European Commission Hyperlink Controversy

hyperlinkBy now, you’ve probably heard the hype: “The European Commission [EC] is about to ruin the Internet by making people pay for hyperlinks!”

But you can relax. Per usual, the cautionary bark is likely more threatening than the potential, actual bite. Despite the headlines, the chance of European officials turning links into toll booths are about the same as Fox News turning liberal.

That said – current EC conversations about online copyright and cross-border harmonization of the digital market should raise an eyebrow or two. So, let’s break it all down.

Why are people saying that the European Commission is going to get rid of hyperlinks?

Broadly speaking, for the past several months, European Commissioners have been debating “ancillary copyrights.” What are ancillary copyrights, you ask? According to the Computer and Communications Industry Association, ancillary copyright is:

“The right to impose a special levy on search engines and other online platforms providing the public with short fragments of news text, including quotations.”

Julia Reda, a member of the European Parliament, can fairly be fingered as the person who sounded the 2015 hyperlink alarm. On social media, she warned:

the European Commission is preparing a frontal attack on the hyperlink, the basic building block of the Internet as we know it.

In other public statements, she further cautioned:

“The Commission is considering putting the simple act of linking to content under copyright protection.”

“[E]ach web link would become a legal landmine  and would allow press publishers to hold every single actor on the Internet liable.”

Is it fair to call Reda’s tweets about hyperlinks, hyperbolic?

Well, yes and no. If we take a “just the facts, ma’am” approach, the truth is that the word “hyperlink” appears in the document the same amount of times the word “privacy” appears in the U.S. Constitution – none. That said, people point to similar language used when Spain and Germany were debating – and eventually passed – restrictive “ancillary copyright” laws.

Blogs, like TheConversation.com, who believe that Reda may be prematurely sounding the alarm, point to the decision in Svensson v Retriever Sverige. In that ruling, the “Court of Justice of the European Union decided that if the content had been made available to the public already, then providing a web link even without the permission of the author could not amount to copyright infringement.”

The Vortex of the Hyperlink Inhalation Conspiracy

What the EC document DOES mention is “Right of Communication to the Public.” A quasi-legal term of art, the phrase is typically understood as “copyright owners’ […] right to decide the time and manner in which they [make] their content available to the public.”

Spain and Germany: The Lands Where Search Engines Shell Out For Content

In January 2015, Google peaced-out of Spain. Why? The “Google Tax.” [DUN DUN DUN!] The mother of online copyright levies, Spain’s so-called Google Tax “requires online news aggregation services to pay a charge to publishers for indexing and using fragments of their stories.” When the law went into effect, Spanish publishers allegedly lost 10 million pounds on account of fewer visitors.

Germany, like Spain, has an ancillary online copyright law called Leistungsschutzrecht [try and say that ten times fast], which:

“expressly holds search engines liable for making available to the public parts of ‘press products’ in search results, thereby creating direct liability for the automated indexing processes by which search results are generated.”

Much to the chagrin of small business advocates, Google was excluded from the statute. “Why was Google exempted, but not smaller search engines?” Hey, you know what they say: “It’s good to be the king” – especially the world’s reigning search engine monarch. Ultimately, the “link tax” all but upended the independent search industry in Germany.

TLDR; News Aggregators Should Be Concerned, But Not Terrified

So, what’s the bottom line? Though the recent hyperlinking hysteria may be exaggerated, the proposal does include some very real threats for news aggregation sites. After all, the EU may make it against the law to re-package existing content, which will undoubtedly – and almost certainly negatively – affect online marketing and news outlets.

Get Answers & Solutions From Your Friendly Neighborhood Online Copyright Lawyer

Kelly Warner is an Internet law firm that handles all manners of online copyright issues. A top-rated, boutique law firm, Kelly Warner has been focused on technology and Internet law from launch. What makes us different? We’re not stuffy attorney types; we’re genuinely tech-savvy and refreshingly straightforward – we’ll tell it to you like it is from the get-go. Oh, and the firm’s founding attorney, Aaron Kelly maintains exceptionally high review ratings on AVVO.com, Martindale-Hubble and Yelp.

Get in touch today. We’d love to start answering some of your questions and finding solutions to your challenges.

Article Sources

No, the EU is not going to make hyperlinks illegal. (2015, November 12). Retrieved January 12, 2016, from http://theconversation.com/no-the-eu-is-not-going-to-make-hyperlinks-illegal-50484

Sterling, G. (2015, November 9). With Copyright Reform, Is Europe About To Declare “War On The Hyperlink”? Retrieved January 12, 2016, from http://marketingland.com/with-copyright-reform-is-europe-about-to-declare-war-on-the-hyperlink-151107

Brownlee, L. (2015, November 9). What Happens If Hyperlinks Get Copyright Protection In Europe? Retrieved January 12, 2016, from http://www.forbes.com/sites/lisabrownlee/2015/11/09/hyperlinks-may-be-under-attack-save-the-link/

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