One of the fundamental aspects of the Internet today is the ability to share information with others quickly and easily. Today there are hundreds of applications and websites dedicated to the ability of sharing information, but even in the Internet’s infancy, websites and web pages always had the ability to provide a hyperlink to another website. It’s still commonplace on the Internet to hyperlink to other sources on the Internet, whether it be a blog discussing the latest fashion trends providing an extract of an article on WWD and providing a link, people re-tweeting a news alert which displays the title of the article and cover image, linking to news articles on Wikipedia as a reference, or a news aggregate website, like Google News, which compiles news articles from various sources and provides hyperlinks for users to access the article. There is no doubt that providing snippets of articles and hyperlinking to the article on another website, and particularly news sources, is prevalent throughout the Internet.
However, the practice of linking and/or referencing a press publication online may now carry Copyright implications. Starting on October 5, 2017, the European Union will consider a proposal to its Copyright regulations which may impact the so-called “right to link.” The new proposal being considered is whether a fee should be payable to publishers when an online platform or service, such as Google News, reproduces short excerpts or snippet of a press publication created by the publisher. The proposal, which goes either by the name “ancillary copyright,” or “link tax” by opponents of the proposal, would impose a fee on any service which reproduces the excerpt or snippet of an article.
The intended purpose of the proposal is to generate additional revenue for news publishers, which have cited decreased revenues which have negatively impacted their ability to produce higher quality journalism. However, similar regulations already exist in some countries, namely Germany and Spain, and the results of these regulations have been immediate. In Germany, after being subjected to various lawsuits after the regulation was passed, Google News stopped displaying news snippets and images from articles produced by some publishers in Germany. In Spain, rather than paying the tax, Google shut down the service altogether. Despite there being reports that web-traffic to both Spanish and Germany publishers decreased after the respective “link tax” were passed, these regulations remain in place and may now encompass all member states of the European Union.
As this is an EU proposal, should it pass, are there consequences to a U.S. based company? Since the international barriers on the Internet are very low, a U.S. business can easily fall into the purview of EU regulations without much effort. The proposal defines “press publication” rather broadly as “a fixation 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.” It provides some guidance, stating that periodical publications which are published for scientific or academic purposes, such as scientific journals, should be excluded from the “link tax.” However, entertainment news websites that are regularly updated would be covered the by the proposal.
As such, if your business aggregates news media or provides the ability to generate snippets of news media (such as Reddit, Facebook, Twitter, etc.), it is imperative to monitor whether this new proposal in the EU passes. Assuming the proposal passes, businesses must take affirmative steps and decide whether it makes business sense to be subject to ancillary copyright fees. If hyperlinking to press publications is essential to the business, the business should consider paying licensing fees with publishers in an effort to avoid possible ancillary copyright issues.