Loopholes the size of a double-decker bus would make a mockery of the Copyright Reform

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Copyright_journalist [European Parliament / Flickr]

Lawmakers must ensure that the new EU copyright directive protects press publishers and their right to assert their copyright in the digital age, argues Christian van Thillo.

Christian Van Thillo is chairman of the European Publishers Council and CEO of de Persgroep

The EU Institutions meet again this month in trilogue to try once more to agree the Copyright Reform.

It has been a long, hard fight with radical anti-copyright campaigners and vested interests such as Google and YouTube pitched against the content creators who need modern, workable copyright rules for the digital age.

Article 11 of the proposed copyright reform would give European press publishers a Neighbouring Right – providing them with their own legal standing to negotiate with companies who wish to use their content for commercial purposes – but only if the Council moves in line with the European Parliament’s adopted position and doesn’t lose sight of the objectives of the legislation.

If not, the EU will be responsible for adopting a Publisher’s Right that actually legitimises the very predatory practices it was designed to end.

2018 closed with a Council mandate countenancing an exception for any information society service wishing to re-publish “insubstantial parts” of a press publication, unless these extracts met a “creativity threshold”, a definition of press intended “for the general public” and exceptions for Text and Data Mining – all loopholes that would allow any company to ignore the Publisher’s Right.

I sincerely hope that the European Parliament’s Rapporteur will stand his ground, and that member states will agree that a Publisher’s Neighbouring Right has to be both clear and enforceable, without caveats that empty the right of any value and give platforms a free pass.

What is wrong with giving publishers the legal means to ask any company, including Google, to agree on terms as to how they will commercialise publishers’ content? Why would legislators want to handicap publishers in any such negotiations when the very purpose of the right is to level the playing field?

The very principle of copyright is at stake here – the right and the ability of the creator and those who invest in the production of professional content to assert ownership over their work online, and to seek remuneration or other conditions on mutually agreed terms.

Shadow rapporteurs take stand against Parliament's handling of copyright directive

Shadow rapporteurs on the controversial copyright directive are frustrated that the European Parliament does not have a unified position on disputed Articles 11 and 13, with one MEP telling EURACTIV that Parliament has been conducting institutional negotiations without a text fully agreed on by shadows.

Granting news publishers the legal means to assert their copyright in the digital age should surely not be a controversial step. But, somehow, the companies who have built their business models on the back of our and others’ valuable content have made people believe that the internet itself will fail if news publishers are in a position to seek payment for their work.

Google has made no secret of their opposition to a neighbouring right for press publishers, but blatant threats to refuse to link to publishers’ content if the law comes to pass is a prime example of flagrant abuse of dominant position.

The mere possibility that Google may have to pay for their current business practices – a business model which is in fact based on monetising through advertising content produced by other players in the ecosystem – has them threatening to close Google News, and making wild assertions about the impact this will have on the internet ecosystem and the internet consumer.

Our governments should be appalled by this, not supportive of a legal approach that would entrench this dominance and abuse.

Giving his judgement on the German neighbouring right last month, the Advocate General said: “A free and vibrant press is part of the lifeblood of democracy, which is the very foundation stone of the EU and its member states. It is quite unrealistic to expect high quality and diverse journalism which adheres to the highest standards of media ethics and respect for the truth unless newspapers and other media outlets enjoy a sustainable income stream.

It would be foolish and naïve not to recognise that the traditional commercial model of newspapers right throughout the EU – sales and advertising – has been undermined within the last twenty years by online reading of newspapers by consumers. This practice has in turn been facilitated by the advent of powerful search engines such as that operated by Google.”

Without a workable Publisher’s Right that covers the commercial re-use of all content without any Big Tech-promoting loopholes, revenue from news publishers’ content will continue to be syphoned off by companies large and small that routinely re-use and monetise our content without permission or remuneration and there’s not much we can do about it.

Member states and MEPs should support European Press Publishers, and do the right thing by granting a clear, enforceable means of protecting our investment in professional content, thereby upholding a free and independent press and supporting the future of professional journalism.

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