The European Union Clashes With Google Over Copyright

WASHINGTON — Both U.S. presidential candidates might have recently called Angela Merkel their favorite foreign leader, but there is still plenty of transatlantic conflict stemming from German ideas. On September 14, the EU Commission fired the latest shot in its fight against U.S. tech giants with its proposal to overhaul Europe’s copyright laws for the digital age. Google is already embroiled in three anti-trust investigations in the areas of search, advertising, and phone software. Now the company will be battling against the EU’s plans to create a new right requiring online news aggregators like Google to pay publishers for displaying stories or snippets of publishers’ articles.

The EU Commission’s proposal translates a German law from 2013 onto the European stage. This law created the concept of “ancillary copyright” (Leistungsschutzrecht), which enabled publishers to seek payment from news aggregators for showing snippets of articles. In the Commission’s proposal, these are known as neighboring rights. They are found in the music industry, for example, where performers receive neighboring rights for their rendition of a song (while the song writer or copyright holder receives the copyright payment). The Commission is suggesting similar ancillary rights for press publishers. Like the German EU Commissioner for Digital Economy and Society, Günther Oettinger, the proposal views the news media as a creative industry that requires protection as it seeks sustainable business models for a digital world.

But the German law did not work out smoothly. Google stated that it would only display snippets from news websites that waived their rights to fees. After a few websites experienced massive drops in traffic, over 90 percent of news companies agreed to relinquish their rights. When a similar law was promulgated in Spain, Google closed its news service rather than pay fees.

So why would the Commission pursue a flawed law?

The conflict boils down to a philosophical difference about the role of news in public life. Google and other U.S. multi-national online companies believe that subsidies have no place in the media landscape. The EU Commission believes the opposite.

Both positions have merit. Historically, news production cannot function without subsidies. The forty years after World War II were the exception, not the rule, in the longer history of news. During those decades, newspapers in the United States enjoyed average annual returns of 12 percent, when grocery store profits were around 2 percent. Now, with print advertising plummeting, newspapers are struggling to survive, just as they did in the eighteenth and early nineteenth centuries.

But Google is right that this copyright provision will not provide the succor that publishers seek. The United States is not a signatory to the Rome Convention of 1961 that established neighboring rights for music performers and broadcasters. Similar laws to protect news through the telegraph and over the radio failed to provide sufficient protection in the past because provisions were often unenforceable and vague.

The same is true of the Commission’s current proposal. The proposal states that it will cover “journalistic publications, published by a service provider, periodically or regularly updated in any media, for the purpose of informing or entertaining.” Who will define “journalism”? Would bloggers count, for example? How often is an update “periodical” or “regular”? Scientific and academic publications are excluded. Who will draw the line between journalism and scientific work? The only people who profit from these questions are lawyers. Plus technological change generally outpaces legal statutes. Snapchat, for instance, is already presenting newer challenges than news aggregation through Google.

The EU would be wiser to push for investment in Google's Digital News Initiative and digital infrastructure. Launched in 2015, the Digital News Initiative is a partnership between Google and over 160 European publishers to promote innovation in digital journalism and support news organizations in their transition to the digital realm.

Mathias Döpfner, chief executive of the large publishing house Axel Springer which has lobbied against Google, welcomed the EU’s proposal. But he warned that Silicon Valley firms needed to change their attitudes too. Otherwise, so many publishers would go out of business that there would be nothing left except “a total mix-up of rumors and facts — a pretty traumatic scenario of information or propaganda.” The copyright proposal might not work. Meeting each other halfway philosophically can. Silicon Valley and Europeans both need to change their approaches: to create public-private partnerships rather than waste time writing and fighting unenforceable laws.