As we approach the final two negotiating meetings of the year on the Publisher’s Right (including one this evening, Monday, 3 December), Google has ramped up its lobbying of both publishers and Member States, to render the publisher’s right unenforceable. They’ve failed to kill it off completely, so now they seek to empty the right of any value. How?
Google is apparently asking publishers and Member States for 5 “guarantees” to protect their business model. They are demanding that:
- the right is waivable;
- it includes an originality test;
- it excludes hyperlinks;
- applies only to aggregators (i.e. not search!) and
- allows for ‘free’ licences.
Taking these “guarantees” one by one:
1/ the right is already waivable. It is an exclusive right which allows publishers to authorise or prohibit the uses of their press publications, leaving the parties concerned free to negotiate the terms of use. Of course publishers would like to be paid for those uses but there is nothing in the law to suggest this right is either unwaivable or that payment is mandatory.
2/ Google knows that the inclusion of an originality test will kill the right from the get go. Why? Because it’s impossible for an algorithm to assess whether an extract of a press-publication is the expression of the intellectual creation of its author or not, and takes no account of the sheer scale of the systematic reuse of publishers’ content for profit.
3/ we agree. Hyperlinks were excluded in the original proposal, the EP text (accompanied by individual words) and the Council mandate.
4/ needs no explanation. Of course they don’t want the right to apply to search. By limiting it to aggregators they are risking only Google News which as many of you have said is not the referral engine it once was.
5/ it’s up to publishers with an exclusive right to ask for payment or not, but to enshrine licences ‘for free’ in law would be to give Google the upper handbefore any negotiation begins.
When it comes to the originality test, it is incompatible with a neighbouring right which is, after all, designed to protect the substantial investment in the production of press content (not the articles individually) and is incompatible with the way in which content is systematically scraped and reused at massive scale. Google is trying to reverse these advances in the political process as they know this test will impede licensing.
In spite of a staggeringly well-funded campaign of disinformation and threats in order to stop its adoption in the European Parliament, Rapporteur Axel Voss delivered a majority vote in favour of a clear publisher’s right, without an originality test. The Commission’s proposal does not contain one either as no other neighbouring right is subject to one.
We are asking governments not to give in to Google’s “guarantees” which would destroy the chance to achieve a clear, enforceable means of protecting investment in professional content.
With the next trilogue meeting to discuss the EU copyright reform scheduled for this evening, Angela Mills Wade, Executive Director of the European Publishers Council (EPC) issued this warning on the controversial Article 11:
“It is important to remember that a neighbouring right is designed to protect the substantial investment in the production of press content – journalistic content which bears editorial responsibilities and legal liability, and that is crucial to our democracy. The Publisher’s neighbouring Right (Article 11) has been highly-contested from the outset by #Google who has made no secret of their opposition, characterising the right, wrongly, as a #linktax and putting their muscle behind campaigns fronted by others to crush it. In spite of a staggeringly well-funded campaign of disinformation and threats designed to stop its adoption in the European Parliament, Rapporteur @AxelVoss delivered a majority vote in favour of a clear Publisher’s Right.
We are calling on Member States and MEPs not to let #Google win the day. They are asking for guarantees they don’t even need. We call on governments and MEPs to do the right thing and support a clear, enforceable means of protecting investment in professional content, thereby upholding a free and independent press and supporting the future of professional journalism.”
For further information, please contact Angela Mills Wade on Tel: +44 7785327878 or Heidi Lambert on Tel: +44 7932141291
Twitter: @epc_press
Note to Editors: Update on trilogue discussions
For those of you following the negotiations on the Publisher’s Right (article 11), the update on developments in the trilogue discussions below, along with our current concerns, may be useful. Please do not hesitate to get in touch with us for any further information.
The EPC insists that the current reform has to address the existing imbalance of bargaining power between the press and platforms. The digital ecosystem needs to work fairly for everyone: the content creators, distributors and consumers, not just the few powerful and dominant internet giants.
EPC Executive Director Angela Mills Wade explains:
“We are calling on Member States to approve a clear and enforceable Publisher’s Right. The text from the European Parliament gives publishers the clarity they need to promote investment in professional journalism and to secure the future of a free and independent press. Some of the discussions in Trilogue are extremely concerning and there is a considerable risk that the Council will undermine the Publisher’s Right to such an extent that it will not only be unenforceable, but the very predatory practices the Right seeks to stop, will be legitimised.”
Summary issues:
The following issues of major concern that totally undermine the Publisher’s Right are:
- The Council’s mandate that calls for short excerpts to be exempt
The Council has asked the Commission to submit new proposals to clarify that hyperlinks are excluded from the scope of application. The Parliament’s approach excludes hyperlinks “which are accompanied by individual words” – an acceptable compromise between the Commission’s proposal and the Council text – and makes it clear that press publishers have a right vis-à-vis the commercial reuse of any part of the press publication including short extracts which is what consumers seek when searching online, showing where the value is. Excluding so-called “insubstantial parts” would have the unwanted effect of rendering the right unenforceable and would in fact result in the legal entrenchment and thereby the legitimisation of the very predatory commercial activities we wish to license.
- Creativity threshold:
Insisting on a creativity threshold on the monetisation of any part of a press publication would render the Publisher’s Right totally unenforceable.
The burden of proof would lie with the publisher to prove that the extract used by the search engine, aggregator or online service covers a part of the article that itself is “original”. It would be impossible for an algorithm to assess whether an extract of a press-publication is the expression of the intellectual creation of its author or not and takes no account of the systematic scraping and mass use of any part of a press publication. The originality test would not work in the fully automated environment of the digital economy, because it would require a manual legal assessment of each and every excerpt used from a press publication.
- Reservation of rights for Text and Data Mining (Art. 3a and Recital 13a)
We are very alarmed by the following addition to the compromise on Text and Data Mining. In Recital 13a the following sentence was added:
Recital 13a [row 28]:
“In the case of content that has been made publicly available online, it should only be considered appropriate to reserve the rights by the use of machine readable metadata.”
This means, that websites that are publicly available online, such as the websites of press publishers, may only object to TDM in a machine-readable format. Limiting the reservation of rights to machine-readable formats means that Google and similar services will be able make the findability and accessibility of our services (e.g. in Google search) dependent on whether or not we agree to our content being accessed and mined. So far, the only available tool is the “Robots Exclusion Protocol” (REP), also known as “robots.txt”. When press publishers use robots.txt their content cannot be found in search engines anymore, which is an unacceptable solution.
The TDM exception for commercial purposes would render the Publisher’s Right null and void allowing Google to reproduce and use press publishers’ content and generate their own snippets/short summaries of publishers’ texts without infringing the neighbouring right.
- Proposed definition of a press publication could exclude all special interest publications
An amendment which stipulates that a press publication shall have “the purpose of providing the general public with information related to news or other topics” and specifies that the right will apply to EU-based news sources only is of concern. This requirement (“providing the general public”) in the definition of a press publication, could lead to the exclusion of all those press titles which are not addressed to a “general public”, such as special interest magazines or B2B magazines.
Next steps:
There are now two more inter-institutional meetings planned, December 3 and December 13.
