Google Versus the Internet: How the Largest Internet Platforms May Force the European Union to Rethink Its Latest Copyright Directive

By: Michael Bechtel

The European Union (EU) recently approved a directive in an effort to reform copyright law to make it relevant in the digital age.[1] Some particularly controversial provisions of the directive have sparked an intense debate over the last several years, including Article 15, known unofficially as the “link tax.”[2] This provision has led some who oppose the directive to stress that the provision will result in arbitrary censorship of free expression.[3] The right to freedom of expression and information is expressed as a fundamental right in the Charter of Fundamental Rights of the European Union.[4] The Charter further provides that 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.”[5]

Article 15 requires platforms, namely search engines, to obtain a license and pay the news company to reproduce text that contains more than “snippet” from a news article.[6] More specifically, Article 15 requires EU Member States to “provide publishers of press publications established in a Member State with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the online use of their press publications by information society service providers.”[7] Those rights consist of the right of authors “to authorise or prohibit direct or indirect, temporary or permanent reproduction” of their works “by any means and in any form, in whole or in part”[8] and the right for authors “to authorise or prohibit the making available to the public of their works.”[9]

Article 15 therefore means that companies that use other author’s headlines or quotes from the opening of the text will be required to pay the author or publisher in order to be able to display them.[10] Many fear that search engines, to avoid paying the “link tax” as required by Article 15, will simply stop displaying as much content, which would deprive people of “information at a quick glance.”[11] This fear is not unfounded, as Google even threatened to take down its Google News service in Europe as a way to protest the proposed directive.[12]

Before the current version was passed in the EU, Richard Gingras, Google’s Vice President of News, stated that the company was concerned about the requirements of Article 15 and “would not rule out shutting down Google News in EU countries if the legislation goes ahead in its current form.”[13] The news service even closed in Spain in 2014 because of similar requirements to pay royalties to Spanish Publishers.[14] Gingras did state that they “would not like to see that happen in Europe” and some doubted whether Google would actually shut down its news service over the EU as a whole, unlike what they did in the much smaller jurisdiction of Spain in 2014.[15]

Ambiguity in the language of Article 15 of the directive has caused additional concern, with only very vague definitions of some key terms.[16] Some specific elements of Article 15, such as the length of “very short extracts of a press publication,” to which the requirements of licensing and payment do not apply, are entirely undefined within the directive.[17] Each member state is left to enact its own legislation within two years that meets the directive’s ambiguous requirements.[18]

France was the first EU member state to implement the provisions of Article 15 of the new copyright Directive.[19] The new law of France requires the platforms to obtain authorization from the publisher before reproducing any part of the publication on the platforms’ sites and requires the publishers to then pay “an appropriate share of the revenues” that they receive from the platforms.[20] This has already caused further issues and controversy, especially for large search engines used in the EU, namely Google.[21] After the law came into effect, Google stated that it would refuse to pay publishers merely to have their content listed in their news search results, claiming that they “sell ads, not search results.”[22] Google instead opted to merely limit the amount of material it showed in the display rather than pay to show short extracts from the news articles, thereby reducing the “clickability” of the article.[23] France has since ordered Google to negotiate payments with news agencies and press publishers to display those short extracts in the search results.[24] This was largely due to Google’s dominant position in the market and a large majority of press publishers granting free licenses, likely to not reduce the “clickability” of the articles and help retain the amount of traffic.[25]

The intention of the Directive is ultimately to help provide publishers, and ultimately authors, with additional opportunities to receive payment for the content they produce.[26] The potential for platforms to merely remove those short extracts in order to avoid paying publishers effectively nullifies the intent of the Directive.[27] Similarly, the potential for large sites like Google to merely remove their news service from the EU would similarly frustrate the purpose of providing additional means of compensation for publishers because many rely heavily on search engines for traffic to their own publishing sites.[28] Removing large search engines and other similar platforms would additionally frustrate the rights laid out in the Charter of freedom of expression and information.[29]

While it remains to be seen how most of the EU member states implement the Directive into their own national laws, we can already see the potential for the very purpose of the directive, fairer remuneration to authors and publishers, to be frustrated by the internet platforms most dominant in the industry. In light of both this and the potential for conflict with the right of freedom of expression and information, it will likely not be long before the Council of the European Union returns to the drawing board to draft a new proposed directive that more adequately furthers its goals without treading on the rights of EU member states’ citizens.

#google #europeanunion #copyright #publishers #freedomofexpression #freedomofinformation

[1] See Francesco Magon, European Copyright Directive: What Do Articles 15 and 17 Mean?, Leaders League (June 24, 2019), https://www.leadersleague.com/en/news/european-copyright-directive-what-do-articles-15-and-17-mean; Directive 2019/790, of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights in the Digital Single Market and Amending Directives 96/9/EC and 2001/29/EC, 2019 O.J. (L130) 92 [hereinafter 2019 Copyright Directive].

[2] See John A. Polito et al., INSIGHT: Explaining the New EU Copyright Directive, Bloomberg L. (May 6, 2019, 4:00 AM), https://news.bloomberglaw.com/ip-law/insight-explaining-the-new-eu-copyright-directive. Article 15 of the directive was formerly known as Article 11. Id. The various discussions surrounding this provisions use either article number; for our purposes here, the “link tax” provision will be referred to as “Article 15,” though the sources may refer to is as “Article 11.” Another highly controversial and widely discussed provision of the copyright directive is Article 17 (formerly Article 13), which was discussed in Michael Bechtel, Algorithmic Notification and Monetization: Using Youtube’s Content ID System as a Model for European Union Copyright Reform, 28 Mich. St. Int’l L. Rev. 237 (2020).

[3] See Cory Doctorow, The Internet is Facing a Catastrophe for Free Expression and Competition: You Could Tip the Balance, Electronic Frontier Found. (Jan. 13, 2019), https://www.eff.org/deeplinks/2019/01/internet-facing-catastrophe-free-expression-and-competition-only-europeans-can [hereinafter Doctorow, Catastrophe].

[4] Charter of Fundamental Rights of the European Union art. 11, 2012 O.J. (C 326) 391, 398.

[5] Id.

[6] See Cory Doctorow, The European Copyright Directive: What Is It, and Why Has It Drawn More Controversy Than Any Other Diretive in EU History?, Electronic Frontier Found. (Mar. 19, 2019), https://www.eff.org/deeplinks/2019/03/european-copyright-directive-what-it-and-why-has-it-drawn-more-controversy-any [hereinafter Doctorow, Controversy]; Natasha Bernal, Article 11 and Article 13: What You Need to Know About the New Copyright Directive, Telegraph (Apr. 1, 2019, 7:32 AM), https://www.telegraph.co.uk/technology/0/article-11-article-13-need-know-new-copyright-directive/.

[7] 2019 Copyright Directive, supra note 1, art. 15(1).

[8] Directive 2001/29/EC, of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001 O.J. (L 167) 10, art 2.

[9] Id. art. 3(1).

[10] See Bernal, supra note 6.

[11] Id.

[12] See id.

[13] Lucy Handley, Google Warns Its News Site Could Shut Down in Europe if a New ‘Link Tax’ Goes Ahead, CNBC (Nov. 19, 2018, 12:04 PM), https://www.cnbc.com/2018/11/19/google-warns-news-could-close-in-europe-if-new-link-tax-goes-ahead.html.

[14] See id.

[15] Id.

[16] See Doctorow, Controversy, supra note 6.

[17] See 2019 Copyright Directive, supra note 1, art. 15(1).

[18] See Andrew P. Bridges et al., The EU Copyright Directive: Potential Copyright Liability and a “Best Efforts” Standard for Platforms, Jdsupra (Jan. 27, 2020), https://www.jdsupra.com/legalnews/the-eu-copyright-directive-potential-84751/.

[19] See id.

[20] Id.

[21] See Connor Jones, Google Refuses to Pay Publishers Under the Article 15 Copyright Directive, ITPro (Sept. 26, 2019), https://www.itpro.co.uk/policy-legislation/34500/google-refuses-to-pay-publishers-under-the-article-15-copyright-directive.

[22] Id.

[23] Id.

[24] See Steve Dent, France Orders Google to Pay News Companies for Showing Article Extracts, engadget (Apr. 9, 2020), https://www.engadget.com/france-google-scraping-stories-snippets-104038211.html.

[25] See id.; Jones, supra note 21.

[26] See Jones, supra note 21.

[27] See id.

[28] See Dent, supra note 24.

[29] See Doctorow, Catastrophe, supra note 3.