[co-author: Fabia Cairoli ]
On 26 March 2019, the EU Parliament voted in favour of the new Copyright Directive, “to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU” (Communication from the EU Commission of May 6, 2015).
For an overview of the main issues regarding the Copyright Directive and its status of enforcement, you can have a look at our French and German colleagues’ article (access at this link).
This post is specifically devoted to Article 15 (previously, Article 11), which has introduced the so-called link tax, albeit such expression is incorrect: indeed, acts of mere hyperlinking do not constitute a source of revenues even after the final approval of the Copyright Directive (and no tax has been actually imposed).
Link-tax: the content of Article 15
Pursuant to Article 15 of the Copyright Directive, press publishers shall be granted with revenues by information society service providers in relation to the digital use of their publications (with the exclusion of mere hyperlinking as well as uses of individual words or very short extracts): no remuneration is granted in case of private and non-commercial use.
It is worth quoting entirely such provision, because in its final approval such provision has been dramatically changed by EU Parliament (compared to the original proposal of the EU Commission):
Member States shall 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.
The rights referred to in the first subparagraph shall not apply to private or non-commercial uses of press publications carried out by individual users.
The protection granted under the first subparagraph shall not apply to acts of hyperlinking.
The rights referred to in the first subparagraph shall not apply in respect of uses of individual words or very short extracts of a press publication.
The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. The rights referred to in paragraph 1 may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated.
When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights referred to in paragraph 1 may not be invoked to prohibit the use by other authorised users. The rights referred to in paragraph 1 may not be invoked to prohibit the use of works or other subject matter whose protection has expired.
Articles 5 to 8 of Directive 2001/29/EC, Directives 2012/28/EU and (EU) 2017/1564 shall apply mutatis mutandis in respect of the rights referred to in paragraph 1.
The rights referred to in paragraph 1 shall expire 2 years after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date of publication.
Paragraph 1 shall not apply to press publications first published before [entry into force of the Directive].
Member States shall provide that the authors of the works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers.
Main legal issues
It is not clear to what extent a content does or does not fall within the link tax application. The Copyright Directive makes indeed a generic reference to the fact that “uses of individual words and very short extracts” are exempted, but there is no indication of the length of texts falling within such provision. For example, snippets seem to fall within the application of this provision.
This uncertainty may lead to different interpretations across Member States. Indeed, the direct target of the obligations related to link-tax are Member States, in their implementation of the Copyright Directive (and only indirectly the users of the protected contents).
The introduction of the obligation for information society service providers to pay revenues to publishers for showing their contents produced two main reactions from public opinion.
On one side, many endorsed the link tax as an instrument to protect the work of publishers and a way to ensure that users may access their online contents (indeed, the use of snippets has decreased access / traffic to the publishers’ websites, as the users already get a sense of the content without reading the entire piece).
On the other side, however, many express fear regarding the fact that small publishers will be significantly penalized (indeed, search engines will not be interested in displaying the contents of small publishers, as long as they need to pay for such service). This scenario raises concern regarding small publishers, who may be “kicked-out” of digital use by information society service providers.
General principles of “fair remuneration” laid down by Article 15 are welcomed by commentators; however, many of them would be comfortable with the introduction of factual measures to protect copyright.
In this sense, it would be advisable that Member States – implementing the Copyright Directive – require stakeholders (i.e. publishers and information society service providers) to enter into standard agreements.
Should standard agreement be implemented (and without prejudice to authors’ rights), both parties involved would have been safeguarded: on one side, the publishers would have been guaranteed against the use of snippets exceeding a certain length and, therefore, access to their websites would have increased; on the other side, the information society service providers would have not be burdened with the duty of assessing whether or not their online use of press publications falls under the link tax provision and whether or not revenues need to be paid.