Google Tax And The EU’s Trend Towards Ancillary Copyright
Apr. 8, 2016 (Mimesis Law) — How is this EU-wide ancillary copyright idea still a thing? EU Digital Commissioner Günther Oettinger certainly thinks it’s still worth exploring. In fact, he said that it’s his “personal ambition to create a modern European ancillary copyright law for press publishers by the end of 2016.”
To put this into context, the EU copyright regime is currently being reviewed, with the aim of bringing the 2001 directive in line with advances in internet-based cross border exchange of knowledge and culture. A final proposal is expected in September or October 2016, with consultations ongoing. A report was adopted by the European Parliament in mid-2015, detailing the necessary steps to achieving an up to date copyright regime, which in turn underwent a number of consultations and amendments. One particular amendment has sparked controversy and is considered by some as the beginnings of an EU-wide ancillary copyright law.
Ancillary copyright laws essentially allow news publishers to collect fees from online search engines, like Google, for listing their content in search results. This has become known as the “Google tax”. Versions of these ancillary copyright laws were implemented in Germany and Spain a few years back, with results that could only be described as less than ideal.
In 2013 Germany introduced ancillary copyright laws which required search engines to pay a fee for using “snippets” of articles in search results. Google accordingly announced it would only list titles of articles in its results, which subsequently lead to a drastic decrease in traffic to the publisher’s news sites. Bizarrely, the publishers responded by exempting Google from paying the fee and only collecting fees from other search engines. This preferential treatment of Google was said to strengthen its position in the market, while at the same time facing antitrust investigations by the Commission. Spain then imposed a similar compulsory fee (compulsory in the sense that the publishers could not even waive the fee), to which Google responded with a permanent shutdown of the Spanish version of Google News in December 2014.
Even though ancillary copyright laws have resulted in no financial benefit to publishers, and has only strengthened Google’s position in the market, Oettinger recently said that he is still “open” to the idea of a EU-wide ancillary copyright law and that Spain and Germany’s national laws would serve as models for its implementation, even favoring the Spanish over the German laws. Well Europe, enjoy Google News while it lasts.
Those arguing in favour of ancillary copyright laws often come back to one justification – fees collected under this regime will help to stabilize the struggling publishing industry. Surely the answer isn’t monetizing links to articles that are freely available anyway? Aggregators such as Google News, that increase traffic, should surely be a blessing to an industry that generally seems to view technology as an obstacle and not an opportunity. Wolfgang Blau, former editor in chief of Zeit Online, former Director of Digital Strategy at The Guardian and now chief digital officer at Condé Nast International, is critical of ancillary copyright laws in Europe, summing up the complexity of the situation in the lead up to the Commission’s proposal in autumn 2016:
“The very few large and international publishing houses […] use the ancillary copyright as a gesture of power towards Google. They want to prove that despite their dwindling journalistic influence, they are still in a position to instrumentalise parliaments in Europe for their purposes and to create obstacles for unwelcome competition. In my opinion, those few large companies have never been after the ancillary copyright per se, but after strengthening their future bargaining position vis-a-vis American online intermediaries in other matters. I often wonder how many parliamentarians have actually understood how they have been instrumentalised, and whether the various parties would be willing to participate in these schemes if Google were a European company. Personally, I couldn’t care less about Google, but I do care about the Internet.”