US Stakeholders Concerned About European Commission's Copyright Revamp Path
A European Commission-produced draft impact assessment for its planned copyright law revamp proposal is prompting some U.S.-based digital rights and tech sector stakeholders to renew their concerns about the proposal’s scope, before its planned release in late September. The draft, leaked by EU watchdog group Statewatch, discusses possible impacts of multiple copyright issues. U.S. officials emphasized their concerns about a possible pan-EU ancillary copyright aimed at allowing publishers to claim royalties from news aggregation services like Google News. Officials told us they also believe the document indicates the EC won’t seek to fully end European “geoblocking” policies that make cross-border portability of digital content in the EU more difficult. In its original copyright revamp proposal released in December (see 1512110018), the EC proposed both an end to geoblocking and the ancillary copyright, which some critics labeled a “snippet tax.”
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The EC believes its proposed ancillary copyright “would have a very positive impact in the number and quality of news publications” by “improving the sustainability of the news publishing sector.” The EU “would benefit from media pluralism and enhanced participation in the democratic debate,” the EC said in the draft report. The EC said its proposed ancillary copyright mirrors elements of similar rights enacted in Germany and Spain that sought to allow news publishers to claim royalties from news aggregators. Germany didn’t make its ancillary right mandatory, but Spain did. “Neither of these two recent intellectual property rights solutions has so far proved effective in addressing problems of press publishers,” the EC said. “Above all, they have not resulted in increased revenue for the press publishers from big online service providers. This incomplete protection leads to legal uncertainty regarding the recovery of publishing content via B2B licensing agreements and makes enforcement difficult and sometimes inefficient.”
The proposed ancillary right as described in the EC assessment draft “is inconsistent with” U.S. perspectives on copyright, said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers in an interview. EC policymakers “claim this isn’t a snippet tax or a link tax, but if you’re telling someone that they have to pay to link to news, that sounds like a link tax to me,” he said. Germany’s ancillary right “failed to change how the marketplace operated,” and Spain’s right resulted in Google shutting down Google News’ presence in that country, Schruers said. An EC spokesman emailed that the ancillary copyright proposal “is absolutely not about an EU levy on search engines. Overall our objective is to ensure that Europeans have access a wide and diverse legal offer of content, while ensuring that other offers and other rights holders are better and more fairly protected.”
The proposed EU-wide ancillary right would end up affecting any U.S.-based news aggregator’s ability to draw on content produced in EU-member states, Electronic Frontier Foundation Senior Global Policy Analyst Jeremy Malcolm told us. Center for Democracy & Technology Director-European Affairs Jens-Henrik Jeppsen told us he's also concerned with the assessment’s ancillary copyright language. He noted previous CDT objections to the effect introducing a pan-EU right would have on freedom of expression and on smaller journalism and publishing firms.
The EC indicated it’s now backing a “country of origin” rule on geoblocking policies instead of a pan-EU ban on such policies. The rule would say “as concerns the licensing of rights for certain online transmissions by broadcasting organisations, the copyright relevant act takes place solely in the member state where the broadcasting organisation is established,” the EC said. “To provide certain services in the EU, rights would only need to be cleared for the 'country of origin' of the broadcasting organisation (and not for the countries of reception).”
Malcolm said the country of origin rule proposal appears to directly conflict with the goals of the EU’s digital single market strategy, which in part relies on an expectation that “content will be available uniformly across the EU,” which isn’t currently the case because of geoblocking policies. The EC’s draft assessment shows the commission is no longer willing to adequately address geoblocking because the EC “is too scared to make critical changes,” Malcolm said. He attributed the EC’s switch from its earlier willingness to more strongly address geoblocking to “pressure from the European film industry, which depends on” content being licensed on a nation-by-nation basis.
The document illustrates why U.S. stakeholders should be concerned, but the full implications of the proposal will remain “very amorphous” until the text of the EC’s directive proposal either leaks in draft form or is fully released, Schruers said. “I think you can view this as a very clear harbinger of what’s to come” from the EC “and I wouldn’t be surprised if the directive proposal tracks very closely” with what’s contained in the draft impact assessment, Malcolm said. It’s likely a draft of the full directive proposal will leak in the coming weeks, which may inform whether stakeholders’ concerns about the impact assessment have affected the EC’s internal work on the proposal, Schruers said. The revamp plan won’t be finalized until the European Parliament and other EU institutions finish negotiations, which will “hopefully inject more balance” into the mix, Malcolm said.