This has been popping up in my Timeline on Twitter a lot, mainly because Google are very insistent I know about it, and also that it will apparently “affect how I find news online”. Well, they managed to annoy me by pushing that a little too far, so let’s go back to what I used to do for a living and actually analyse the regulations.

The background

The European Commission (EC) have proposed a new peice of legislation excitingly entitled: “DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market” which you can read here in English (PDF) (and use this link if you want it in another langauge/format etc). This is part of the efforts to harmonise the overall environment with the EU (and EEA) to:

“to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU”

This is in addition to the existing legislatation, as with many (if not all) parts of EU law it is built in layers reusing and enhancing existing parts like pretty much any other legislative system.

This has been rumbling for a while, firstly consultations on copyright in 2013/2014 and then consultations on the role of publishers in 2016, alongside discussions by the EC with various stakeholders (incl Member States), which has culminated in the proposal as above in 2016. The European Parliment (EP) then amended itNote this is a live document, so is being discussed/updated/other. The current state is documented at the EP here – with the summary status being a trilogue between the European Council (Council), EC and EP around the amendments being proposed by EP.

The beef!

Within the proposal – the main sticking points have been Articles 11 and 13, in summary (using the amended version via the EP as above):

  • Article 11 – ensures press publications are protected in terms of reproduction and their ability to make their content available, and can also obtain “fair and proportionate remuneration” for the digital use of their content by “information society service providers”. This doesn’t extend to links to content that are “accompanied by individual words” or use in legitimate private and non-commercial use by individuals. Also this can’t be used against the creators of the content. This protection lasts for 5 years from the 1st day of the January following publication (the EC wanted 20…).
  • Article 13 – This got hacked up pretty badly by the EP – in summary this talks about the agreements between online content sharing services and the rightsholders and lays out a fairly detailed set of requirements for review, arbitration, dispute resolution, and also that this shouldn’t require any information contrary to the General Data Protection Regulation (GDPR). The EP have proposed Article 13a to talk about setting an independent body to help resolve disputes, and Article 13b explicitly calling out automated indexing, referencing (search engines!) of visual works as subject to having to provide fair remuneration. It does however say that the EC will have a dialogue with stakeholders on best practises to ensure protected works are… “protected”.

But there’s more…

Interestingly this seems to miss some other  points –

  • Article 12a – calls out sports organisers as having protection in a similar stance to Article 11, but without any allowance for reproduction and also no time limit?
  • Article 14 – the first instance, the EP didn’t rename the orignal – outlines the “Principle of fair and proportionate remuneration”, albeit without actually saying what it is, suffice to say it should be contractual and based on the “mode of exploitation”. Unless of course you do something like label all your content with a “non-exclusive usage right for the benefit of all users free of charge”.
  • Recital 37a – added by the EP – talks a lot about who should be an online content provider, and hands cutouts to small firms, and a lot of sensible use cases like online shopping portals, or private use (non-public) services.

And more importantly definitions:

 ‘press publication’ means a fixation by publishers or news agencies of a collection of literary works of a journalistic nature, which may also comprise other works or subject-matter and constitutes an individual item within a periodical or regularly-updated publication under a single title, such as a newspaper or a general or special interest magazine, having the purpose of providing information related to news or other topics and published in any media under the initiative, editorial responsibility and control of a service provider. Periodicals which are published for scientific or academic purposes, such as scientific journals, shall not be covered by this definition;

and

online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject-matter uploaded by its users, which the service optimises and promotes for profit making purposes. Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive;

So what?

It basically means that any business model which relies on aggregating content “available to the public” from someone else is going to have to pay the sources in the same manner as any other supply/value chain. It potentially fixes issues around the business models in use. There are some exceptions and those are called out – most interesting being the scientific journals.

However… it’s far from a done deal, the current discussions run the risk of being derailed by the upcoming EP election which will potentially replace the personnel and therefore delay the discussion. There are also a lot of vagaries in the overall text that will need ironing out:

  • when does individual words become “reproduction”?
  • how do you know if the 5 years is up? filestamps lie.
  • how would you identify copyright? – existing systems have issues around false positives
  • is there going to be ongoing guidance around interpretation (e.g. is Steam to be treated like Amazon under the definition of “online content sharing service provider”?) espiecially “legitimate” use by an individual?

It is possible that there may be some overspill, and exactly how you “share” links may change. Email is private and out of scope, twitter… eh… we’ll see. Also what about third party systems you use “in private” to stream notifications from one site to another or publically (commerical sites, using multiple aggregators)?

And in conclusion…?

Google is prevented from freeloading on the back of news content from other companies. Google is a “broker”, a “middle-man”, a “facilitor”. They need “content” to drive some aspects of their business, except the content isn’t theirs. This is a real issue for the “News” tab under their search box. It doesn’t stop google from indexing the news sites, but it does stop google being the “front page”. Essentially it will reduce the value of “clickbait” headlines. It will also affect their other companies – particularly YouTube – where they will have to invest in screening the content, with a “human” (actual term in the proposal – Article 13(2b)). It will make YouTube responsible for the content it hosts in respect of ensuring content rights are upheld, bringing us back to a picture where the website owner is ultimately responsible for what they host and meaning that using thousands of un(der)paid creators will probably cease being a model again reducing clickbait, and meaning YouTube can’t profit (as much) from the work of their users.

I’d say that was a big win for the users and certainly for the value of news which has been under fire for quite a while now, so I’m really not going to feel too bad about telling Twitter to stop showing me that Google ad.

Wired has a good write-up and you might also get a view from Music Business Worldwide.