A fairer and more sustainable digital ecosystem

As EU copyright reform continues, publishers are insisting the press publisher’s right will be good for business and won’t harm consumers. Angela Mills Wade of the European Publishers Council explains

A reform of EU copyright is underway alongside a reform of e-privacy. Neither is a dry political issue, both having major implications for the future of free and independent press. Both also face major opposition from companies that routinely divert publishers’ revenues to their own platforms and services.

Let’s look at copyright first. The European Commission has proposed making Europe’s press publishers beneficiaries of a new neighbouring right, known as the press publisher’s right, that would make it: easier to prevent the routine copying, reuse and monetisation of publishers’ content without permission; easier for start-ups to base their business model around using content legally; easier to bring companies wishing to use publishers’ content to the table to negotiate agreements; and easier to prove to tech giants that publishers’ content is not theirs for the taking without agreements, which should be mutually beneficial and easier to take legal action against copyright infringers.

In his state of the union address in 2016, European Commission president Jean-Claude Juncker said: “I want journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or commercially hyperlinked on the web.”

This proposal should not be controversial. The right is already enjoyed by music and film producers and broadcasters and it will not stop individuals from sharing links and content with friends and family as publishers already encourage them to do. Anti-copyright campaigners would have you believe this to be case, even though they themselves know it to be untrue.

The sad truth is that no-one who currently enjoys free-riding on publishers’ valuable content is going to want to see a press publisher’s right which brings legal clarity to a market that currently exploits the lack of recognition of the publishers’ legal standing.

The main problem for publishers is an economic one. Publishers’ content is not free. Employing, training, insuring and legally protecting journalists and financing the distribution of content on every platform and device is hugely costly. The status quo is unsustainable.

Over the last 20 years, publishing has changed almost beyond recognition. Newspaper newsrooms are tech hubs, teeming with journalists, editors, photographers, designers and data analytics experts all working alongside people with IT skills and roles undreamt of pre-digital. The modern newspaper is a platform and its output is 24/7 on every possible device.

Meanwhile, consumers have changed too. The Reuters Institute’s Digital News Report found that for every age group under 45, online news is now more important than television news. For 18–24s, social media at 28 percent comes out ahead of TV at 24 percent for the first time with print lagging behind at just 6 percent. Across the sample, 44 percent of respondents said that they use Facebook for news.

To start with, like everyone else, we made all our content freely available on the internet. The trends suggested that online advertising would more than pay for it. Then, the genie was out of the bottle and everyone expected the content to be free forever. But the advertising model on the open web no longer works for publishers, while others strip out the component parts of press publications online and monetise it for themselves. Readers who find news via search, social media and apps (67 percent of them) rarely click back to publishers’ websites. This explains why at least 85c of every euro spent on digital advertising goes to Google and Facebook, and more than 75 percent of the growth in ad revenues goes also to Google and Facebook because they can sell advertising around publishers’ content on their own sites—publishers cannot. Tech companies and content producers should be natural allies but the market has become non-transparent and dysfunctional.

Recognising press publishers as rights holders with their own legal standing for the entirety of their press publications will not, as some suggest, extend copyright itself, capture acts not currently illegal, or indeed compel any company to pay for a licence. It’s certainly not a tax as some suggest. Any commercial re-use of content in whole or in part without permission is already illegal under copyright law, but in the digital age nothing is easier than copying and distributing content illegally.

The law has become an ass and entire publications are scraped, copied and distributed on a massive scale by businesses who monetise this content. As the law stands today, only the individual articles and images are copyrighted. This was fine in days of print, but to defend their rights, publishers must attempt to track all uses of their content across the whole internet, issue notices in respect of each individual infringing use they discover and frequently prove the chain of title for tens of thousands of articles or photographs assigned to them by their authors. This is daunting, extremely costly, time consuming and practically impossible except in a small number of cases. The outcome is rarely better than a simple takedown of the infringing content, while damages and costs are vanishingly rare.

That is why publishers need legal recognition through a neighbouring right for their actual publications alongside the rights of the individual authors. This will give publishers a clear mandate to bring potential users of their content to the table and to effectively enforce. The publisher’s right provides the legal certainty that publishers own their content, and that no one can use this content for commercial benefit without permission. The publisher’s right protects publishers from piracy and parasitism, and paves the way for new, innovative and legal ways to monetise news content digitally. Whether advertising-funded and free for the end consumer, paid-for or licensed, healthy business models will come in all forms and shapes, making digital journalism more innovative and much stronger in the long term. It will allow all professional publishers large and small to thrive in the digital marketplace, which will support high-quality journalism for all citizens to enjoy.

But publishers are not merely businesses: our precious democracy depends on publishers’ ability to invest in our independent press, professional journalism,provide the ultimate fact-checking defence against fake news and to hold our leaders to account as well as to inform and entertain.

The proposal for a publisher’s right is likely to be decided by the end of 2017. Members of the European Parliament are currently voting on the draft EU copyright reform directive in various committees, then national governments will have their say.

The other major piece of legislation of critical importance to publishers is the draft e-privacy regulation, which aims to protect citizens’ confidentiality of their communications.

This goes to the heart of the data-driven advertising model online. We share the rationale behind the proposal to establish a level playing field between players in the market but we are afraid that, unchanged, it will create perverse and unintended consequences by favouring the same consumer-facing tech platforms that benefit from publishers’ content, especially those owning browsers. This will result in digital data being almost entirely concentrated in the hands of a few global companies. The proposed ePrivacy Regulation would thereby create another obstacle to European publishers’ ability to compete with Google and Facebook in particular.

There is already a General Data Protection Regulation, which comes into force in May 2018. This already requires strict conditions to be met for publishers to be able to process data. However, there is an inbuilt flexibility which allows for a practical, risk-based approach that we feel puts publishers back in control of collecting permissions from their readers: for themselves, but also for their trusted third parties.

Our main concern with the e-privacy proposal is that it requires that citizens be asked to consent to, or reject tracking when they first connect to the internet via a browser interface (the most popular of which are owned by the platforms with which we compete for access to our readers). This threatens to prevent Europe’s publishers from building trust directly with their readers, getting consent directly, delivering high-quality, tailored products and services and undermines their ability to generate advertising revenues to reinvest in professional journalism.

I cannot emphasise how high the stakes are for Europe’s publishers. If we cannot communicate directly with our readers about the specificity of data we need, we will not be able to attract advertisers, which will result in a lot less free news available online and affect media plurality negatively. According to the World Association of Newspapers, the daily circulation of newspapers in Europe is 85 million with 2,500 different newspaper titles published. An independent press relies on being economically strong to perform its role in society—to provide the kind of diversity these figures illustrate.

It is essential that we get the best possible regulatory framework for copyright and data for a fairer and more sustainable digital ecosystem that everyone can enjoy, consumers and tech giants included.
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