Last week the Culture and Education Committee (CULT) and the Committee on Industry, Research and Energy (ITRE) voted on their final opinions on the Commission’s Directive on Copyright in the Digital Single Market. As our friends at EDRi have highlighted, both committees voted for measures that would make the Commission’s already bad proposal even worse. The ITRE and CULT (not published yet) opinions are particularly bad regarding the question of new rights for publishers.
The introduction of a new right for press publishers (aka the “link tax”) to extract fees from search engines for incorporating short snippets of – or even linking to – their content in article 11 is one of the most controversial issues of the proposed directive. Adopting this type of ancillary right at the EU level would have a strong negative impact on all stakeholders, including publishers, authors, journalists, researchers, online service providers, and readers.
We know that previous experiments with ancillary copyright in Spain and Germany have failed, a fact that was already known to the Commission because it is acknowledged in its impact assessment leading up to the release of the original proposal. We’ve argued that a new right for press publishers would undermine the intention of authors who wish to share without additional strings attached, especially creators that use Creative Commons licenses to share their works. We urged that the provision be removed from the directive.
In recent months there seemed to be an increasing focus on neutralizing this contentious provision. MEPs such as IMCO Rapporteur Catherine Stihler and former Legal Affairs Committee Rapporteur Therese Comodini had gathered support for deleting the press publishers right. Despite of this, last month the new right was retained in the opinion of the IMCO Committee. The opinion removes the clause of the Commission’s proposal which would retroactively apply the publishers right to anything published in the last twenty years.
Making a bad proposal even worse
In the votes last week in the CULT and ITRE committees, the press publishers right was also carried through – and even expanded. Both of the recent opinions remove the restriction that the right applies to digital uses only, meaning that if adopted it would cover all uses – both digital and in print. Even worse, ITRE – the committee responsible for policy relating to the promotion of research – voted to extend the press publishers right to cover scientific publications. Both additions contravene the Commission’s original reasoning for why the proposal aligns with the principle of proportionality. In the directive, the Commission states, “The proposal is proportionate as it only covers press publications and digital uses.” But with the proposed changes to the press publishers right, both the CULT and ITRE opinions expand the right from “digital uses” to all uses, and the ITRE opinion expands “press publications” to include academic publications. It’s unclear how these changes can be reconciled with both the letter and spirit of the proportionality rule.
Academic publishing: the original value gap
As we, and dozens of others, have pointed out before providing protection to academic publications (specifically excluded in the Commission’s original proposal) would mean that users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications. And it could affect how academic publications are discovered online within search engines like Google Scholar, or other types of aggregators related to scholarly outputs.
The inclusion of academic publishers in the scope of the press publishers right is not coincidence but the result of effective lobbying from academic publishers. On the day the Commission released its Directive on Copyright in the Digital Single Market, the International Association of STM Publishers released a statement urging for the extension of the new publishers right to scientific publications. Given the fact that academic publishing is already one of the most profitable businesses even though it is almost completely based on public inputs the fact that the European Parliament seems to be willing to grant these publishers even more rights seems outright scandalous.
It is not too late to stop the publishers right
It seems that by introduction an ill-considered right for press publishers as part of the directive that (at least in title) has the objective of modernizing the EU copyright framework to create a digital single market, the Commission has unleashed a force that will be very difficult to control. What is on the table by now is not proportionate to the original problem (press publishers facing difficulties in developing digital business models). A press publishers right on steroids that includes academic publishers will undermine open access publishing which has been a core element of public policies to keep higher education and research open and affordable. It is now up to the members of the JURI Committee, and member states (who have invested heavily in open access policies and ultimately pay the bills for access to academic publications) to call a halt to the publishers right.