EU Publishers Freak Out Now That People Are Realizing Just How Fucked Up Their Link Tax Really Is

from the stop-the-link-tax dept

We recently had Julia Reda, a Member of the EU Parliament, on the podcast to discuss the horrible copyright directive proposal soon to be voted on by the Legal Affairs Committee in the EU Parliament. As we've been explaining, there are two very problematic parts to the copyright proposal: mandatory upload filters and the so-called "link tax." The link tax is also refered to as neighboring right or a snippet tax or a wide variety of similar things. But the crux of it is this: publishers are annoyed that Google and Facebook are successful, while they've been struggling. Ergo, the simplest solution is that Google and Facebook should be giving them money.

To make this happen, for a while now they've been dishonestly screaming that Google and Facebook are somehow unfairly "profiting" off of their work, because those sites link to online published news stories, often including snippets. The theory is that this somehow takes away from those own sites' ability to profit. This... makes no sense. First off, this effort drives valuable traffic to the websites of these publishers. This is obvious from the fact that all of the publishers whining about this (1) have not used robots.txt to block sites like Google from scraping them and (2) employ their own search engine optimization team to appear higher in search results, showing they value traffic driven by search. The "solution" to this made up "problem" then is to say that sites like Google or Facebook are violating a brand new "publisher's right" or "neighboring right" in sending these sites traffic without also paying them, and thus they want to force sites to get a license to send traffic.

Obviously, this goes against basically any reasonable conceptual understanding of how the internet works. And, this concept has been tested in Europe and failed. Germany tried it, and when Google responded by no longer including snippets for the publishers demanding payment, traffic to those publishers declined, and those publishers freaked out, eventually giving Google a free license. Spain then tried the same thing, but to avoid the "free license" issue, included as part of its law that you couldn't offer a free license (more or less making Creative Commons illegal, but that's a whole other issue). The end result there was Google News pulling out of Spain entirely, and traffic to publishers' sites dropping significantly.

Of course, the German (mainly) publishers can't stop pushing this idea, and thanks to some friends in the EU Commission and EU Parliament, it's quite close to becoming law in the EU. People are very vocally protesting and pointing out the problems with this, so the publishers are now trying to push back by putting out a ridiculous "Mythbuster" document that claims to clear up why everyone is wrong about the problems of a link tax. Let's take a look.

Fact #1: A publishers' right is NOT a Google/links tax

‚ÄčThe claim that the publishers' right is a threat to the link is the most misleading scare tactic of all from those who seek to undermine the case for a new publishers' right. There is a material and functional difference between you or me reading something we like and posting a link to Facebook and what commercial aggregators and search engines do. Opponents to the neighbouring right for press publishers like to suggest they're equivalent somehow.

Systematic scraping of content - which involves copying it 'en masse' into a private and permanently retained database, processing it and using extracts in commercial services such as search engines, for the purpose of making available text or images (or any other creative content for that matter) together with hyperlinks for commercial purposes is not equivalent to the activities of individuals browsing the web and posting links to things they are interested in.

This is... an interesting spin on things. Of course, it raises a pretty serious question: if there is a "material and functional difference" based on who does the linking... what is that actual difference, and how do we define it in law in a way that doesn't have serious negative consequences? But, more to the point, if it's such a huge problem, why don't these publishers just block the systematic scraping of content from the likes of Google until Google agrees to pay a license? This is not hard to do. It's actually incredibly easy. But the publishers don't want to do that.

And, really, even if we take the publishers' claims at face value, what they are actually saying is that internet search should require a license from every internet site it links to. That's... quite an astounding argument to make. It would have created a very, very different internet, and not a very good one.

Fact #2: Publishers will NOT use this right to block access to their content

Why would we do that? Popularity of our content has never been greater, particularly with the growth of smartphone readership and multiple access points to out content.

It is in publishers' interest to make their products available as widely as possible, on as many platforms as possible. But if big commercial operators continue to be allowed to reuse publishers' products and content without a licence or asking for authorisation, in the long run there will be less of them available. Even if some products are not available on all platforms users will still have many ways to discover and consumer those products, including on publishers' own websites!

First of all, there is not just no evidence to support the idea that there will be less publishers' product if Google and Facebook don't pay them, there is counter-evidence. There has been an incredible explosion in content creation in the past couple of decades, and much of it is driven by the massive decrease in distribution and discovery costs -- which in large part are due to things like search engines.

But a larger point on this one is that this "fact" is meaningless to the debate. I've not seen many people claiming that publishers will pull back their content. Indeed, part of the argument people are making is to wonder why they're not pulling back their content if search engines and aggregators really are so harmful. Again, it's not hard for them to do.

Data shows that news and press content is the most 'wanted' content on social networks and online platforms (Reuters Digital News Report 2015). When dealing with sometimes very large and powerful operators, it's quite right that publishers should be able to grant permissions in return for agreed conditions and to withold permission when agreement cannot be reached.

So, why not do that now? Again, it would be easy for a publisher to withhold content from Google and only put it back with a licensing agreement of some sort. They're not doing it. Instead, they're investing in SEO which suggests that they know that they actually get value from search. But now they want not just value, but also extra payments on top of that.

Fact 3: This right is NOT unique to publishers; Publishers are NOT asking for special treatment

A publishers' right will be similar to the related rights already enjoyed by broadcasters, music and film producers, whose finished works are protected in their entirety. This is what press publishers are asking for, too.

Since 1991 computer programs have benefited from full copyright protection at EU level. Furthermore, it's the companies, whose employees create these programs, which own all the rights to the programs and who have full exclusive control over how they are managed and enforced, just like film producers or broadcasters.

Whoo boy. Someone could write an entire PhD thesis on just how wrong this is. What the publishers are demanding goes way beyond copyright. Broadcasters, musicians and film producers do get copyright -- but so do publishers. Publishers are now asking for something in addition. They already have copyright protection in their works. Now they're asking for a separate right to link to their content (and, depending on interpretations) to include a snippet of what's in the link.

Fact 4: This is NOT just about Google

It's a sad fact of the internet that there are many companies, large and small, old and new that systematically scrape and re-publish press content for commercial purposes without permission or payment.

Why is this sad? This is what makes the internet useful. And they're not "republishing" press content. They're LINKING TO YOU AND DRIVING YOU TRAFFIC. That's a good thing. If you actually spent 20% of what you've spent over the years lobbying for this awful idea on figuring out how to take advantage of the free traffic that these sites send you, you'd already be doing much better. Instead, you do a classic rent seeking move to demand from the government that which you failed to accomplish as a business.

And, more the point: if this does go into effect, Google may be able to afford it, but the others won't. So in the end, it will be about them. Because you'll have systematically removed everyone else from the market.

Fact 5: Small publishers will NOT be negatively impacted

Currently, even large media corporations are not in the position to negotiate for a fair settlement with dominant players. The hope is that the publishers' right might begin to address this asymmetry of power and make it easier for all publishers - whatever their size - to monetise and share fairly in the value of the content in the future if they would like to.

‚ÄčAs the law currently stands, in order to defend their rights publishers need to attempt to track all uses of their content across the whole internet, issue notices in respect of each individual infringing use they discover, and, frequently, prove the chain of title for tens of thousands of articles and photographs. This is daunting, extremely costly, time consuming and practically impossible except in a small number of cases. The outcome is also rarely better than a takedown of the infringing content; damages and costs are rare.

Well, first off, we have actual evidence of this already in Spain, where studies showed that it DID disproportionately hurt small publishers. This is also why small publishers have come out against your dumb proposal. So, it's great for you to say it will have no impact, but you have no evidence to support that position, and tons of evidence against it. It seems, yet again, that your fact is, in fact, a myth.

Fact 6: Innovation will still be possible - and more accessible!

A publishers' right will help open the way for more innovation. Clarifying the law at EU level will improve press publishers' bargaining position when it comes to third parties' use of their works, and more legal certainty over their rights will help encourage investment and increase the possibilities for publishers of all sizes across Europe to develop new product offerings, to the benefit of their readers.

This isn't "clarifying." This is creating an entirely new right that by your own actions (SEO, failing to use robots.txt) you show is unnecessary. This isn't about "more legal certainty." This is about massively putting your fingers on the scale, such that more successful businesses need to pay you for sending you valuable traffic.

There's a myth that a liberal copyright regime is necessary to encourage innovation, but this is not true. Imagine a situation where tech companies allow others to use their patented or trademarked products or services without authorization or payment. Tech companies fiercely defend and protect their own intellectual property. Why should it be any different when it comes to protecting copyright?

This is hilarious. First, there is tons of evidence to support the idea that a more "liberal copyright regime" helps with innovation. But the really nonsense claim is that this is somehow hypocritical of tech. Now, you can certainly point to some tech companies that over-aggressively enforce various aspects of their patents and trademarks, but the more innovative ones are not exactly known for it. Google is not going out and suing others over patents. Companies like Tesla have even freed up all their patents. The tech industry tends to view patents and trademarks as more of a necessary evil, rather than something they need to "protect" their work. So, no they don't "fiercely defend and protect." This whole claim is just nonsense from some European publishers who don't seem to know what they're talking about.

Fact 7: Users will NOT be criminalised and the internet will NOT be broken

Nothing we are asking for would affect the way that our readers access our content or share links on social media or via apps and email to friends and family. Nor will it change the contractual arrangements with journalists, photographers and other contributors.

Bullshit. You just said that you want large companies to pay up. That will absolutely, by definition, change how readers share content and links on social media. The platforms that are doing this will suddenly have to get licenses, meaning they'd likely block plenty of sharing on content they don't have such a license for. And some, a la Google News in Spain, may drop out altogether.

The only people who will notice any changes at all are those who today free-ride for commercial gain on publishers' investments without permission or payment. Who are they? Well, not the readers, authors or individual users, but commercial organisations whose business models and significant economic benefits depend on the use of publishers' journalistically-produced content.

So... EU Publishers: here's a question. If you consider Google sending you free traffic as "free riding," um... aren't you "free riding" on the traffic Google sends you for free? Isn't this line of reasoning going to get you into deep shit when someone spins around and asks why you're free riding on Google and Facebook and not paying them for the traffic they send you? After all, you're getting commercial gain from Google and Facebook's investment without permission or payment.

Fact 8: An independent, free press that supports diversity and upholds democracy CANNOT survive indefinitely without generating revenues

A free and independent press can only exist if there is adequate revenue to pay journalists, photographers and freelancers and to finance their training and security. Today, the prospect is increasingly reduced, due to declining print revenues that have not been matched by digital despite increased levels of readership. The reasons for this are complex, but in a nutshell large search engines and other distributors make publishers' content available for free to the user without re-investing in its production while making it difficult for publishers to charge users directly for the same content.

This is true! Finally! But what does it have to do with getting this brand new right? Again, the experiments with it in Germany and Spain have not led to any new revenue for publishers. So why do you naturally assume that it will magically happen this time? The decline of print revenues is a big deal. And it is a huge challenge for publishers. But why do you assume that the answer is having governments force other companies to pay you? What a weird approach.

The loss of advertising share is also significant, as much of this now goes directly to search and social networks, which attract larger user groups that include users who are reading publishers' content on their platforms. Finally, unauthorised large-scale re-use of publishers' content and a lack of legal clarity that would enable enforcement against large-scale infringements is a growing problem that needs reversing.

The loss of advertising share... basically sounds like admission that you guys suck at your jobs. And you want a government bailout. And, again, they're not "re-using" your content. They're sending you traffic. Traffic that you could monetize. If you were good at your jobs and not crying to Brussels.

Fact 9: Consumers will still be able to find news and content on different platforms

Publishers actively make their content available on all platforms, accessible on any device of choice. They recognize that consumers benefit from easy access to their content wherever they happen to be, whether this be through publishers' own websites, or on social media or search pages where multiple sources of content are aggregated. Not only do consumers benefit, but so do the hosts of publishers' content who derive value and real benefits through increased traffic, advertising revenues or in some cases subscription fees.

What? I mean, sure, publishers will make their content available if they are getting paid for the links. That's the whole freaking issue. This would mandate fees for those links, and of course then the publishers will make the content available -- they want to get paid. The problem is that many platforms won't post links to their content any more because it won't be cost effective.

Publishers recognise that search and social media platforms are important partners for news organisations and that their traffic brings benefits, although not on the exaggerated scale claimed by some. The current system does not recognise the value third parties get from publishers' content. It is unsustainable for publishers to continue funding high-quality professional journalism without a fair share of the value others derive from their content.

Their traffic brings benefits... which is why we need to get them to also pay us? How does that make any sense?

Fact 10: Publishers are NOT just trying to support 'old' business models

Publishers have made an important transition from analogue to digital over the past decade with high degrees of innovation and enormous growth in audience and popularity. They have embraced the digital age and count as many technical staff as editorial.

You do this after paragraph upon paragraph talking about how you can't survive without this tax on links. Which means you haven't actually embraced digital. It means you're demanding that those who actually have embraced digital subsidize your failures.

The publishers' arguments here are not just weak, they're nonsensical. There is no way to understand the link tax "publishers' rights" proposal as anything other than a massive subsidy from successful internet companies to publishers who failed to adapt to a changing marketplace. It's sad that the EU seems to think that's an appropriate response, and that the powers that be don't seem to care about the existing evidence of how such laws have completely flopped in the past.

This is not evidence-based policy-making. It is corruption. It is corruption in bowing to the will of a few large publishers who have failed to innovate successfully, and are now going to harm the entire internet in response. The EU Parliament should not allow this to happen. If you agree that this is crazy, go check out SaveTheLink.org, which has more details.

Filed Under: copyright, eu, link tax, neighboring rights, publishers


Reader Comments

The First Word

The most important fact of all

Fact 0: The true purpose of copyright is to keep abusive publishers in check.

Seeing publishers whining about how they need more copyright to give them leverage against others for their own protection is real rich, considering that copyright was originally invented to give authors leverage against publishers because of their abusive behavior.

The intro to the Statute of Anne, the original copyright law, makes this abundantly clear:

Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty, that it may be enacted, and be it enacted by the Queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same;

Publishers hate this, and they've spent the last 200+ years slowly turning it inside out. We need real copyright reform, to get it back on track and restore copyright to its original meaning, instead of the monstrosity it's become in the intervening years.

—Mason Wheeler

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  1. icon
    Mason Wheeler (profile), 8 Jun 2018 @ 2:21pm

    Re: Re: Re: The most important fact of all

    Thank you for posting this quote. The best defense against agenda-driven modern writers trying to rewrite history is to look at contemporary sources, and here we clearly see the perspective of the authors of the time and how they were looking for legal leverage against abusive publishers, precisely as I said.

    If you go through the pamphlet, you see several times that, though he speaks from a position heavily steeped in Christian rhetoric and condemns written works that he finds obscene or heretical, he believes that giving a "Licenser" the ability to grant or prohibit the granting of publication licenses--in other words, having a censorship regime--is far worse in his eyes, something to be avoided because it will bring a whole host of problems that Techdirt readers will be quite familiar with already. (The more things change...)

    > Is it then fit the Licentiousness of the Press should be Unrestrain'd?
    > ...
    > Licentiousness of all sorts ought to be restrain'd, whether of the Tongue, the Pen, the Press, or any thing else, and it were well if all sorts of Licentiousness were as easy to Govern as this; but to regulate this Evil ten times more pernicious, is doing us no service at all.

    The solution he argued for, as noted, was to give authors a copyright with which to restrain the excesses of "the Press" (which in that time meant publishers, not news media.) Which is precisely what ended up happening.

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