I need to thank the Register for publishing this article, “Looming EU copyright rules – tackling Google news article scraping, installing upload filters – under fire from all sides“. It’s written from their seemingly normal editorial line of, how shall we put it, “Copyleft Scepticism”. I am usually on the other side of this debate, but the language in this article is less offensive than usual. Actually it reminded me of a couple of issues which to me have dropped below the horizon, partly because whenever new tech. competes with old media the people who get lost and forgotten are citizens and users. In this article, below/overleaf I write about some of the less obvious side effects of the Link Tax, the cost of Licensing content for small users, question why we permit copyright protection for news, the corollary of weak fair use laws, the corollary of the economics of upload filters, and the impact of the growing unpopularity of Google. I published my diatribe on the bad economics and moral vacancy of the copyright business in on this blog in a post entitled, “A failure to serve Fans”. This article is meant to be a bit more targeted and a bit off-piste. …
In summary the lobbyists for the tech. companies are fighting with the lobbyists for the old media companies to try and tax the former to pay the latter and the battleground is the European Union’s new Copyright Directive.
I wrote about the corporate lobbying at great length in an article called, “Big Copyright strikes again“, in which I talk about Article 11, the link tax, and Article 13, the upload filters or censorship machine. Today, it seems that most of these lobbyists are walking away from the current “compromise” and 11 countries have voted against the current words in the European Council mostly because the current proposals are insufficiency protective of user’s and voter’s rights.
I don’t intend to Fisk their article, which makes the point that Google is being unreasonable in its behaviour as it denies content publishers potential advertising income but fails to examine the behaviour of the industrial content Companies whose product is as far as anyone alive today is concerned, never available for reuse and they are equally stupidly aggressive in the use of their monopoly power.
Taxing
I have some sympathy with the argument that news aggregators should licence the material from the original publishers but in a free market with strong copy right laws the market would be “imperfect”, the news publishers would set the price, although would we care if Google News went down the toilet? If stricter definitions of permitted extracts proposed at times by the coming law were to be adopted it might be that links to news from the search engines as opposed to the so-called news-aggregators would be taxable at the link publisher’s price and this would be a disaster for ordinary user’s search experience and the discussion & dissemination of news and political comment. Minimising the universe of search would probably be a bad thing, but search is a monopolistic business, made so by the economies of scale offered by the infrastructure providers and Google has a massive market share (over 90%) in European search provision.
If the link tax describes the requirement to licence material too strictly then it will jeopardise the effectiveness of search, this would probably be a bad thing, although we would soon get a search of search of searches solutions built and then we’d be asking who pays for the indexes, query cycles & spiders.
Another corollary is that if search providers have to pay for the links, that the news aggregators response has been to de-index news articles and small publishers inc. every hobby blogger drop off the index and can’t be found; they never grow big and in Europe Google has traditionally had a monoploy on search. What’s the point of freedom of speech, if no-one can hear you? This is also a problem for starting musicians; the music publishers want to monopolise the distribution channels so you only get heard if “discovered” by an A&R executive; they don’t want a third party search engines, or crowd voting systems helping us to find music we like that they don’t monetise.
Licenses
In the Register article, it is suggested that link User’s just get a licence. One of the, unaccepted recommendations of the Hargreaves Review was to create a licensing exchange, which he said would have to be designed by the license holders but while the law permit them to set whatever price they want and their business models are an exclusive author/publisher model this isn’t going to happen and small players and startups will be excluded. Writing this paragraph reminds me of the meeting I reported in “Only a musician sees the future“, which ended for me with a grumpy heckle and put down about the use of other’s photographs for free when it’s not possible to determine a market rate. A non-scarce supply of digital content makes optimal positive price setting hard/impossible.
Small players/hobbyists can’t afford to licence material and the big content owners don’t want to licence to the smaller players.
Copyrighting News
Actually placing Copyright on News text is highly questionable. The ECHR Article 10, on the Freedom of Expression says,
Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, …
and the Berne treaties on copyright exclude news. Citizens have a right to be informed, as do consumers. Why are we even considering this? I suppose not all media companies deal in news, but the lobbying push comes from news organisations and the Unions that organise in those industries. The cost of entry to politics should be zero. Everyone concerned should be aware that the Link Tax will accrue to publisher’s not authors; the Unions’ support for this is a form of trickle down, or an advanced militancy for a Labour Theory of Value pricing and royalty.
Weak Fair Use
In Europe, there is a much weaker fair use provision than in the USA; in the UK we are still arguing about the right to satire and amongst free speech advocates and campaigners, we remember the Dafurnica Case where Louis Vuitton sued Nadia Plesner,over her use of their trade mark in her piece of political art about wealth and poverty and Darfur. This wouldn’t have taken so long to resolve in the USA.
The US fair use laws and the 1st Amendment provide .a stronger legal framework in which strong rights can be established as among other things comment and criticism is protected. Much user authored content is a derived work and therefore protected by Fair Use but often not by its European equivalents. This is another area where the law favours the large and rich.
We should note that there is no restraint exercised by either side of this debate.
Upload Filters & Economics
The Register states that in terms of the upload filters that legislators cannot be too prescriptive as to the nature of the upload filters and many have written elsewhere about the inherent danger in allowing software to make these judgements, but the fact is that the Commission could author & provide the software. It’s not uncommon in Financial services for the regulator’s to provide, or even run, compliance software. This is less common in the Anglosphere but as I say, not uncommon in jurisdictions where financial services regulation is taken more seriously. This raises a bunch of questions about who pays for the software and we can observe from our experience in the UK, with the Digital Economy Act 2010 that once the media companies were forced to pay for the enforcement infrastructure they lost interest.
There is also a fear that placing this duty on social media sites will create a barrier to entry to the market, no one will be able to compete with YouTube.
It’s sadly true that many politicians see this issue solely as Google vs Europe, whether the victims are explicitly Bertelsmann, Alex Springer, Vivendi or News International, or unknown creatives, anonymous journalists or our children’s failed punk bands. Google is loosing popular support; they are earning a reputation as poor FLOSS citizens and, they don’t pay their fair share of taxes to European governments. I can see that there is some validity to the argument that they should licence some of the content they host but the ads are getting too intrusive, especially on mobile devices. They make an easy villain and most of us can live without Youtube but if we created a regulatory regime which damaged “Search”, then this would be a problem and we have many other policy tools to regulate and mitigate monopolies, including nationalisation.