The Horrible EU Copyright Idea You Aren’t Hearing About

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If you follow global tech policy, you probably know that the European Union is in the process of adopting a Copyright Directive to update its copyright framework. The Copyright Directive is infamous on this side of the Atlantic because of the mandate for automated web filters contained in Article 13 of the same. Elsewhere, we’ve written about the harmful effects for free expression that Article 13 would have.

However, less attention has been paid to the equally harmful Article 11 of the Copyright Directive. Article 11 would create a “link tax,” designed with the idea of making platforms such as Google News or Facebook pay for linking to news sites where the links or snippets to news sites include more than a couple of words of the original article’s body or title. In essence, Article 11 would mandate news organizations charge platforms that link to their content for the privilege of doing so.

Please note that Public Knowledge is in favor of findings mechanisms to ensure that journalists get fairly compensated for doing their job. As you can see in a previous post, one of the ideas we support is encouraging tech platforms to hire services run and curated by professional journalists to help users navigate the abundance of online information and distinguish trustworthy from untrustworthy content.

However, Article 11 is a simplistic solution to a complex problem. Moreover, it’s a failed simplistic solution to a complex problem. Here are some reasons why.

First, it’s a threat to political commentary and media criticism. If Article 11 is adopted, users might find it impossible to comment on the news on their favorite social media platform. So far, we know that the European Parliament would like to allow “legitimate private non-commercial use of press publications by individual users,” presumably to enable users to share news on social media platforms. Yet, the position of the European Council (think of it as the Senate of the European Union, where each EU member state is represented by its national government) on this regard and the practical meaning of that safeguard are still unclear.

If a social media platform creates a snippet of a website when a user pastes a link before sharing, would that be a non-commercial use of a press publication? Is publishing on social media a private non-commercial use of a press publication at all? Would the answer to the previous question be the same if the user would post a link on a network that is by-default open to the public, such as Twitter, as opposed to a semi-private network like Facebook? There are simply too many possible answers to those questions.

Second, it will make it harder for users to navigate the abundance of online information. If a news organization doesn’t license to a platform, or a platform decides not to license from a certain news organization, then users might find that the information they see in their social media stream or news aggregator doesn’t come from well-known trustworthy sources, but from unknown sites. If we want to fight so-called “fake news,” we should not make it harder for consumers to share trustworthy information.

Third, the link tax is a tried and failed approach. Spain and Germany have both enacted legislation reminiscent of Article 11. In Spain, compulsory licensing was required. After enacting the legislation despite widespread criticism, the Spanish online news ecosystem quickly crumbled. Almost immediately, Google shut down Google News in Spain. As a consequence, a study commissioned by the Spanish Association of Publishers of Periodicals found that after the introduction of the link tax in Spain, publishers saw traffic fall by more than 6 percent, and by 14 percent for smaller publications.

In Germany, the licensing was not compulsory. As a result, press publishers were able to pick and choose who they would issue exemptions to. Sold by proponents as a de facto tax on tech titans, this legislation was anything but; unsurprisingly, publishers gave Google a free pass, literally citing the company’s “overwhelming market power.” On the other hand, small to mid-level entrepreneurial businesses were stuck footing the bill.

The news industry argues that this time is different because the “link tax” would apply at the European Union level, and services like Google News would never stop providing services in the European market as a whole. Google begs to differ.

Help Journalists, Not the News Industry

In sum, Article 11’s “link tax” is a really bad idea. First, it will make it harder for users to share and find trustworthy sources of information. Second, it would likely do nothing to help journalists or news organizations. Internet platforms have an obligation to help users navigate information abundance. But a better solution is to encourage internet platforms to adopt and sustain projects such as NewsGuard. Public Knowledge has recommended ways that policy can help the news industry enhance its profitability and restore trust by embracing social media platforms, rather than treating them as an enemy. Article 11 tries to turn back time and preserve an existing business model. Instead of trying to lock in the past, policymakers need to focus on how to help journalism embrace the future.

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