photo © Thierry Secretan
Which one of us, after reading a particularly striking article on Facebook or Google News, or any other search engine and content aggregator – let’s call them platforms – has never shared the article with his friends? It has become a standard reaction for any Internet user. However, each time we do this, Google News or Facebook, to name a few, receive indirect but considerable advertising revenue from these shares, including those of newspaper articles – protected by copyright. While these articles are generously shared, the revenues are not.
THE STATUS OF HOST
This situation, unjustifiable from the moral point of view and terribly damaging to the incomes of the press, a fundamental pillar of democracy, finds its origin in the definition of “host”, as opposed to that of “publisher”, definition forged at the beginning of the Internet (law LCEN of June 21, 2000) . According to its legal definition, is a host, a person or company which, “even free of charge, makes available to the public via services of communications publicly accessible online, the storage of signals, writings, images, sounds or messages of any kind provided by recipients of these services.”
It is behind this definition and its notion of free (neither you nor me “pay” to use Google or Facebook), that these giants of the web hide to avoid sharing the large advertising revenue that they partly garner through the consultation by Internet users of press articles referenced on these platforms. It is this dispute between the latter and the media that the European Commission wants to resolve with the creation of an “ancillary right” (of copyright), article 11 of the “Copyright Directive.”
This ancillary right would consist of a tax or fee, payable by search engines to collecting societies which would then redistribute it to the media. This proposition supposes the creation by the platforms of filters allowing the identification and payment of content under copyright. Article 13 of the Directive also stipulates that online services giving access to copyright-protected material to the public, as soon as they are put online by Internet users and optimized by platforms by ” promotion “,” marking “,” ranking “, etc. (constituting an “act of communication” on their part, according to Article 13) will also be subject to this fee. Twenty years after the start of the digital revolution, it is, therefore, a significant change to the hosting definition that is proposed by the Directive.
Presented by the European Commission (EC) and rejected on July 5 in Brussels after an intense lobbying campaign to which Google is rumored to have contributed 31 million euros. The EC will re-examine it on September 12 with all the amendments proposed since. The battle is raging between agencies and press publishers grouped against the “GAFA” (an acronym for Google, Apple, Facebook, and Amazon).
Let’s go back to article 11, more specifically dedicated to newspaper publishers. It refers to “snippets,” the photo and small text on which we click on Google or Facebook to access the entire article of the website that originally published it. Studies show that 85% of Internet users do not click on the snippets, reading them is enough.
This is significant since, for a country like Germany, revenues from snippets could generate between 200 and 500 million euros annually. By projecting this figure to cover all of the 28 European countries, it is possible to get an idea of the amount coveted. This sum would give a significant boost to agencies, publishers, and professional photographers. It would still be necessary to agree on a snippet rate and how best to track how many reshares these snippets have generated (hence the extensive range between 200 and 500 million euros for the German example ). Today, the number of reshares are only known to platforms which do not communicate it since they have no legal obligation to do so. Article 11 is not very clear on this legislative obligation.
News agencies and publishers say it is essential to share the advertising pie without which the press cannot survive. Detractors of the Directive, who are not just GAFA, fear that such a measure will reinforce the hegemony of Google, Facebook, Twitter or Youtube because only they can organize and negotiate the tax with the organizations of collective management. Smaller platforms may well have to go out of business.
In this respect, the Spanish example is revealing. In 2014, Spain introduced a “Google tax,” which led Google to dereference Spanish publishers sites instead of paying. The most prominent sites lost 6% of their traffic and the smallest 14%, a considerable loss of visibility while for Google the shortfall is negligible. However, if all European countries decided to align behind a common position by voting the Directive, it would achieve critical mass and force Google and other platforms to review their position.
There are also political considerations that have nothing to do with the issue of copyright and ancillary rights. Italy refused to vote for the Directive in retaliation for the lack of solidarity from its neighbors to the influx of immigration in recent years. Poland, fined by the European Court of Justice for failing to comply with its laws on collective management of copyrights passed in 2014 by the EC, also opposes, by retaliation, the ancillary right legislation. England, which is no longer part of the EU but is still there for a few years, champions liberalisms and rolls for Google, also voted against the ancillary right.
Other critics of the Directive, such as Julia Reda, representative of the German Pirate Party at the EC, claim – and this is incorrect, I have verified – that the hyperlinks would also be taxed. These detractors also consider that the technical requirements proposed such as automatic filtering will be insurmountable for smaller platforms, and thus an attack on the freedom of the net.
FILTERING AND IDENTIFICATION OF CONTENTS
The Directive also proposes that the major hosting companies enter into agreements with rights holders of the works they broadcast (represented by the collecting societies of these rights), to define with them the methods of distribution of the revenues (advertising or subscription) or take measures to prevent the broadcast of content reported to them. To do this “effective techniques of content recognition” exist. This explicitly refers to the ten years old Content ID deployed by YouTube – a filter that allows Google to automatically detect copyrighted work on its site and enable rights holders to prevent or allow their dissemination ( against payment). In France, for example, YouTube gives the CNC (National Cinema Center) a portion of its advertising revenue received from the distribution of films and videos. The movie studios and music labels have, by themselves, create enough critical mass to force the GAFA to share part of the advertising revenue generated by reruns of their content.
One point that the Directive does not address is that of metadata, the author, source and description information registered in IPTC fields which photographers and news agencies put in precious hours to duly complete. It constitutes the first and indispensable step to obtain identification of contents. However, the vast majority of press editors, with a few exceptions, delete them to “lighten” the size of images when they put them online on their sites (link international slide metas). This is a ridiculous technical argument at the time of broadband and a lousy habit originating from when internet connections were slow. It is quite paradoxical that press publishers engage in a showdown with Google without first preserving the metadata of the images they publish.
According to the detractors of the Directive, a breach of equality would occur between rights holders who will be rich enough to have marked their entire catalog, and those who cannot afford to do so. Only those capable of supporting the cost of this automation will be able to assert their rights, and this would constitute a severe attack on free competition.
This last argument is particularly misleading because the Directive adopted or rejected, an unmarked content, once put online, is immediately prey to violations of many kinds, outright theft, multiple reuses, lawful or illicit, etc. Strong and reliable tagging software exist (Imatag, Digimarc to name only the best known) which cost a hundred euros annually and are an essential part of the recognition (Content ID) and tracking of content. For photographers, agencies and press publishers and DAMs who have not yet put it, it is time, ancillary rights or not.
Thierry Secretan, photographer, CSO Imatag