Limiting the snippet levy to commercial use is tangling up an already muddy issue

elsevier
Ancillary copyright: still bad policy
Licentie

The Rapporteur Marc Joulaud of the Committee on Culture and Education (CULT) recognises the problem with proposed article 11 regarding protection of press publications concerning digital uses – it can threaten hyperlinking and various ways users use content online. In Communia’s opinion the Commission’s proposal to introduce a right for press publishers is poorly aligned to the objective of modernising the EU copyright framework and adapting it to the challenges of a fast-evolving digital environment. In the light of the above we believe that the only solution is to remove the whole idea from the directive. This is not the approach shared by CULT – instead 3 problematic changes were proposed:

  1. the limitation of the ancillary copyright is only for commercial purposes,
  2. the confusing and vague attempt to carve out snippets, and
  3. the term of protection is to be 3 years, which is still too long for news.

Muddy area’s still unclear

Instead of solving the problem, the Rapporteur Marc Joulaud made everything even more tangled by adding to the proposed scheme the requirement that press publication must be used ‘for commercial purposes’. As we raised before in freedom of panorama discussion, implementing a distinction between commercial and non-commercial use, namely two very vague terms, is never a good idea. It will muddy any legal certainty for citizens engaged in sharing press publications.

What does “commercial use” mean in practice? Is it related only to payments for direct use of a snippet? Would snippets that appear on a website that also contains online advertising automatically considered to be a commercial use? Would Wikipedia be considered a commercial project because it also asks for individual donations on its site? Could a user publish a link to press publication on a social media platform that capitalizes on users’ noncommercial activities? These questions are left unanswered and create even more legal uncertainty than initial bad proposal by the Commission.

The ancillary copyright is a very controversial issue since it threatens hyperlinks and the way internet operates. The draft opinion proposes adding to the recital 34 the following explanation:

“Where content is automatically generated by an act of hyperlinking related to a press publication, such content should be covered by the protection granted to press publications under this Directive. That protection should not apply to cases where the content automatically generated was conceived or controlled by the rightsholder itself, where it is a quotation of the press publication concerned, and where it does not reflect disproportionately the intellectual creation of the author of the press publication concerned”

With the terms as vague as ‘does not reflect disproportionately’ nobody can be certain when the new right will be applied.

High price for old news

The draft opinion suggests also that the term of protection should be shorter – 3 years instead of 20. We still cannot see any reasonable explanation behind such a long term of protection. The length of the press publishers’ right, even if 3 years from publication, is far longer than the reasonable commercial exploitability of almost all press publications. Most online press publications are attractive to their viewers for a relatively short period of time—possibly only days, weeks or months—not years. Moreover, publishers would be still granted the right retroactively, which would negatively affect existing websites and news aggregators.

Breaking the internet while missing the point

The Rapporteur did not consider any new ways of addressing the need of press publishers to have better mechanisms to effectively bring enforcement actions against parties who engage in wholesale copying or scraping of their published content (we acknowledge a need to improve their ability to do so). In our opinion this problem can be addressed by observing a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them. One way to do this would be by extending Art. 5 of the Enforcement Directive (2004/48/EC) to also apply to press publishers with regard to their licensed works or other subject matter.