The European Commission is preparing to target people who hyperlink on the internet, forcing search engines and news portals to pay media companies for linking to their content.
According to a draft communication on copyright reform leaked this week, the Commission is considering putting the simple act of linking to content under copyright protection.
Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.
Ancillary Copyright Law reloaded: A new path towards the old goal
In the draft at hand, the Commission bemoans a lack of clarity about which actions on the Internet need a permission and which ones do not: in legal terms, they put forward the question when something is an ‘act of communication to the public’.
This is a reference to a ruling of the European Court of Justice in the Svensson case. While on one hand the judges established that the simple act of linking to publicly available content is no copyright infringement, because it does not reach a new public, a few questions were left open bis this ruling, however: For example when exactly content can be seen as accessible by the public and how e.g. links surpassing paywalls are to be treated.
The key point is that the Commission frames ancillary copyright laws for press publishers as an attempt by a few member states to solve this problem legally. Instead of criticising the substance of these laws they only bemoan the possible ‘fragmentation’ of European law by these different implementations. A coherent European answer to the problem behind all this is a necessity. The reform of the executive rights on an EU-level is apparently another attempt to fulfil the goals also pursued through the introduction of ancillary copyright law.
However, the depiction of this goal by the Commission is plainly wrong: Ancillary copyright laws do not answer the questions poised by the European Court of Justice. It is rather an attempt to cross-finance struggling publishing houses by asking thriving internet companies such as google to pay up for linking to publicly available articles – to give price tags to exactly the same act of linking that has been clearly pronounced non-infringing by the European Court of Justice.
The Commission seems to want to reach the same by defining exclusive rights further, so the ‘clarity’ it seeks can only mean: sheer linking to content protected by copyright shall be seen as providing access to them, and require therefore explicit permission. This plan is a departure from the basic principle behind the Svensson ruling, which permitted free linking on the Internet, without the need for active examination of whom the linked material belongs to.