by the Commission, 

"The Commission has no plan to tax hyperlinks. We have no intention to ask people to pay for copyright when they simply share a hyperlink to content protected by copyright. Europeans share and post hyperlinks every day and they should remain free to do so [if by “taxing” the Commission intends “paying a licence fee”, then this statement frankly sounds a bit too bold without any legislative intervention, considering Svensson and its progeny]. 

The Commission will look at the activities of different types of intermediaries in relation to copyright-protected content. This is a different issue. 

News aggregators, for example, are not only using hyperlinks but also extracts of articles and may gain revenue doing so. 

Different solutions related to news aggregators, both legislative and market-led, are being tested at national level. We are closely looking into them and are analysing whether they deliver on their objectives."

It would thus appear that an EU-wide ancillary right over news content may be in sight, even just for consideration.

This seems in line with one of the first statements by Günther Oettinger as newly appointed EU Commissioner. As reported by this very blog, The Wall Street Journal wrote that in a series of interviews with German media, Mr Oettinger "floated various anti-Google ideas that could take on a more concrete form when he takes office". One option was indicated to be to charge Google for "tak[ing] intellectual property from the EU and work[ing] with it". 

Life's hard when
you do NOT want something

What appears ironic in all this story is that, while the Commission is considering whether to create new rights over news, the holders-to-be of such ancillary right do not appear to want it.

As reported by IFRRO, a few days ago a group of press publishers wrote a letter to the EU Commission, advocating against the introduction of an ancillary right for press publishers in the EU, on the German and Spanish model. 

In particular, the letter notes the following:

"As publishers, we know 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, new barriers to entry for news publishers such as ourselves. 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. Incredibly, in Spain, we are deprived of control over our own content, since we are not allowed to disseminate our news without payment, whether we like it or not. 

In short, this legislation is a step away from a forward-looking, modern and diverse European press. It will only make it harder for us to grow and develop innovative models. When the dust settles and the Spanish and German laws come into full force, it may be too late to realise that they are bad for journalism and European news publishing."

If those who would benefit from an ancillary right over news content do not want it, then who's really pushing for its introduction and why?