EU Commission's copyright proposals not fit for digital age
We need copyright laws that recognise the internet, writes Daniel Dalton.
Daniel Dalton | Photo credit: European Parliament audiovisual
Copyright reform has been at the heart of the European Commission's efforts under the digital single market reform programme since that vision was first launched. This year will see the release of the key copyright reform components.
The main proposals from the Commission, due to be published this autumn, are expected to include a long discussed (and debated) reform of ancillary copyright. The signs from the Commission so far have been mixed.
Last December, the proposal for portability of digital content was published to widespread support. This sensible and proportionate regulation will give consumers the legal right to access content from their country of residence while travelling abroad. Euro 2016 is a reminder of the unfairness of the current situation for consumers.
- Mathieu Moreuil: Will the digital single market work for European audiences?
- Catherine Stihler: EU copyright rules holding back cultural institutions
- Jean-Marie Cavada: Copyright reform must consider economics of territoriality
- Mark Lichtenhein: Copyright protection more important than ever in digital age
It is technically possible for a sports fan to watch their home coverage anywhere in the world with an internet connection, which is the default situation.
However, blocks are added by broadcasters to prevent open global access. They do this at the request of rights-holders, who understandably want to protect the value of their rights in the different markets they sell into.
They fear the creation of a single sports rights market significantly undermining the overall value of those rights. It would also harm content diversity and consumer choice.
The Commission, have, however, rightly recognised that a sports fan who has paid for content either through subscription or a licence fee, should be able to access that content when abroad. This is particularly important for sports that are wildly popular in some member states, like cricket or rugby, but are not available at all in many other EU countries.
The portability proposal is deliberately limited to protect national rights and content diversity, while recognising consumer rights.
Less positively, on 25 May the Commission released proposals to force on-demand video services such as Netflix and Amazon Prime to accept 20 per cent quotas for 'European content' on their platforms.
Leaving aside the ridiculousness of applying a quota to an on-demand service in the first place, research suggests Netflix and Amazon already meet or almost meet the quotas in a number of markets.
Then there's the difficulty of establishing exactly what is 'European content' in the 21st century, when global co-productions are the norm, rather than the exception. This proposal seems to be trying to apply an analogue solution to a digital world. This fails to understand the reality of the modern, on-demand audiovisual market in the 21st century.
Then there is the main meat of the Commission's vision of copyright reform, an expanded publisher ancillary right for online content. This has been dubbed a 'Google news tax', or more accurately a 'link tax'.
However, recently the Commission has talked about 'neighbouring rights'. The use of a term describing a pre-internet copyright tool is another indication that the Commission has not understood that copyright cannot work in the same way in the internet age.
So far, the Commission has consistently refused to rule in or out a link tax; the launches of Commission public consultations aimed at publishers in the last year are another sign of their intentions in this area.
Ultimately, I believe a link tax would be very bad news for all publishers, but particularly for smaller publishers that will find that this is not the way to address falling revenues from traditional print sales. For clarity, the idea is that news aggregators, including Google news, should pay publishers for the content on their search engine - the headlines and article snippets that are displayed.
However, this idea is flawed. Firstly, news aggregators deliver huge traffic to publishers' websites. Also, very few young people get their news from one source any more. A whole generation has grown up by picking and choosing the news they want to read from a variety of sites; news aggregators are the way the find out what content is available, before going on to buying access those articles that are behind paywalls.
Spain introduced strict copyright rules in January 2015, which made it impossible for individual publishers to waive their rights to remuneration.
The result was that Google shut down its news service in Spain and removed all Spanish publishers from its global news feeds, saying it could not afford the significant costs the law created for something that generated no advertising revenue.
European digital economy and society Commissioner Günther Oettinger has hinted at a preference for pan- European rules based on the Spanish model. This would be disastrous for European publishers, and especially smaller niche and local publishers who rely more heavily on the likes of Google news to deliver their traffic.
An official study by Spanish publishers released last summer showed that in the first six months the law had led to a 14 per cent fall in traffic to small publishers, significantly higher than the headline rate drop of six per cent.
The study slammed the law's anti-innovation effect, making it harder for new players to enter the publishing market. It would also be disastrous for consumers, which would no longer know what news articles were available to read. This idea again shows a lack of understanding of how the internet has transformed the market.
More than ever before, consumers are enjoying the freedom of news from multiple sources and thereby delivering advertising revenue to many different publishers. We need copyright laws in Europe that recognise the reality of the internet, not proposals that deny this reality and try to turn the clock back to a pre-digital age.
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