Small And Medium Publishers Protest EU Link Tax, Which Will Harm Them, While Helping Only Large Publishers

As the EU continues to march towards wrecking the internet with a variety of dangerous proposals in the EU Copyright Directive, many are desperately trying to explain to policymakers there just how much damage they are going to do and asking them to take simple steps to prevent the worst possible outcomes. While most of the attention has been on the awful Article 13 upload filters, the Article 11 link/snippet tax is almost as bad.

Of course, to hear EU supporters of Article 11 explain things, such a brand new "publisher's right" is necessary to help save media organizations who have been undermined by the basic business model of the internet. This is already insanity (and, as we've pointed out, when both Germany and Spain passed similar laws, it harmed media sites, and did nothing to increase their revenue), but if that were the case, you'd expect most media organizations to be totally on board with the plan. That is not the case. A few of the very largest media sites are totally on board (with German publisher Axel Springer being the leading voice in support). But midsize and small publications recognize just how damaging this will be and they've now sent a letter to policymakers, who are working to finalize the Directive, calling out how the existing language puts them (the very entities policymakers claim this law will support) at great risk:

... we've noted with deep regret that both the European Council and the European Parliament are advocating for the creation of a new publishers' right (Article 11 of the proposed Copyright Directive) instead of other alternatives, such as the presumption of rights, put forth by a wide range of stakeholders.

If the European institutions go ahead with the creation of such a right, we believe that it should incorporate key provisions that at least reduce some of the collateral damage to small and medium-sized publishers we expect, including with a view to transposition into national law.

Of particular concern is the idea that Article 11 might require licenses in order to index news content. That means even if a smaller site does not wish to be compensated by a news aggregator -- it has to set up a licensing scheme that requires payment. In effect, this outlaws Creative Commons and numerous business models and distribution strategies for the internet.

We would like to highlight a highly problematic provision adopted by the European Parliament: Article 11 (1) and Recital 32 introduce a remuneration principle which prohibits publishers from allowing indexing of their content online without remuneration. Recital 32 means that news aggregators, podcast aggregators and search engines would not be allowed to serve links with individual words and short extracts of news publisher content without a bespoke agreement stipulating payment - even when a news publisher wishes to be included.

We adamantly believe that any publisher's right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers' websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Limiting publishers' freedom in this way will result in detrimental consequences for us, as shown by a similar experience in Spain. The introduction of an unwaivable ancillary copyright in favor of publishers in Spain caused small publishers to lose as much as 15% of their web traffic. This is estimated to have cost the Spanish news publishing industry a10 million a year.

The key issue here is that if news aggregators -- who send sites plenty of traffic -- are required to set up licensing schemes and pay everyone they link to, it is most likely that they will only wish to negotiate with a few larger players, and simply avoid linking to smaller sites, if they continue linking at all. This will disproportionately benefit those large sites. And this would be true even if (as many predict) brand new collection society middlemen show up to collect and distribute such money.

We've already seen this in action. In the US, it's been widely reported how collection society ASCAP simply finds it impossible to track the number of plays of smaller, independent artists, and thus distributes their share to the most popular artists. It is literally taking from the smallest, independent artists, and giving their royalties to the wealthier and more successful ones. The same is likely true of any scheme for reimbursing news sites as well.

Hell, we're a news site here that is always open to new revenue streams, but I find it offensive that the government should step in to try to force other sites to pay us, and expect that even if it did apply to us, it would be such a huge bureaucratic clusterfuck that it wouldn't even be worth the effort to make sure we got paid.

So, really, the various policymakers in the EU should be required to answer a fairly simple question: if so many media sites are directly against this policy, and policymakers are claiming its necessary to help those very sites... then who are they really doing this for in the first place?