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In September 2018 the European Parliament passed a swingeing piece of legislation that, if implemented, would completely change the way the internet works in the European Union. Officially named the Directive on Copyright in the Digital Single Market, but usually referred to by its most controversial component, Article 13, the proposed directive would make online platforms responsible for removing copyrighted content and have them foot the bill for hosting links to news articles.

Although it passed overwhelmingly in the European Parliament, with 438 votes in favour and 226 against, the directive has attracted the ire of the major online platforms. Chief among them is Google, which – perhaps more than any other company – stands to lose out if proposed legislation becomes law in the EU.


Earlier this week, Google’s vice-president of news, Richard Gingras, hinted in an interview with The Guardian that Google may have to shut down Google News if the directive was implemented in a way that meant the company had to pay publishers for hosting links to their articles. Gingras was referring to Article 11 of the directive, which states that publishers must obtain “fair and proportionate remuneration for the digital use of their press publications by information society service providers.” To its critics, however, Article 11 is usually referred to as “the link tax.”

According to Gingras, the final decision over whether or not Google News will stay in Europe depends on the exact wording of the legislation. “We can’t make a decision until we see the final language,” he told the Guardian. The legislation is currently bouncing between the European Commission, Council and Parliament who together will decide on its final wording before forwarding it to a final vote in the European Parliament in January 2019.

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But Phil Sherrell, head of international media, entertainment and sport at the law firm Bird & Bird, says that it’s unlikely the final wording of Article 11 will change its substance much. “However it is implemented, it is clearly intended to impose an obligation on news aggregators to pay publishers,” he says. “I don’t think that the form of implementation of this article will matter much to Google News; their service is very likely to be caught.”

What is Article 13? The EU's divisive new copyright plan explained Policy What is Article 13? The EU's divisive new copyright plan explained


Google has been in precisely this situation before, albeit it on a much smaller scale. In October 2014 the Spanish government passed its own “link tax,” requiring services that post links and excerpt of news articles to pay a fee to the Spanish Newspaper Publishers’ Association. In response, Google closed Google News in the country and removed Spanish newspapers from the service internationally.

Contrary to the legislation's aims, this link tax may have backfired upon the country’s publishing industry. “This national ancillary right clearly had a negative impact on visibility and access to information in Spain, since a major aggregator ceased to operate there,” wrote the EU Parliament in an report on the modernisation of copyright rules written in December 2016.

Julia Reda, an MEP who leads the opposition to the directive within the European Parliament says it's unlikely we'll see such an extreme version of the link tax as in Spain, where Google was required to pay publishers even if they didn't ask to be paid. “What we think is more likely is that publishers will have the choice to ask for Google to pay or not," she says.

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This plays into the hands of big publishers and leaves smaller ones out in the cold, Reda says. Large publishers are likely to negotiate free licenses with Google, while news aggregators may be unwilling to pay to include content from smaller publishers on their platforms. Four years ago Germany introduced a slightly watered down version of the link tax that ended up driving less traffic to websites than before its introduction.


So will Google have to recreate its Spanish tactic when it comes to the whole of the EU? Sherrell isn’t so sure. Publishers in Europe are already protected by copyright law, he says, which allows them to ask for articles to be taken down from Google News. Indeed, there is already a substantial legal precedent for this in the UK clarifying that news-scraping is copyright infringement. In a 2011 case between a business intelligence company called Meltwater and the Newspaper Licensing Agency, a Court of Appeal judge confirmed that newspaper headlines are subject to copyright, and that a news-scraping service republishing short extracts of articles can be in infringement of copyright.

What Article 11 will do, Sherrell says, is make it easier for European publishers to be paid by Google if the search giant uses some part of their articles. “The EU has been clear that this about trying to create additional revenue for the EU publishing industry, much of which is financially struggling,” he says. If Google News does remain open in the EU, it will likely be down to individual companies to negotiate their own payment terms with Google.

And this is where publishers have some tricky decisions to make. Although Google has driven down the advertising revenue that newspapers and online magazines often need to survive, it’s also a vital source of traffic for websites that are struggling to compete for readers’ attention with the likes of Twitter, Facebook and (Google-owned) YouTube. How much Google is willing to pay for content, and how far publishers will push the search giant to pay, remains to be seen.

Whatever happens, it’s unlikely that Google will pipe down about the Directive on Copyright in the Digital Single Market any time soon. In October, YouTube CEO Susan Wojcicki wrote a blog arguing that Article 13 “threatens to shut down the ability of millions of people [...] to upload content to platforms like YouTube.” Article 13 is the so-called “meme ban” part of the directive that requires content sharing platforms to take identify and take down any user-generated content that infringes on copyright.

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In November she followed up with a second blog arguing that Article 13 could lead to “unintended consequences”. "The parliament’s approach is unrealistic in many cases because copyright owners often disagree over who owns what rights," she wrote. "If the owners cannot agree, it is impossible to expect the open platforms that host this content to make the correct rights decisions."

When it comes to Article 11, the battle is now on to define how exactly the link tax will be put into effect. "The biggest fight between Parliament and Council is how much can be included before this link tax applies," Reda says. The European Council argues that even a single word could be protected by copyright, while the Council errs on the side of allowing individual governments to decide which parts of an article should be protected. Some, for example, argue that statements of fact shouldn't be copyrighted whereas original, creative, statements should be.

But for Reda, this is quibbling around the edges of a directive that barely tackles the questions it purports to solve. She's arguing for citizens to put pressure on their MEPs to vote down the directive when it heads back to Parliament in January. "I think we need to have fundamental opposition to this idea of introducing the link tax in the first place," she says.

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