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Tuesday, February 28, 2017
Common Position Statement on the proposed EU Directive on Copyright in the Single Market
We, the undersigned, remain highly concerned by the current wording of the proposed new EU Directive on Copyright in the Single Market, in particular Article 11 which would provide ‘press publications’ with new rights for the ‘digital use’ of their publications (known as ‘related rights’, ‘neighbouring rights’ or ‘ancillary copyright’).The past 20 years has seen radical transformations in how news, analysis and opinion is produced, distributed, consumed and monetised.
While some press publishers have clearly struggled, the prevailing legal, commercial and technological environment has presented massive opportunities for many more. Media diversity has blossomed. Brands like Huffington Post and BuzzFeed have become household names. Today, people consume news content from a much wider variety of sources than they did. In two decades, the number of daily news sources a person can easily access has grown from the tens, to the tens of thousands.
Charities, independent journalists, innovative media startups, and even new launches from long-established media organisations, can all reach audiences that were previously inaccessible, at low cost, thanks to the free circulation of headlines or short snippets linking to their articles on social media and responsible aggregation platforms, that direct traffic to their websites and provide exposure for their brands.
Article 11 of the Directive, in its current form, threatens to upset this. While purporting to fund high quality journalism and further the interests of press publications, through a levy on those making ‘digital use’ of their content, it risks benefiting some publications at the expense of others, creating perverse incentives, and putting all EU-based publications at a competitive disadvantage.
1. The definition of press publications is unclear but appears to unfairly and arbitrarily exclude reputable self-publishing journalists, academics, and bloggers. Many such publications produce content of a quality rivalling that produced by large organisations. The law should provide a level playing field.
2. Smaller publications risk being prejudiced by preferential deals cut by the largest publications with the largest traffic sources. There is no provision that any levies must be fairly applied to all kinds of services making systematic use of snippets. Innovation, in press publishing, aggregation and social media, would be put at risk. SME publications rely disproportionately on aggregators and social media to reach their audience.
3. Since the draft Directive does not define a clear and credible metric of ‘digital use’, it will fall to local collecting organisations and courts to determine how charges are levied, creating a patchwork of regulation across EU member states and making a mockery of the aim to build an EU-wide system.
In any case it is hard to envisage a metric of ‘digital use’ which would not create perverse incentives for publications, as well as those on whom the charges would be levied. Should ‘digital use’ be measured in clickthroughs, publications will be rewarded for producing more clickbait, and aggregators for making it more difficult for users to click through. Should ‘digital use’ be measured in terms of snippets shown to users -- quite apart from the accounting headache this will create -- publications will be rewarded for churnalism, and aggregators for cutting back the number of articles they link to.
However ‘digital use’ is measured, the consequence of levying new charges on aggregators will be, from their perspective, to penalise the inclusion of content from EU publications, which will then be placed at a competitive disadvantage. (It is unclear whether non-EU publications would be entitled to receive any levies, however they would be unlikely to enforce their rights).
4. Studies of similar measures introduced in Germany and Spain found evidence that these measures put small publishers, who disproportionately rely on exposure and traffic from aggregators, at a disadvantage.
5. In addition to all of the concerns outlined above, the proposed measures go much further than is strictly necessary to address the stated aims of helping those publications struggling to enforce their existing rights in the courts against disreputable aggregators who reproduce substantial extracts of their content at scale, and those with legacy cost bases struggling in the transition from print to digital.
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