• by Kevin Lee , Op-Ed Contributor, March 27, 2019

Will the EU’s new Copyright Protections Help or Kill Publishers?

A new European Union Copyright reform ruling will “force Google and Facebook Inc. to pay publishers for use of news snippets and make them filter out protected content,” according to Reuters.

Publishers and copyright holders in the EU (and internationally) may rejoice today, but in a classic case of “be careful what you wish for,” I’m of the opinion that this could backfire. Details on the ruling are sparse, but there is enough information out there in the press to allow us to draw some conclusions and even consider some hypothetical situations.

How Search Engines And Social Media Could (And Should) Respond

My current and hastily thought-out hypothesis follows. Google, Bing, Facebook, Twitter, YouTube and others will need to:

a)  Determine whether page titles (or headlines) are considered fair use in the EU (hence no royalties need to be paid to publishers). Early reporting seems to indicate that titles are OK, but it remains unclear whether an image -- including one specified in the Open Graph -- will be acceptable to use in a SERP (Search Engine Results Page) or in a FB/Twitter Feed.

b)  If titles/headlines are acceptable, Google, Bing, et al will need to change SERPS so that only titles -- not snippets -- are displayed for “publishers.” The same goes for social media platforms, which currently rely on Open Graph Meta Tags.

c)  The industry at large will need to precisely define “publisher” to determine if anyone and everyone with a copyright notice on the site “counts” as a publisher, or if this term is reserved for those meeting some additional criteria (for example, membership in the American Association of Publishers).

d)  Similarly, the industry will need to develop an opt-out system for businesses that are not publishers, that nonetheless want their snippets to be shown to search engines and/or social media platforms

e)  The industry/ecosystem will need to find a way to develop a mechanism to actually pay publishers (perhaps emulating the ASCAP model that monitors links in the same way that ASCAP monitors radio broadcasts to ensure that its members are paid).

A Meta Tag-Based Solution?

With regard to search engines, if I were Google or Bing (the dominant international search engines), I’d push through a new meta description tag that, once OK’d by the “publisher,” allows the snippet to be displayed in a SERP on a royalty-free basis.

A similar solution will need to be in place for Facebook/Social Media Open Graph descriptions. Currently, webmasters put Open Graph Meta Tags into content because they want those og (open graph) content elements to be syndicated across the ecosystem. If those can now trigger a royalty, then a new opt-in version needs to exist. Webmasters who include them need to be giving consent for royalty-free use.

A new Meta Tag standard will allow the “publisher” to decide whether to grant the search engine, social media platform or mobile app the right to use the snippet royalty-free. Without that framework, pandemonium will reign.

A similar Meta Tag-based framework could be used to allow publishers to request payment.  An industry consortium nonprofit could provide a publisher ID to be embedded in a royalty-required Meta Tag. That ID would allow the payments to go to a central clearinghouse with reporting of pro-rate payments by publisher ID.

In effect, this would be an ASCAP for micropayments to publishers. If that ends up being built, all kinds of interesting -- and positive -- possibilities for publishers will emerge.

With regard to whether this is actually good for copyright holders and publishers, in my opinion, one significant possibility of this reform is that European publishers that get billions of clicks from the Google SERP for free will actually SUFFER as less informative, less authoritative snippets begin to flow through Google.

What Do The Lawyers Think?

I asked around to see what a few lawyer friends of mine thought about the ruling. Bennet G. Kelley, founder of the Internet Law Center, told me: “Consider this: the cost this imposes on compliance may only solidify big tech's market position.” This is an interesting point of view because Google, FB and Bing can all afford to pay, but complying with this type of regulation could present a powerful headwind militating against new innovations in social media and search.

According to Gary Kibel, a partner in the Digital Media, Technology & Privacy practice group of Davis & Gilbert LLP, the EU may now approach online copyrights in a way that differs significantly from the U.S. “In the U.S. there is a well-established body of law establishing certain fair uses of content by users and protecting service providers from liability for the actions of their users. The EU Copyright Directive may require very different practices when it comes to the EU market.”” 

Gary’s initial point of view also generally aligns with my hypothesis that the consequences of this ruling could go either way with regard to copyright holders.

This isn’t the first time businesses are contending with EU regulation and legislation. With GDPR, it has been more than a year and there still isn’t full clarity on every element of that legislation. I’m guessing a similar timeframe will be at work here.

But it’s clear that GDPR has had a powerful effect on the U.S.-based digital ecosystem (especially after California adopted a version of it in 2018), disrupting -- or at the least changing -- a number of established data-handling process and methods.  

A related issue that wasn’t covered in the coverage so far is whether or not regular businesses and blogs will also need to respect the EU’s new standard of fair use and copyright protection. If so, there will be a lot of consternation within the content marketing and blogging community.

What do other Geeks Think?

I didn’t just talk to lawyers, but also discussed the topic with some of my friends. One friend of mine -- Larry W. Smith, Partner at Thematix, who has advised and consulted with many leading brands and platforms -- had three thoughts. First, use a blockchain type of mechanism to declare copyright and ownership.

Second, require a unique digital identity for individuals and publishers. There are many complexities as well as implementation forms, but some standards exist.

Finally, make content publishers pay to be indexed and for their information to be posted. This would be linked to a consent form and some type of identity to be included as a rich snippet or RDFa.