A European Commission proposal to give new copyright-like veto powers to publishers could prevent quotation and linking from news articles without permission and payment. The Copyright for Creativity coalition (of which EFF is a member) has put together an easy survey and answering guide to guide you through the process of submitting your views before the consultation for this "link tax" proposal winds up on 15 June.

Tell the EU to kill the copyright zombieSince the consultation was opened, the Commission has given us a peek into some of the industry pressures that have motivated what is, on the face of it, otherwise an inexplicable proposal. In the synopsis report that accompanied the release of its Communication on Online Platforms, it writes that "Right-holders from the images sector and press publishers mention the negative impact of search engines and news aggregators that take away some of the traffic on their websites." However, this claim is counter-factual, as search engines and aggregators are demonstrably responsible for driving significant traffic to news publishers' websites. This was proved when a study conducted in the wake of introduction of a Spanish link tax resulted in a 6% decline in traffic to news websites, which was even greater for the smaller sites.

Seemingly prejudging the outcome of the present consultation, the Commission promises "to achieve a fairer allocation of value generated by the online distribution of copyright- protected content by online platforms providing access to such content" in the next package of copyright amendments that are to be introduced later this year.

Platforms under threat

Apart from seeking special new veto powers, the large copyright rights-holding industries have also been expressing frustration with intermediary safe harbors, which are essential to all user generated content platforms. The Commission echoes this in writing:

Right-holders ... point to the gap between revenues generated by licensed services and those generated by online platforms that rely on what right-holders claim is legal uncertainty to negotiate licensing terms below the market value or to refuse to buy licences. Numerous right-holders from other sectors (images, audio-visual, publishers and to a lesser extent, broadcasters) report problems with the unauthorised or under-licensed use of their content by some online platforms. ... Most right-holders, their associations, and notice-providers indicate that they have encountered flaws in the present liability regime.

For the time being, the Commission has proposed no major changes to the existing European intermediary liability regime, other than suggesting that "coordinated EU-wide self- regulatory efforts by online platforms" may be needed, and foreshadowing "the need for guidance on the liability of online platforms when putting in place voluntary, good-faith measures to fight illegal content online."

However, in its associated Audiovisual Media Services Directive proposal which applies to video sharing platforms, it goes further, proposing that "Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to violence or hatred." If accepted, this could be the thin end of a wedge that slips into the regulation of other online platforms, on the theory that any platform that "actively hosts" or "organizes" user content is not entitled to full safe harbor protection. This in turn will limit those platforms' willingness to accept user content, which could chill speech and stifle grassroots creativity. This is why the Manila Principles on Intermediary Liability asserts that "Intermediaries should be immune from liability for third-party content in circumstances where they have not been involved in modifying that content."

For now, the only elements of the above proposals that remain open to public consultation are those on the link tax, and on the "right of panorama", a copyright exception that exists in some (but, scandalously, not all) European countries, allowing the photography of public monuments and works of art. EFF has already contributed to a response to the submission, but since the Copyright for Creativity survey makes it so easy, there's no reason why you can't do the same, in order to send a strong message that a new link tax payable to publishers is both unnecessary and harmful.

This post was updated on June 14, 2016 to add a link to the synopsis report from which the quoted passages from the European Commission were drawn.

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