The European Union is updating copyright law for the digital age, and one of the most controversial measures being considered is a so-called neighbouring right for press publishers. Unlike copyright, which is based on the intellectual creation of authors – including journalists – the proposed neighbouring right seeks to protect the financial investments of news publishers. It is the subject of article 11 of the proposed directive on copyright in the digital single market, which was approved by the Legal Affairs Committee of the European Parliament on June 20. The text of article 11 was narrowly adopted – 13 votes to 12 – a clear indication that this measure merits more sustained discussion. At a moment when the European Union is about to create a new intellectual property right, it is important to ask why such a right is necessary and how it will affect the production and circulation of news online.
High-quality journalism has always been expensive to produce and difficult to control once it is published. But in the digital age, the problem has been compounded by the massive losses in subscription and advertising revenue that have led many news organisations to close or dramatically reduce their staff at a time when the need for professional journalists is greater than ever. Proponents of article 11 claim it will give publishers a stronger legal basis to negotiate licensing deals with online platforms in order to stop the “pillaging” of their articles. The law is just and necessary, they say, because it will finally require search engines, aggregators, and social media platforms to pay for the content they use.
The French context
In France, the government supports the creation of a neighbouring right for publishers and news agencies. The groundwork is already being laid to transpose article 11 into French law, and the general idea has fairly broad political support judging from recent discussions in the National Assembly. Within the European Parliament’s Legal Affairs Committee, the French MEP Jean-Marie Cavada, an experienced broadcast journalist and former head of Radio France, has been one of the strongest proponents of article 11. The trade associations representing major French news publishers also back article 11, and discussion in the press has been rather one-sided.
In fact, media coverage has tended to avoid any analysis of the benefits and risks of the proposed measure. It has also ignored the independent academic research suggesting that article 11 will not work. Instead, the issue is generally framed in political and moral terms as a means to promote media pluralism and to force the big American tech firms to do the right thing in terms of copyright, if not in terms of paying more taxes in EU countries.
In the French daily Libération, Laurent Joffrin characterised opponents of article 11 as the “useful idiots” of unfettered capitalism, a banner that he applies to both “libertarians of the web” and members of the Green Party. According to Joffrin, the latter are wrong to worry that the new right could restrict access to information. While acknowledging that search engines and social media platforms send traffic to publishers’ websites, Joffrin and other supporters of article 11 insist that Internet companies earn their profits from content produced by the quality press without ever paying a cent. Jean-Marie Cavada expressed a similar idea, announcing on Twitter that “creators finally have the right to be protected in the digital jungle.”
Another layer of rights
Such statements are misleading for several reasons. First, news publishers already enjoy a significant level of protection against the unauthorised use of their content online. News articles and photographs are protected by copyright from the moment of creation. In the case of salaried journalists, these rights tend to be automatically transferred to publishers through a combination of employment contracts and work-for-hire clauses in the copyright laws of many, though not all, European countries. In France, a 2009 law gave publishers stronger rights over the work of their staff. In exchange for their salaries, journalists automatically cede online publication rights to their employers. In addition to copyright, since 1998 the EU has a sui generis database right. Publishers can use this to protect their investments in collecting, verifying, or presenting information – including material that is not eligible for copyright protection – against unauthorised extraction from their websites, for example.
So it is wrong to describe the digital world as a lawless zone, and it is evident that proponents of article 11 are asking for a right that would be stronger and broader than those that already exist. Their ultimate goal is to force Internet platforms to pay to display short snippets of text and even headlines of news stories. Publishers have realised that using copyright to achieve this is difficult because in the EU a work must show evidence of the intellectual creation of an author to be protected, and some excerpts would not reach this threshold. In addition, it is not a violation of copyright to reproduce an “insubstantial part” of a work, though deciding whether a given extract is “substantial” is up to the courts. The Berne Convention also has a mandatory exception to copyright that allows individuals to make quotations from protected works, including extracts in the form of press summaries, an important safeguard that helps to promote a vibrant press. The creation of a neighbouring right would enable publishers to sidestep the established rules of copyright. The report accompanying a recent legislative proposal in France makes this clear: it argues that a neighbouring right is necessary because using copyright to negotiate licensing deals would require publishers to prove that each snippet being copied or communicated to the public was a substantial part of the work reflecting an author’s intellectual creation.
The question of what exactly would be protected by article 11 of the EU directive is a crucial one. There are now in fact two versions: that approved by the Council of the European Union and the one that was just narrowly approved by the Legal Affairs Committee. The two diverge when it comes to what will be protected. The Council text states that the new right will not apply to “insubstantial parts” of press publications, but then leaves it to each member state to apply its own rules in determining whether a given extract is substantial. The fact that each member state would effectively decide the threshold for protection contradicts the goal of the directive – to harmonise digital copyright across the European Union. It would lead to a situation in which online platforms had to adjust their practices to the different rules being applied in every country where they operate. The Parliament text – the one just approved by the Legal Affairs Committee – contains no minimum threshold at all. Search engines, aggregators, and online platforms of all sorts would be required to obtain a license to display any of the text of a news story, including its headline.
Evolving business models
A second reason that most pleas for the new right are misleading is that they advance the claim that Google and Facebook never pay for anything. Although Google does not pay to display snippets in the context of Internet searches, most publishers choose to be indexed by Google because it increases traffic to their sites. Both Google and Facebook have developed advertising products and mobile news applications that many publishers use to distribute and monetise their content. Both firms have tended to argue that the future of sustainable journalism depends not on copyright and licensing but rather on partnerships and joint ventures.
In 2013, when France began to move forward with a law to require Google to pay each time it displayed press content, the firm’s chief executive Eric Schmidt flew to Paris and met personally with President François Hollande. Unsurprisingly, Google used its resources to impose a deal. Instead of paying a so-called link tax, Google created a 60 million euro fund to support innovative online journalism projects in France. The scheme has since evolved into a broader Europe-wide Digital News Innovation Fund.
Another type of partnership relates to the problem of “fake news,” with Facebook paying publishers, including Le Monde and Libération, to verify reports that Facebook’s algorithms identify as suspicious. The news organisations are furnished with lists of such reports and decide which ones to investigate and report back to the public. Libération acknowledged that in 2017 the amount it received from Facebook under this arrangement enabled it to pay for two additional staff members. Of course, there is a difference between voluntary partnerships and unauthorised uses of content, but the arrangement just described offers additional revenue in exchange for a service that is of value to the public. In general, debates on article 11 could benefit from more nuanced discussion of the evolving business models of publishers.
An idea that has already failed
A third reason that public discussion of article 11 has been disappointingly limited so far is that it has involved too little inquiry into whether the proposed measure will actually provide significant revenue to publishers. Critics of article 11 have pointed to the examples of Germany and Spain – two countries where similar legislation has been passed – to argue that the proposed EU directive is unlikely to lead to the outcome desired by publishers. In 2013 Germany adopted a law giving publishers of newspapers and magazines the exclusive right to make their works available to the public for commercial purposes for one year. But Google effectively forced publishers to waive their rights by threatening to stop indexing their publications. Most publishers felt they had no choice but to go along with this option since Google generates substantial traffic for their sites.
Legislation passed in Spain in 2014 sought to avoid this problem by not allowing publishers to waive their rights. Rather than instituting a new neighbouring right, Spain modified the quotation exception in its copyright law so that quotations from news websites were subject to mandatory compensation by aggregators and search engines. Google’s response to this law was swift and brutal: it closed Google News in Spain. Spanish publishers reported a loss in traffic, and smaller and lesser known sites were particularly affected.
These examples are not encouraging, and although proponents maintain that the EU directive will work better, they have not provided much evidence to support their claims that it will lead to significant revenue gains for publishers, let alone help to combat “fake news”. Several independent academic studies, including a report commissioned by the Legal Affairs Committee, have cautioned against the creation of a right along the lines of article 11. (The CREATe Copyright Centre at the University of Glasgow has a convenient portal where independent research and the public positions of MEPs can be accessed). The academic consensus against article 11 is broad; more than 200 researchers in law and journalism studies have signed an open letter against it. I am among those who signed because I am convinced that the proposed measure will not solve the underlying financial difficulties faced by publishers; meanwhile, it will change the way news is disseminated in ways that we cannot predict. How will Google and Facebook respond? How will the need to secure additional licenses affect smaller independent platforms that lack the resources of these giant firms? Will it actually foster media pluralism? Among news publishers, who will be the winners and the losers?
The public interest
Finally, article 11 has the potential to restrict access to information. Consider all the ways that a search engine facilitates research. In preparing this article, I wanted to see what different French newspapers were saying about article 11. Search engines helped me to do this by displaying headlines and excerpts containing the words I was looking for along with links to the articles. More and more people find the news they read through search engines and social media platforms (the Reuters Institute Digital News Report contains the latest survey data for 37 countries). Proponents of article 11 know this, but they seem to be assuming that no harm will be done as a result of the new neighbouring right: they think search engines and platforms will continue to function as before, with the only difference being that publishers will be better paid. That seems naive given the complexity of the media ecosystem and the recent experiences in Germany and Spain. Numerous factors will determine how article 11 affects the way people access and share news. We better be sure that we have thought through all of these factors before we create a new intellectual property right.
Once a new property right is created it will be difficult if not impossible to roll it back. The burden should be on the proponents of article 11 to show that it will actually help foster quality journalism and media pluralism, and that it won’t hinder free expression or innovation online.