A Link-And-Snippet Tax Is Not The Answer to Promote Local Journalism

A diverse group of voices told the U.S. Copyright Office that creating a new ancillary copyright would amount to a “link-and-snippet tax” that is unconstitutional, harmful for small publishers and unlikely to address the problem its intended to solve: the decline in local journalism.

First and foremost, links and snippets are so basic and elemental that they are not copyrightable.

“A link is purely utilitarian and has no creative element to it. The small portion of an article that appears in a snippet or headline is often a sentence or less. The content is facts, titles, phrases and ideas none of which rise to the level of getting copyright protection.” (Re:Create)

Furthermore, a link-and-snippet tax would be unconstitutional, because it:

• Undermines the First Amendment’s freedom of expression, and

“Creating a copyright or similar right in links and snippets would require the government to define ‘journalism’, which has severe First Amendment implications that get at the foundations of democracy…In any democracy, the government should not be in the business of deciding what is news and what is not news. Unfortunately, creating a copyright or similar right in links and snippets would require exactly that. In the hands of the wrong people, this could be used to punish or effectively censor dissenting voices while creating financial windfalls for lies and propaganda.”  (Re:Create)

• Runs against copyright’s purpose “to promote the progress of science and useful arts”

“Not only does this scheme raise First Amendment issues by interfering with the editorial discretion of platforms to choose to let users share even just links to other articles by making it an expressive decision they need to pay for the privilege to make. But more than that, it defies the point of copyright law itself by building tolls that limit access to that knowledge. Copyright is not supposed to be about creating obstacles to keep the public away from ideas and information; the purpose of copyright law is to make sure they can be united, but this scheme does the exact opposite by design.” (Copia Institute)

A link-and-snippet tax would not benefit journalists’ jobs or local journalism while simultaneously punishing small publishers.

“The vast majority of license fees paid by news aggregators would flow to the largest press publishers. They have the best coverage of the broadest range of stories, as well as the most sophistication to optimize their ranking in news feeds. A press publishers’ right would generate little, if any, revenue for local press publishers, and thus would not address the problem of the decline of local newspapers.” (Library Copyright Alliance)

“Because it isn’t just a ‘right’ being manufactured but a tax on platforms that dare help readers find expression others publish. And that tax threatens distort the entire online ecosystem, to the detriment of entities like the Copia Institute, who depend on Internet platforms for their own expression to reach audiences…While some publishers, even smaller independent ones, might perhaps welcome any revenue such a scheme might offer them, those who see it as a financially losing proposition, given how it reshapes the entire online ecosystem by making the platforms they depend on less available, will nevertheless be forced to live with it too, and not be able to compete on terms they might actually prefer.” (Copia Institute)

“History of copyright expansion demonstrates that stronger and longer copyright does not benefit most authors or owners. In the course of studying digital photographers and speaking with them for many years, they reminded me of the Tasini v. NYT Supreme Court decision that resulted in more rights granted to freelancers but did not lead to more leverage or revenue for them vis à vis the news agencies for whom they worked. Instead, employers and news organizations demanded through contract a more expansive transfer of those rights in order for freelancers to be paid what they used to be paid. Photographers explain they make the same fee today as they made twenty years ago (if not a little less accounting for changes in cost of living)…Granting more copyright (or a related right) doesn’t automatically give the entity with less power — be it the photographer, or the news organization — more power to negotiate for what they need (e.g., higher licensing revenues/wages, control over their goods/work, respect/adherence to professional values, etc.).” (Jessica Silbey, Boston University)

“It would force news aggregators to pick winners and losers in the news ecosystem, because online news aggregation services, some of which generate no revenue, would inevitably have to make choices about which publishers to negotiate deals with. It is implausible that any business will be able to license every U.S. news publisher. The transaction costs alone would be insurmountable, and the outlets most likely to be passed over would be the small and out-of-the-way local outlets experiencing the most pressure in today’s news economy. Conversely, those most likely to benefit would be the largest legacy publishers. As a result, adopting ancillary copyright would seriously risk reducing consumers’ ability to discover and access a diversity of views and opinions that are necessary for an informed populace. Consumers would no longer find the news across the web that is most relevant to them, but rather only the news that online services have been able to commercially license.” (Google)

There are many reasons for the decline of newspapers and local journalism (e.g., a shift in advertising, increased access to information for everyday items like TV listings and movie times, media mergers) but none of them include copyright law.

“The decline in revenues for journalism was not caused by news aggregators or by ‘big tech,’ and goes back decades. The internet disrupted the business model of newspapers, for instance, by disaggregating classified ads, sports scores, and other information (movie times, weather, TV listings, horoscopes, etc.) that newspapers used to be the primary source of.” (Public Knowledge)

“Many of the problems plaguing the news media today, including the loss of local coverage in many parts of the country, are a symptom of…consolidation. A newly created ‘ancillary right’ for news media publishers would not reverse this trend, but rather exacerbate it. The largest publications, holding the most negotiating leverage, will tend to make favorable licensing arrangements with the largest news aggregators, including agreements to rank major media content higher in search results and curated newsfeeds. And because both major news media publishers and the largest news aggregation services are so often owned by conglomerates, these deals are likely to include advantageous licensing of other kinds of media, personal data about users, and other products and assets that smaller news media publishers cannot offer. The benefits of any mandatory compensation of news publishers by aggregators will therefore flow primarily to the largest news publishers, leading to further consolidation and more failure of local and niche reporting.” (Electronic Frontier Foundation)

The link-and-snippet tax has been tried before. And failed.

“Both Spain and Germany attempted to impose a “snippet tax” on large digital platforms that would require payment for the use of links in their search or newsfeeds…In practice, ancillary copyright did not generate the expected revenue. When Spain implemented this in 2014, Google News left the market, leaving consumers worse off. The platform has since returned to the market, saying they will to generate resources for publishers through other mechanisms, such as a licensing fee and a program that would pay publishers to curate content. In Germany, things ended up slightly different, due to litigation over the scope of the ancillary copyrights created. Just recently, Google announced a licensing agreement to resolve the disputes.” (Niskanen and R Street Institute)

If this really were a copyright issue, publishers have many options to control access to their work.

“To begin with, the creation of a linking right is not required to achieve the stated economic objectives. Authors and press publishers whose works would be impacted by this new right already control, through technology and law, the relevant economic circumstances. Existing technology allows the copyright owner to choose whether to first publish their work only to paying subscribers, whether to commercialize it through personalized or other forms of advertising, or whether to make it available for free. And after this initial choice, copyright defines the circumstances in which further uses are made, giving due consideration to the economic interests of the copyright holder. Importantly, copyright has also long protected as fundamental a user’s rights in the old equivalent of linking: citation and quotation.” (Internet Archive)

“The most obvious point is that it is only possible to link to content that is publicly accessible on the web. Many press publishers are subscription-based, and their content is only available to subscribers. Press publishers who object to being indexed by search engines or linked to from aggregators or internet users have the ability to make their content private. Additionally, many major platforms honor opt-outs. Google will not index a site with a ‘noindex’ tag, and supports standard ways for sites to control what pages are presented in search results, and in ‘verticals’ like Google News.” (Public Knowledge)

Bottom-line: A proposed link-and-snippet tax is a bad idea that wouldn’t actually solve the news industry’s and journalists’ problems.

“Some news publishers, however, want it both ways. They want to maintain the high pageviews and advertising rates associated with high search visibility, and they also want to be paid for the indexing necessary to send that traffic. They insist that online platforms must drive traffic to their sites, but also demand that online platforms pay for the “privilege” of being compelled to do so.” (CCIA and Internet Association)