Ever since Germany’s Günther Oettinger became the new EU commissioner for the digital economy, with copyright reform as part of his brief, he has been making noises about getting Google to pay some kind of “levy” for using European “intellectual works.”
I and others have been interpreting this as a desire on Oettinger’s part to extend the so-called ancillary copyright concept – where news aggregators such as [company]Google[/company] have to pay royalties to publishers for using snippets of their text in search results – across Europe. Google’s not the only company that’s affected but, given that it has more than 90 percent market share in European search, ancillary copyright is often called the “Google tax” in the EU.
From events on Wednesday, it seemed clearer than ever before that this was what the commissioner was after. But according to subsequent pronouncements from Oettinger and sources in the Commission, he doesn’t want to extend rules that don’t work.
Oettinger met with members of the European Parliament’s copyright working group to talk with parliamentarians (MEPs) about his plans for a new EU-wide copyright proposal, scheduled for 2015. And Julia Reda, the Pirate Party’s sole MEP, seemed to come away from the meeting in an incandescent mood.
“At today’s debut meeting of the European Parliament’s copyright working group, digital Commissioner Günther Oettinger expressed his wish for an EU-wide ancillary copyright law for press publishers, citing it as an example area of copyright where action was required at an EU level,” she said in a statement.
Reda pointed out that the two existing examples of ancillary copyright being rolled out nationally, in Germany and in Spain, had both turned out badly. In Germany, local publishers were forced to grant Google free use of their text snippets and thumbnails after the company delisted them from Google News and traffic to their websites predictably plummeted. In Spain, the severity of the local ancillary copyright law has created an even worse situation – the publishers, who lobbied for the law, can’t grant Google free access even if they want to, and now the company has axed Google News in Spain altogether, again hammering their traffic.
“By pursuing an EU-wide ancillary copyright law for press publishers, Oettinger is ignoring the recent spectacular failure of similar laws in Germany and Spain,” Reda said in her statement. “They did not fail because they were implemented at the wrong level, but because the idea itself is wrong-headed.”
However, Oettinger said on Twitter that there would be no extension of national rules across the EU:
One source within the Commission told me that Oettinger only wants new EU copyright legislation to “cover those areas where national legislation has no impact,” and suggested he had mentioned the experiences of Germany and Spain “as negative examples.” Meanwhile, another source said the Commission “will monitor the implementation of the law to see whether it delivers the objectives set by the Spanish government.”
No sweet spot
It is not clear to me at all that this means Oettinger doesn’t want an EU-wide ancillary copyright law. It could be that he does want such a law, but he doesn’t want it to be as ham-fistedly implemented as it was in Germany and Spain. If that is the case, I struggle to see where the sweet spot between those implementations might lie. The German implementation was too ineffective to give the hard-lobbying publishers what they wanted — Google successfully called their bluff — and the Spanish implementation was so idiotically heavy-handed that it amounted to a publishers’ suicide pact.
The problem is, as Reda said in her statement, that “legislative restrictions on free linking do not lead to better compensation for journalism, but to increased barriers to access for the public and losses for publishers and authors.” Companies such as Google – and European aggregators too, let us not forget – are under no obligation to keep linking to sources that lose them money. What’s more, those links benefit publishers by giving them traffic that they can convert into advertising revenue. It’s not like they lose out in any way from being linked to with snippets of their text.
To my mind, there are two underlying motivations behind the big publishers using their political leverage to push for ancillary copyright laws. The first is that they want money for nothing. The second is that the internet erodes their power. Once, they had loyal readers who bought their paper each day, but now aggregators such as Google News have made their articles options on a long and diverse menu.
Many casual readers are now driven to stories because of their relevance, not because they appear under a certain brand, and this new world gives newer, smaller publications a chance to shine. That’s awful for powerful press barons, but great for readers, great for media diversity, and consequently great for democracy.
Let’s hope that Oettinger is taking away the right lesson from the German and Spanish debacles as he formulates his copyright proposals (and sorry to paraphrase Reda again here, but she’s right on this): European citizens and online businesses benefit from barriers coming down, not barriers going up.