Publishers are seeking to expand the copyright restrictions they can impose on news platforms, in the latest example of a phenomenon known as “copyright creep.” That kind of creep happens when lawmakers lose sight of the central purpose of copyright: to ultimately grow the cultural commons by ensuring that authors and their heirs can collect compensation for specific uses of their works. In line with that purpose, copyright is not a fundamental right so much as a bundle of restrictions we allow creators to impose for limited times, subject to numerous exceptions such as fair use which are intended to ensure that those restrictions don't impede new expression and innovation. Copyright creep undermines that a delicate balance.

In essence, copyright creep is an effort to expand copyright restrictions and/or allowing new parties to impose them in new ways. For example, civil law countries such as Europe and Latin America, may allow people who aren't traditional rightholders to exercise copyright-like restrictions, calling them “related rights” (or “neighboring rights”), as distinct from “authors' rights.” In the United States, we are more likely to give traditional rightholders new powers, such as the ability to sue people who circumvent technological protections on a work.  These experiments are dangerous: copyright and related rights are powerful tools, and the farther they reach the more likely they are to cause collateral damage to speech and innovation.

We've written previous posts explaining the dangers of extending copyright powers --including the effective power to veto or censor a work -- to performers and broadcasters. This post turns our focus to the case of publishers, and particularly to that of press publishers, who are the latest in a line of claimants throwing their political weight behind the copyright creep.

Press Publishers in Europe Demand New Restrictions

Just as efforts to extend the copyright term began in Europe, so too have efforts by press publishers to acquire new copyright-like powers. The European Commission has opened a public consultation on whether new related rights should be afforded to press publishers, to buffer them against the economic upheaval they are experiencing with the move to digital. This upheaval—which is quite real—has seen circulation numbers of printed publications fall, as readers turn to online sources for news. The funding models that support these online sources are different, and presently less lucrative for publishers, than traditional newspaper publishing.

The suggestion that these challenges could be addressed by changes to copyright law follows upon the introduction of laws in Germany and Spain to impose new restrictions known as “ancillary copyright.” These laws require payment to news publishers when excerpts accompanying links to their stories are published by third-party online aggregators, such as Google through its Google News service. Such brief excerpts would normally be free of copyright restrictions, under national copyright exceptions for quotation or fair dealing; ancillary copyright laws override this with new restrictions that uniquely benefits news publishers.

However, these laws have swiftly proved a monumental failure. In Germany's case, publishers waived their new powers when the alternative was that Google would simply stop publishing excerpts from their news stories, thereby cutting off their most important source of traffic. In Spain, lawmakers thought they could prevent a similar result by prohibiting news publishers from waiving their entitlement to compensation. But this tactic dramatically backfired, to the detriment of both users and publishers alike, when Google simply withdrew its Google News service from Spain altogether.

It is quite unclear why a similar Europe-wide law would achieve different results, nor why news publishers, alone, should be the beneficiaries of a special override to the balance that copyright law strikes, carved out from the public's right of quotation or fair dealing.

But from the publishers' point of view, their reasoning is quite simple—if music producers and performers, and most recently audiovisual performers, have gained new special neighboring rights of their own, why not them too? And, indeed, the more copyright creeps outward to include ever more beneficiaries, the more difficult it becomes to answer why one more beneficiary should be excluded.

Once we lose sight of the guiding principle that copyright is an incentive for promoting creativity, there is no clear reason why news publishers can't demand special payments from others in the value chain. Like the call for special broadcasters' rights, it simply becomes another arbitrary demand for special interest regulations to prop up a powerful industry that finds its established business models threatened by technological change.

We don't mean to minimize the challenges that news publishers face—adapting to change is a tough ask; those who are quick to innovate may benefit (Medium, Buzzfeed) while others (Life, the New Republic) struggle and may fall. In the face of such struggle, it is natural for news publishers to seek a lifeline. (We see exactly the same behavior in other creative sectors also—for example, the strongest opposition to the European Commission's plans to dismantle artificial national borders that restrict cross-border licensing of audiovisual content has come from filmmakers, whose business model relies on old-fashioned country-by-country licensing deals.)

But the answer to the challenges of technological change is not denial, but adaptation. The successful business models that characterize today's content market today—such as iTunes and Netflix—would not have come into being at all if new special interest regulations had been raised to protect incumbent music and movie publishers against Internet-based competition. Neither should news publishers be offered such protections that discriminate against nimble-footed competitors.

If there is ever a case for the introduction of new copyright-like restrictions, news publishers haven't made that case out. We fully agree that publishers should be recompensed for their work. However, it's quite a stretch from recognizing the value of that work, to rewarding endowing them with separate legal powers that operate as an arbitrary tax on Internet platforms. Existing copyright law is already designed to enable news publishers to compete on a level playing field with other content publishers. We must strongly resist calls by interest groups to augment it with new restrictions that benefit them alone.

The European Commission's consultation on new rights for press publishers, which is also a consultation on the possible European extension of the “panorama exception” that permits photography of public works of art and architecture, will remain open until June 15.

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