It is time for new courses in the EU copyright reform menu: How about a neighbouring right for publishers and an EU-wide panorama exception? In December, Commissioner Oettinger presented the what could only be described as the “appetiser”: Citizens should be able to access subscribed streaming services when going on holiday in the EU (imagine, you can use what you’ve paid for!). Now, the Commission is asking about ancillary copyright and dishes up the panorama exception in a public consultation. The consultation is open to participation until 15 June and EDRi will be collaborating in an answering guide along with C4C to help you out to respond to the consultation.
Ancillary Copyright: What is it about? Is this the “Google tax”?
An ancillary copyright shall give publishers the sole right to market their products. After publishers lobbied energetically for it, Germany has already introduced the measure in 2013, which was announced as a “Google tax”. The publishers complained about search engines and news aggregators like “Google News” that drive traffic to their sites. News aggregators collect links to articles from different news sources and present them including titles, snippets and advertisements. It is the revenue from these advertisements that lets the publishers see red. However, the German law allows an exception to this ancillary copyright measure when copying “single words or snippets”. This was seen as a win-win situation rather than a loophole, according to the regional court of Berlin, which dismissed a lawsuit of a publishers’ association recently who demanded money from Google. The court explained: Both news aggregators and publishers profit from the situation, as publishers get more attention for their content – and more advertising money. At the moment, only Google is allowed this exception. However, as many publishers prefer to be listed, they have refrained from claiming money from other online services in the first place.
From this point of view, the neighbouring right to publishers makes little sense, as it only fuels legal uncertainties and hinders innovation. Experts in a German parliamentary hearing were scathing about the law. However, the law is still in place, and has not even been evaluated as had been promised by the governing coalition. We know that the Commission has been playing with the idea of an EU-wide ancillary copyright for quite a time, closely watching the developments in Germany. It is getting concrete now. In the public consultation the Commission wants to learn about specific problems of the legal situation at the moment. The Commission also asks about possible impacts of an ancillary copyright on consumers, authors and publishers, and whether there is need for action in the field “open access to scientific publications”. An failed experiment on ancillary copyright was also undertaken in Spain.
The Panorama Exception: What is it about?
Apart from that, the Commission is taking up the debate about the panorama exception. The panorama exception relates to an exception to copyright with regard to buildings or pieces of art in the public space, which is one of the exceptions to copyright that can be implemented by Member States. With this exception is in place, you are allowed to take and share pictures of public buildings. However, while some Member States guarantee the panorama exception, others do not. The Commission is now flirting with the idea of clarifying “the current EU exception permitting the use of works that were made to be permanently located in the public sphere” to “take into account new dissemination channels”. It therefore asks for problems with the present legal situation and whether improvements are possible, either under a commercial or non-commercial right of use. The consultation is open until 15 June. Stay tuned at http://youcan.fixcopyright.eu/ where the Copyright for Creativity coalition, of which EDRi is a signatory, will be launching the answering guide to respond to the consultation in the following weeks.
Public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’
Copyright for Creativity coalition: “The Copyright Reform: Everyday I’m Hurdling – The EC’s latest hurdles on the race to the finish line” (06.04.2016)
Communication from the Commission (09.12.2015): Towards a modern, more European copyright framework
(Contribution by Fabian Warislohner, EDRi intern)