One of the two very controversial proposals in last year’s EU Copyright Directive fight was the “link tax,” which would require licenses for links to news-sites that contained even a few consecutive words from the article or headline — links and excerpts that would otherwise be considered fair dealing under EU law.
The rule squeaked into law last March by five votes (and later, ten MEPs said they’d been confused and had pressed the wrong buttons). Now, the EU member-states have to turn the rule into domestic law, and thus far, it’s a shitshow.
The latest installment comes from Germany, which was also where the proposal for a ban on linking without permission originated, courtesy of Germany’s aristocratic newspaper families, who wield enormous political influence.
The proposed German implementation would limit links to news sites to quoting the headline alone, accompanied by a maximum of 3 seconds of video and/or a 128px x 128px thumbnail. This would apply to memes, mashups, and summaries of the article in directories such as Google News or websites like this one.
This is likely to be enforced by mandatory upload filters, which are required under Article 17 of the Directive, and the German rules are likely to end up being EU-wide, given the complexity of setting up country-by-country filter rules.
You can send comments on this proposal to konsultation-urheberrecht@bmjv.bund.de (the deadline is Jan 31).
The proposal states that the new ancillary copyright does not apply to hyperlinks, or to “private or non-commercial use” of press publishers’ materials by a single user. However, as we know from the tortured history of the Creative Commons “non-commercial” license, it is by no means clear what “non-commercial” means in practice. Press publishers are quite likely to insist that posting memes on YouTube, Facebook or Twitter — all undoubtedly commercial in nature — is not allowed in general under the EU Copyright Directive. We won’t know until top EU courts rule on the details, which will take years. In the meantime, online services will doubtless prefer to err on the side of caution, keen to avoid the risk of heavy fines. It is likely they will configure their automated filters to block any use of press publishers’ material that goes beyond the extremely restrictive limits listed above. Moreover, this will probably apply across the EU, not just in Germany, since setting up country-by-country upload filters is more expensive. Far easier to roll out the most restrictive rules across the whole region.
Germany Wants To Limit Memes And Mashups Derived From Press Publishers’ Material To 128-by-128 Pixels In Resolution, And Three Seconds In Length [Glyn Moody/Techdirt]