In a stunning display of technological and regulatory ineptitude, Italy’s ‘Piracy Shield’ law has managed to block access to Google Drive, apparently confusing the popular cloud storage service with a hotbed of illegal activity. Bravo, Italy, bravo.
Earlier this year, we wrote about Italy’s new “Piracy Shield” nonsense, in which the country’s telecom regulator, AGCOM, could designate certain IP addresses as “piracy” and require all internet providers and VPNs to block access to those sites. As we noted in our original article, this was already causing problems, such as when a dynamic IP address from Cloudflare was blocked, taking out legitimate sites in the process.
The structure of the Piracy Shield means that it’s almost impossible to appeal bad blocks. The focus seems to be on blocking first and dealing with the fallout later.
Earlier this month, Italy made the Privacy Shield even worse, amending the regulations to increase criminal sanctions for failing to block IP addresses AGCOM designates and expanding even further the list of VPNs and DNS services covered. It also put in place rules demanding that ISPs proactively alert AGCOM of suspected piracy or face criminal charges with potential prison sentences.
Just last week, our own Glyn Moody sent over an article he had written on Walled Culture about just how bad all of this was. I was all set to republish it here this week. But fate intervened. Over the weekend, someone alerted us to the news that AGCOM had designated Google Drive as a piracy service, and pretty much all of it was blocked in Italy for a few hours.
On the evening of Saturday 19 October, a ticket uploaded to the system adopted by the Communications Authority (Agcom) to stamp out illegal streaming blocked a critical domain of Drive, the Big G web service used to archive and share data in the cloud, and one of the YouTube caches. Two resources that, obviously, have nothing to do with the pirate broadcasting of football matches and other sports, which is what Piracy Shield should be dealing with, but which demonstrates for the umpteenth time how the technology gifted by Serie A to Agcom ends up paving over harmless sites. Even stepping on Google’s toes.
Let’s reconstruct the facts. At least since 6:56 PM on Saturday afternoon, as demonstrated by a source to Wired through some analysis, Piracy shield has been blocking the addressdrive.usercontent.google.com . As Google itself explains , it is one of the critical domains for Drive. The blackout implemented by the national anti-piracy platform prevents it from being reached and, in fact, from being able to download files stored on Drive . Wired was able to verify on Piracy shield search , a project for public sharing of blacked-out domains provided by Infotech srl, the effective blocking of the domain.
The same report notes that some YouTube URLs were also listed, so part (but not all) of YouTube was blocked across Italy.
Really making a dent in piracy there, AGCOM. Great work. Bang-up job, everyone.
As Wired explains, part of the issue is that the Piracy Shield law is so stupidly written. Rights holders can file complaints with huge lists of domains they want blocked, and ISPs are then given 30 minutes to block those domains. So, you know, mistakes are made. Like blocking all of Google Drive.
There is an “allowlist” that is supposed to protect against taking down big trusted sites like Google, but apparently a key Google Drive domain wasn’t on there.
The article also notes that while a few ISPs have chosen to unblock Google Drive, many had not at the time of writing. They have strong incentives not to unblock, as ISPs are subject to costly sanctions if they unblock domains designated under the Piracy Shield.
Of course, this kind of overblocking always happens. We’ve talked about examples in the past where similarly stupid blocking demands have removed tens of thousands of sites from the internet. You would think that someone in the Italian government might recognize the problems of this approach by now?
We’ve been writing stories about how, when it comes to digital purchases, we typically do not own what we’ve bought. Instead of buying a product, such as the digital version of a video game, what we are instead buying is a non-transferable license to use that product. While readers here will be largely familiar with this annoying concept, most online retailers bury the language for this so deep inside their labyrinthian EULAs that the overwhelming majority of the public is none the wiser. Steam has traditionally been no different, which is how you get confused fans complaining about how a game they bought has been changed via an update, or how your Steam library just disappears when you shove off this mortal coil.
But thanks to a California law that goes into effect next year, this has already changed. Ahead of that law, Steam has updated the messaging users see when purchasing a game to put the lack of game-ownership right in their faces.
Now Valve, seemingly working to comply with a new California law targeting “false advertising” of “digital goods,” has added language to its checkout page to confirm that thinking. “A purchase of a digital product grants a license for the product on Steam,” the Steam cart now tells its customers, with a link to the Steam Subscriber Agreement further below.
California’s AB2426 law, signed by Gov. Gavin Newsom Sept. 26, excludes subscription-only services, free games, and digital goods that offer “permanent offline download to an external storage source to be used without a connection to the internet.” Otherwise, sellers of digital goods cannot use the terms “buy, purchase,” or related terms that would “confer an unrestricted ownership interest in the digital good.” And they must explain, conspicuously, in plain language, that “the digital good is a license” and link to terms and conditions.
Frankly, the idea that this had to be mandated by state law is silly. That law didn’t suddenly educate Valve and other online marketplaces for digital goods that there was a problem here. Surely Valve has fielded questions and/or complaints from consumers in the past who had thought they’d bought a game only to find out they hadn’t. These companies could have proactively decided that informing their customers of the reality in a way that doesn’t take a set of bifocals and a law degree to parse through a EULA or ToS was a good idea. They just didn’t want to, for reasons that I’m sure you can decipher for yourself.
But now consumers will be better informed. And what will be interesting will be to see if this changes anything when it comes to the macro-behavior of customers.
In other words, if there isn’t some precipitous drop in purchases now that this new language is in place, the open and remaining question will be why Valve and companies like it weren’t more upfront about this reality all along?
We’re coming right up to the election here in America, so it is obviously time for all kinds of intellectual property strife surrounding political campaigns and advocacy groups. We see all kinds of ways these disputes happen, from campaigns making use of music at rallies, to political ads that use music, up to and including the use of other media in political advertisements.
Sometimes these uses are proper and covered by the fair use defense. Other times, such as Trump’s use of “Electric Avenue” in an ad, are not. But if you really want my favorite version of this kind of dispute, it certainly must come in the form of religious on religious combat being done over clips of Billy Graham juxtaposed with clips of Donald Trump being roughly as un-Christ-like as you can possibly be.
See, the Billy Graham Evangelistic Association has threatened to take legal action against the group Evangelicals for Harris, over the latter’s political ad that puts clips form a Billy Graham sermon over 30 years ago with clips of Trump being Trump.
That ad, the result of a $1 million ad campaign by Evangelicals for Harris, is now the subject of a potential lawsuit from the Billy Graham Evangelistic Association, a Charlotte, North Carolina-based nonprofit that supports the ministries of Billy Graham’s son and grandson. In late September and early October, Evangelicals for Harris, a grassroots campaign of the political action committee Evangelicals for America, said it received multiple letters from lawyers representing the association, including a “cease and desist” letter. An Oct. 2 letter, sent from outside counsel and obtained by RNS, threatened to sue Evangelicals for Harris on the basis of copyright infringement.
BGEA claims copyright on those clips and is suggesting that the use of them by Evangelicals for Harris constitutes copyright infringement.
It. Does. Not. It doesn’t for all kinds of reasons, actually, all of which coalesce into the fair use defense. I would normally articulate that defense within this very paragraph, in fact, but the legal team for Evangelicals for Harris has done such a thorough takedown of the claim that you should just go read it for yourself. There is a point by point analysis of the four tests for fair use within that statement, but it also opens with this preamble.
As a formal legal matter, EFH’s limited use of Billy Graham’s speech falls squarely within the fair use protections afforded by Section 107 of the Copyright Act and numerous judicial decisions.[3] EFH is legally entitled to use and comment on the short segments of this speech regardless of your position on the matter. The “Keep Clear” advertisement contains short clips from a speech given by Billy Graham thirty-six years ago. The advertisement uses these clips to comment on Graham’s message and contrast it with the statements and actions of former President Donald Trump. This is a paradigmatic example of fair use, which protects “criticism, comment, [and] news reporting”[4] and provides “breathing space within the confines of copyright.”[5] Importantly, the protections of fair use are “broader when the information relayed involves issues of concern to the public”[6] because the “[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.”[7]
Section 107 provides four enumerated factors to evaluate whether the use of copyrighted material qualifies as fair use. These factors “are to be explored, and the results weighed together, in light of the purposes of copyright.”[8] Each of these factors weigh in favor of EFH and illustrate the strong protection enjoyed by material of this kind. We have set forth a thorough and detailed analysis of these issues below, and there can be no question that EFH’s videos constitute appropriate “fair use.”
And they do a good job of it, too. The work is transformative in nature, changing the clips from what was a religious sermon to one of political commentary during an election cycle. The nature of the work used includes noting that a tiny percentage of the sermon was clipped for this advertisement, while that same sermon is on offer in its entirety for free on the web both from official BGEA channels and through other providers, apparently unmolested by BGEA’s legal team. The amount of the sermon used in the clips is also, again, fractional, serving to not in any way replace the consumption of the sermon in whole. And, finally, as a result of some of the above, nothing about the use in this case diminishes the market for Billy Graham sermons.
In response to the threatened lawsuit, Evangelicals for Harris released a statement saying Franklin Graham is taking a page from Trump’s playbook by trying to silence the group through legal action.
“Franklin is scared of our ads because we do not tell people what to do or think. We merely hold Trump’s own words up to the light of Scripture, the necessity of repentance, and Biblical warnings against leaders exactly like Trump,” they wrote in a post on X.
No lies detected. I am very much the wrong person to get into a conversation about how evangelicals ought to view Donald Trump. I’ll leave that to actual evangelicals to articulate. Clearly, based on this example, they are more than capable of doing so.
But I’m also trying to picture the Nazarene incorrectly wielding something like copyright law to combat the messaging of the Pharisees and, well, somehow I just can’t seem to conjure the image, no matter how hard I try.
You all know the playbook when it comes to shady copyright shakedown outfits that work with or for pornography companies. Groups like Malibu Media and others built an infamous reputation for using the legal system to extract IP address-based information on customers whom they then claim downloaded porn illegally, they then mail settlement offers to those people, sometimes including hints at how embarrassing a trial would be for them, and then they collect settlement fees from those scared people, guilty or not. And if this all sounds like a form of extortion to you, well, welcome to the club.
This doesn’t only occur in America, of course. It’s prevalent elsewhere, too, including in the UK. But one recent study has concluded that the legal system does not account for the public’s “sexual privacy” when entertaining these sorts of legal disputes.
Changes need to be made to the UK legal system to protect people from exploitative litigation designed to prey on vulnerabilities, a new study warns. Reforms need to be made to protect adults from unfairness during copyright enforcement legal proceedings. This would also help to prevent children being exposed to adult pornography online.
The study by Professor Abhilash Nair and Professor James Griffin from the University of Exeter Law School, calls for a fundamental “reconceptualization” of the right to privacy. The study is published in the journal Computer Law & Security Review.
Now, it’s important to note that this study does not in any way suggest that pornographers or their legal partners should be disallowed from enforcing their copyrights. Instead, this is all about the consideration and weight that the courts should afford the accused. Put another way, the status quo is such that copyright cases concerning pornography and other forms of content, such as music or video games, are essentially treated the exact same way. But those forms of content are obviously different, as are the sensibilities people have around them.
Nobody is going to be embarrassed to be accused of downloading the latest hit single as they will adult entertainment videos. And it’s precisely that difference that the study says has given rise to these pornography-specific copyright trolling efforts.
“A fundamental lack of appreciation of sexual privacy at a conceptual level in the context of consumption of legal pornography is one of the main reasons why exploitative practices like speculative invoicing models continue to exist.”
“The current position is no longer tenable. Privacy generally, and sexual privacy in particular, deserves more recognition and consideration in court during copyright enforcement actions for pornographic works on the internet to ensure that the administration of the copyright balance remains in the hands of the legislature and courts, rather than in the hands of the speculative invoicer.”
Is there really any neutral party out there that could possibly disagree with this? Sexuality is a protected status in so many ways in many countries, yet we give it no deference in copyright cases in the legal system.
While we still lament the fact that the DMCA’s Section 512(f) has no real teeth to punish people for filing bogus DMCA takedown notices, at least some companies are still trying to use it against the most egregious offenders. Last year, Google went after two people in Vietnam, who Google accused of creating at least 65 Google accounts and then using them to send an astounding 117,000 bogus copyright claims.
Apparently, this was the strategy used by the two individuals, Nguyen Van Duc and Pham Van Thien, to try to remove competitors hawking similar t-shirts to the ones they were selling:
Over the last few years and continuing to the present, Defendants—led by two individuals, Defendants Nguyen and Pham—have created at least 65 Google accounts so they could submit thousands of fraudulent notices of copyright infringement against more than 117,000 third-party website URLs. Defendants appear to be connected with websites selling printed t-shirts, and their unlawful conduct aims to remove competing third-party sellers from Google Search results. Defendants have maliciously and illegally exploited Google’s policies and procedures under the DMCA to sabotage and harm their competitors.
Perhaps not surprisingly, the defendants chose to ignore the lawsuit. The court let Google serve them both via email and SMS, and after reviewing all the details, determined that Google kinda had a point about these jackasses. And now, the judge has entered a default judgment, enjoining the defendants from sending more bogus copyright notices.
IT IS ORDERED that Defendants and their agents, employees, successors, and assigns, and all other persons acting in concert with or at the discretion of Defendants, are hereby permanently enjoined from the following:
1. Submitting any notifications of copyright infringement or takedown requests to Google based on false assertions of right of copyright ownership.
2. Creating or attempting to create any Google accounts.
3. Using any Google products or services to promote any of Defendants’ websites or products.
4. Using any Google products or services to harm or attempt to harm any third parties, including without limitation Google’s Search Ads customers.
5. Assisting, aiding, or abetting any other person or entity in engaging or performing any of the activities described in subparagraphs (1) through (4) above.
Some might argue that this is all kinda pointless. The defendants ignored the case entirely. They had to be served via email, and the judgment is a default. But, still, it’s important to call out those who are abusing the legal system in such a way and establish that such activities will not be tolerated. So even if this particular result doesn’t lead to much, it’s a useful signal reminding people who are drawn to such abuses to maybe think again.
It shouldn’t be news to any regular readers here that Warner Bros. has been a ridiculously jealous protector of all things intellectual property when it comes to the Harry Potter franchise. Harry Potter themed fan festivals? That’s banned magic, according to Warner Bros. Want to make a parody condom called “Harry Poppers”? Here comes Warner Bros. to kill the mood. A non-profit dinner with a Harry Potter theme, mostly to make a mother’s daughter happy? The Warner Bros. did its dementor thing to shut down all that joy.
Now, what should be obvious in all of those examples is that this all works against the interests of Warner Bros., the publishers of the books, and J.K. Rowling. After all, does anyone really believe that these fans showing off their fandom, gathering to celebrate the Harry Potter franchise, in any way is a threat to sales of these books and movies? Of course not! If anything, they build upon the Potter community and serve as an interest multiplier that can’t possibly do anything but drive more interest in the books and films.
It’s a sad day for little witches and wizards in Jackson Hole. The Teton County Library’s (TCL) slate of Harry Potter programming has been canceled due to copyright infringement. TCL announced the news on Wednesday, Oct. 2. TCL said it had received a cease-and-desist letter from Warner Bros. Entertainment Inc., which owns and controls all things Potter.
“Prior to receiving the letter, Library staff was unaware that this free educational event was a copyright infringement,” TCL’s announcement reads. “In the past, libraries had been encouraged to hold Harry Potter-themed events to promote the books as they were released.”
While other festivals have attempted to rebrand to generic names and themes to get around all of this, the library in this case isn’t bothering. It’s just shutting the whole thing down. And while the library is making conciliatory noises about respecting the intellectual property of others, this is completely idiotic.
Precisely what about a library building some programming around children’s love for Harry Potter represents any kind of threat whatsoever to Warner Bros.? I’ll wait, while someone tries deperately to grasp enough straws to formulate an argument for this. But really, don’t bother. This is protectionism for the sake of protectionism.
And it’s incredibly shortsighted to boot. The fans who grew to love the Harry Potter universe have grown up and now have children of their own. And that new generation could be loyal Potter fans too, if Warner Bros. would let them. Instead, the company appears far more interested in shutting down what are essentially entry points of interest for an entire new generation of potential fans and customers.
It appears Harry Potter will no longer have a nose, with Warner Bros. having cut it off to spite his face.
So by now, assuming you’ve spent any decent amount of time reading Techdirt, you likely know that Nintendo has a reputation for being aggressive and litigious when it comes to intellectual property enforcement. Someone makes a game that is inspired by Pokémon, but does not directly copy it? Lawsuit. Mods for that same game make use of Nintendo IP? Shut them down. YouTuber reports on a Nintendo game that was pitched but never got made? DMCA that shit. Find out your hot new Switch game got leaked early? Well, obviously you go to war with every kind of Switch emulation out there.
The channel in question, Retro Game Corps, describes itself as offering “in-depth reviews and showcases” as well as “emulation setup guides”. One of its more recent videos has received a copyright strike from Nintendo, marking a second strike for the channel.
“My Wii U video was taken down and I received another copyright strike, even though this showcase video was no different than all of the tech demos and reviews I have made on this channel previously,” Retro Game Corps owner Russ wrote in a statement on YouTube (thanks, TimeExtension).
Alright, first and foremost, I have to correct something in that quote. Nintendo did not issue any copyright strikes. It did issue a DMCA takedown notice. YouTube, as the platform, would be the one to issue the copyright strike. That being said, the bad actor in this case is still Nintendo for going after a YouTube channel simply because the company doesn’t like the content being discussed on it.
Now, notably, this was not about Switch emulation, but Wii U emulation. You know, the console that isn’t even for sale any more. So any claims that this channel is somehow any kind of threat to Nintendo’s bottom line is laughable in the extreme. And both Russ and I think he has a really good shot at making a fair use claim.
Russ is now considering filing a counterclaim as he believes the video “was for educational use, transformative in nature, and had no effect on the market”.
“It was a demonstration of a console no longer for sale (even the Wii U eShop is closed, so the company itself has no means of earning revenue from Wii U sales),” Russ said. “However, I am reluctant to open that can of worms with a multi-billion dollar corporation, as their next step would be to file legal action.”
Regardless of whether a counterclaim is filed or not, Russ has also said he’s going to alter the way he produces his videos in the future. This includes either just not using, or blurring out, any actual Nintendo gameplay content. But what’s frustrating about that is that Nintendo generally doesn’t have a huge problem with gameplay content showing up on YouTube.
Apparently it’s only if you’re discussing emulation that the company selectively enforces its “rights.”
Going all the way back to 2020, we have been discussing one of a series of copyright disputes centered on video games and their faithful depictions of real-life tattoos within them. While the first of these were related to depictions of NBA players in Take-Two’s NBA2K series, which the company generally successfully defended, one outlier was for Take-Two’s WWE 2K series, in which it faithfully reproduced the tattoos on Randy Orton, a wrestler. That case went to trial, in which the jury ultimately found for the tattoo artist, Catherine Alexander. However, the trial that took roughly 2 years and who knows how much in legal fees to conduct ultimately resulted in the jury awarding Alexander damages in the amount of $3,750. How in the world could that possibly be worth all this trouble?
Trouble that extends far beyond a four-figure damage sum, too. After all, the real damage in all of this is the precedent it sets. The idea that someone receiving a tattoo, creative endeavor though it may be, might suddenly lose some rights over the depiction of their own image and likeness is absurd. Absurd and, frankly, very problematic when it comes to what is essentially a play at ownership over a portion of a person’s body.
So, when Take-Two petitioned the court for motion for judgment as a matter of law, arguing both that the jury erred in considering its fair use defense and that the jury’s damage award, paltry though it might be, was based on undue speculation, I had hoped that the precedent might be reversed.
It was not. The court has instead found, in large part due to the limits on what it was allowed to consider, that the jury was reasonable in its finding that Take-Two had indeed infringed upon Alexander’s copyright rights. On the other hand, the court also found that Alexander and her witnesses presented no evidence of actual or potential monetary injury, and so the damages in the case have been nullified to zero.
“Alexander presented no evidence at trial that would support the jury’s damages award. There was no evidence of either a hypothetical lost license fee or the value of the infringing use to the infringer. Alexander’s expert, Dr. Jose Zagal testified that he believed a portion of the sales and profits of the video games were attributable to the five tattoos because Defendants needed Orton as a character in his game and he needed to have his tattoos. However, Dr. Zagal did not conduct an analysis of how much the video games’ sales or profits were attributable to the tattoos. Ryan Clark, Alexander’s expert, also offered no opinion regarding damages. Further, Alexander testified that she has never licensed a tattoo for use in any medium, and that she could not identify any business or clients that she lost due to Orton’s tattoos.”
As Eric Goldman rightly notes, this is no cause of celebration. While it’s a bit funny that it took four years worth of a legal battle to get all the way to a judgment that both finds that Take-Two infringed on Alexander’s copyrights but awards her precisely zero in damages, this judgment also further solidifies the notion that depicting a famous person who has tattoos is somehow infringement.
All of the questions around a tattooed person’s personal autonomy remain as a result.
Taylor Swift is in the news, and not just because she has become the most decorated solo artist of all time. The fact that Taylor Swift has already been mentioned multiple times on Walled Culture underlines that she is also an important – if surprising – figure in the world of copyright. That’s because Swift has been re-recording her albums in order to gain full control over them. She lost control because of the way that copyright works in the music industry, where it is split between the written song and its performance (the “master recording”). Record label contracts typically contain a clause in which the artist grants the label an exclusive and total license to the master. By re-recording her albums, Swift can add control of the master to her control of the written songs.
Swift’s long battle is well-known in the industry. But an article on the Harvard Law Today site from a few months back adds an important detail to this story that I have not seen reported anywhere else. It draws on comments made by Gary R. Greenstein, a “technology transactions partner” at Wilson Sonsini, one of the top US law firms. It concerns a common legal requirement in contracts to wait a certain number of years before artists are allowed to re-record an album:
It’s significant, Greenstein said, that the first Taylor’s Version wasn’t released until she’d been off [record label] Big Machine for three years. Until then, she was legally bound not to re-record any of the material, and this time frame was typical of record deals in the past. But this is the part of the equation that Swift likely changed for good.
According to Greenstein, the major record labels used to be fairly reasonable in terms of the length of the prohibition they imposed on on re-recording. But he says that’s no longer the case as a result of Swift’s successful project to regain full control of her own works:
record companies are now trying to prohibit re-recordings for 20 or 30 years, not just two or three. And this has become a key part of contract negotiations. “Will they get 30 years? Probably not, if the lawyer is competent. But they want to make sure that the artist’s vocal cords are not in good shape by the time they get around to re-recording.”
In other words, as soon as a creator finds a way to take back control from intermediaries that have routinely derived excessive profits from the labor of others, the copyright world fights back with new legal straitjackets to stop other artists daring to do the same. That’s yet another reason for creators to retain full control of their works, and to shun traditional intermediaries that try to impose one-sided and unfair contracts.
It seems so long ago that people were trying to stop the worst aspects of the EU Copyright Directive. It was quite a battle, as Chapter 6 of Walled Culture the book (free digital versions available) recounts in detail. The final legislation was passed in March 2019, but it is important not simply to accept what happened and move on. The copyright industry used many dubious arguments to convince MEPs to vote for the new copyright framework. Although many of us pointed out the flaws in these at the time, we were drowned out by the chorus of well-paid lobbyists employed by the copyright world. Now that the EU Copyright Directive has been in force for a few years, we can begin to see its real-world effects. That allows us to compare them with the claims that were made to get the law passed.
For example, the so-called “link tax” was supposedly about saving the newspaper industry. Many publishers say they are struggling, which is true, but not for the reasons they claim. It is largely their own failure to embrace the opportunities of the Internet in the 1990s that led to newcomers like Google becoming hugely successful in the online news space. Nonetheless, publishers argued that a new ancillary copyright should be created to allow them to generate revenue that was desperately needed if the world of newspapers was to thrive in the EU.
In fact, as I wrote in an article six years ago, for the link tax we did have some data points. Both Germany and Spain had introduced a link tax before the EU Copyright Directive, and the resulting income from them was pitiful – certainly nowhere near enough to “save” the newspaper industry. This showed the link tax was more about publishers asserting their right to demand a payment from the Internet giants, as part of their larger claim that any use of copyright material must be controlled by them.
There was another thread to the publishers’ argument that even more copyright protection was needed. According to the newspaper industry, the journalists who wrote the news stories deserved some remuneration from Internet companies that linked to it. This was a seductive argument, not least for journalists. But I knew from my own experience as one of them, that these grand promises from publishers to share with journalists extra revenue rarely materialized, and that this was just a ploy to win over doubtful MEPs. We are now in a position to see how this particular aspect of the link tax has worked out. A useful post by Ula Furgal on the Kluwer Copyright Blog summarizes what has been happening around the EU in terms of implementations:
Rather unsurprisingly, only a handful of the member states decided to implement the provision on the journalists’ share by explicitly indicating what part of publishers’ revenues creators are entitled to receive. And among those that did, the share varies quite significantly. While in Italy, journalists are due to receive between 2-5% of publishers’ revenues, in Bulgaria the share should be minimum 20% and at least 1/3 in Germany. In Greece, the percentage depends on the proportion of journalists employed by a publisher, compared to those involved on casual basis. It is either 15% or 25%, with the former owed to journalists when less than 60% of them are salaried employees, which could be read as the Greek legislator’s attempt to reward the publishers providing creators with more stability. The share guaranteed by the Lithuanian implementation (to be followed by Poland) is the most generous, reserving 50% of the revenues to authors.
The blog post notes that there is huge variation here, “which is difficult to justify as it is rather unlikely that the news production processes and sector practices vary so significantly between the countries”. That state of affairs is particularly ironic since one of the main justifications for the EU Copyright Directive was that it would unify copyright law across the twenty-seven member states and bring it into the digital age. In practice, it has simply extended the earlier fragmentation of copyright in new ways.
As for the key question of whether journalists are, as promised, benefitting much from the new link tax, Furgal writes:
It does not seem that the right to appropriate share is currently making a substantial difference to the journalists and their incomes.
That’s really no surprise, given that the earlier link taxes in Germany and Spain made very little difference to publishers’ incomes, and journalists get a (varying) proportion of that. But as well as confirming that the past was a good guide to what might happen with any new EU-wide ancillary copyright, this particular piece of copyright history is also important for some current discussions, as Furgal points out:
Considering its complex positioning, between big tech, content producers and creators, the appropriate share problem could offer valuable lessons for the ongoing discussion on remunerating creators in the GenAI age.
Sadly, the failure of the link tax to deliver anything worthwhile for anyone, despite all the time and effort involved in bringing it in, is likely to be a lesson that the copyright industry refuses to learn.
