The EU is targeting platforms for copyright violations, but could end up hurting publishers, too

Part of the purpose of the reform is to give publishers the same legal rights online as film and music producers, according to Angela Mills Wade, executive director at the European Publishers Council. Under the new proposal, aggregators and platforms don’t necessarily need a copyright license to display publisher content, just some form of contract with the publisher, like a revenue share, she said.

“Publishers will have their right and their own legal standing. It’s up to them what they do with it,” said Mills Wade. “It boils down to whether you want an internet where those who invest in production are incentivized to continue to invest in production, or a law that facilitates free riding and allows companies in this gray area of scraping and reusing content to continue.”

The concern is that smaller publishers, those who rely on news aggregators and platforms for a lot of their audience, will get cut by the tech platforms that will be wary of breaching the law. Those standing to benefit would be large publishers, those with recognizable brands and engaged direct audiences, which have an ax to grind with platforms like Google and Facebook sharing their content without receiving their fair reward.

“It’s hard to find anyone in favor of it,” said Struan Bartlett, founder and CEO of publisher aggregator NewsNow, who has been campaigning against the directive for over a year. “Publishers we talk to aren’t; users aren’t calling for it; web pioneers aren’t in favor. It’s bizarre it’s being pushed forward.”

In Germany, where publishers have flexed more muscle with tech platforms about copyright, Bartlett acknowledged there have been difficulties in enforcing specific publisher rights, but opponents feel expanding this to the EU level may not be the answer. “It’s European medicine for a German problem,” he said. “Article 11 is a sledgehammer to crack a nut. These sweeping new powers are overkill.”

There have been criticisms of the reform: Opponents think it’s too vague about how “digital use” will be measured so publishers can levy fees, although the exact wording of the mandate will be more fully defined later. Earlier, similar laws were implemented at the national level in Spain and Germany, but unsuccessfully. Largely, said Mill Wade, this was because the laws were leveled too narrowly at news aggregators.

“It isn’t practical. In Brussels, there’s no clear process or understanding of how the internet works and how that comes into the political decision-making process,” said an independent publishing consultant. “They are in their own filter. They have their lobbies, pressure groups, data activists and publisher organizations. But the outcome is far from adequate to daily business. They behave like aliens from a publisher perspective.”

There have also been misconceptions. On June 26, European Parliament member Giorgos Grammatikakis, sent an email, seen by Digiday, to other parliament members debunking myths surrounding Articles 11 and 13 of the copyright reform. In it, Grammatikakis outlined what the reform would not do: censor users from sharing links, filter the internet and, thankfully, kill off memes.

As with all legislation, a new law won’t be passed tomorrow. Sources say the reform — which was first proposed in 2016 — could be agreed on by the end of this year, giving member states 12 months before they need to amend national law. “[Last week’s vote] was an important hurdle for the legislation to get over, but it doesn’t tell us what the final text will be,” said Robert Guthrie, partner for international law firm Osborne Clarke. “That will have a big impact on how much power is given to the press publisher.”

“There’s the big challenge in terms of how you regulate the internet. It’s very fast-moving. Process at the EU level is very slow,” he said. “By that point, the product might have moved on. The commercial strengths of the parties might have moved on.”