The Future of an EU-Wide Ancillary Copyright for Press Publishers Remains Uncertain

July 8, 2015

Brussels, BELGIUM — Discussions around a possible ‘snippet levy’ or ‘news aggregation tax’ targeting online services like search engines and news aggregators have slowly but surely reached Brussels. In the last month alone we witnessed two considerable developments. First, the legal committee of the European Parliament decided the vote down an amendment to MEP Reda’s copyright report which would have called on the European Commission to consider the introduction of an ancillary copyright for press publishers. Second, the Austrian government came close to introducing an ancillary copyright provision, to some extent mirroring Germany’s Leistungsschutzrecht, into its copyright law review. Only after pressure exerted by a variety of stakeholders did Austria in the end decide to exclude that provision and to notify it to the European Commission to allow for legal scrutiny. (View CCIA’s letter to Austrian authorities here).

These developments are significant. Particularly Austria’s planned notification of the law marks the ancillary copyright’s firm arrival on Brussels territory. For the very first time, the Commission will have the opportunity to scrutinize the law for its compatibility with EU law — particularly in the areas of EU copyright law and internal market law. As regards the latter, a proper analysis is crucial because national ancillary copyright laws clearly deter online companies from providing their services across borders. In theory, it could even incentivize companies to ‘geo-block’ access to their services in countries which require payment for displaying hyperlinks and snippets. Interestingly, one of the Commission’s political priorities in the recently announced Digital Single Market (DSM) Strategy is to end any form of geo-blocking.

This analysis will also play a role in the upcoming copyright reform. While it is not clear whether an EU-wide ancillary copyright for press publishers is envisioned, Commissioner Oettinger has frequently stated that it certainly remains an option. Certain news publishers and collecting societies are openly pushing for it. This causes a situation of uncertainty and potentially contradictions. During the EU’s probably most extensive public consultation on copyright a year ago there was not a single mention of an ancillary copyright. It does also not appear in the recently announced DSM Strategy. Should the Commission not be able to close the debate on this matter because the highest political level has not made up its mind yet, it must at a very least guarantee an open and inclusive debate.

The German and Spanish ancillary copyrights are good examples of legislation which lacked a proper evidence base and which ignored the heavy criticism that came from a variety of constituencies. The result is poorly working legislation, which causes considerable damage to the market — without clear benefits. In Germany, large and small publishers decided to not enforce their rights (because they disagree with the law) while in Spain small and large online aggregators simply shut down. There are far more negative consequences. If the Commission seriously believes that there is a problem which ancillary copyright-type legislation could solve, a proper debate, consultation and evidence-gathering will be strictly necessary. Today, the laws of two countries fragment a EU-wide digital market — let’s hope that the EU’s own principles of better regulation will prevent damage to the whole DSM rationale.

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