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Save the free press: just 1 cent per click!

What if all professionals pay 1 cent every time a visitor clicks on one of the hyperlinks they offer? Then the press (and other producers) will finally be paid a reasonable fee for the value they add.

The independent press is struggling. Subscriptions have halted and advertising revenue wanes. Visitors to news media websites don’t want to pay for its content. Pay walls don’t function well: very few regular visitors opt for a subscription. A smooth micro payments system to pay small amounts per article read, doesn’t exist. A service like Blendle, in actual fact a form of organising micro payments, is not flourishing, to say the least. What is being paid for online use, goes through a complex system of advertisements. However, the bulk of the advertiser’s money doesn’t end up with the press, but with players like Google and Facebook. Either direct or through their ad agencies.

This current system rewards not the press, the producers, but the ones who distribute the news and make it accessible. While not devaluing the latter’s importance, matters do seem lopsided. Lopsided enough anyway, for the press to appear to be heading for its Waterloo, while Google has enough money to develop self-driving cars and other expensive branch-foreign toys.

Google (and many other intermediaries) are able to do their delights-delivering work based on European directives, which deal with copyright and with liability (or rather: non-liability) of intermediaries. These make referencing to other parties’ websites by hyperlink ‘free’. Google does not need permission from the owner of the webpage to do so. And neither does anyone else who places a link on their page.

All laws serve a purpose. This includes the EU directives. One of their purposes is: making the joys of modern times available to all. So modern digital communication would be free. So there would be no curb on referencing to other websites. So there would indeed be unlimited access, which is good. The law should also serve technological developments. But that is not its only purpose. The law, and specifically the copyright law, also has to serve the interests of the producers, and journalists, and stimulate them to produce abundantly and variedly. A wide ranging supply is vital to our society.

The balance between these two purposes: freedom on the one hand, and the protection of the interests of the producers on the other, is currently lacking. The freedom to hyperlink leads to an accumulation of money with intermediaries, while the news messengers are near perishing.

The law is a human creation. This law is no longer suitable. Hence, legislators must act.

The European Union has acknowledged these problems. They’re working on it. Publishers and European civil servants aim for the creation of an extra neighbouring right for publishers. They are working on a new European directive that should include this ‘publishing law’. This new publishing law is similar to the copyright law: under this law, publishers can prohibit others from using their press utterances. By the way, most publishers already enjoy this right, based on the ‘ordinary’ copyright laws: many journalists are employed by publishers or have signed over their copyright to them. The proposed regulation seems a desperate attempt. Sympathetic at first sight, but unsuitable to solve the problem.

The new regulation will not fix the hyperlink problem, the imbalance between producers and intermediaries. But the option to let the hyperlink be ‘free’, is a political  choice. A choice that could go the other way and a choice that many now feel should have gone the other way. If we now decide it has to change, we can do that. It’s very simple even: make the intermediaries pay for every time a visitor clicks on one of the links they offer.

1 cent per click seems a reasonable amount. That is a CPM of EUR 10,–.  In other words: for every 1000 clicks, the intermediary pays EUR 10,–. That way the press and other content suppliers (finally) receive direct payment for their work.

Simple and legally easily doable, albeit that this stand goes against the way the Court of Justice of the European Union is currently viewing hyperlinks. But the Court of Justice interprets the law; it does not make it.  That’s up to the European legislator. And there are good reasons for this amendment. Nothing less than the preservation of one of the most important cornerstones of our democratic process, the free press, is at stake.

Is the 1 cent regulation technically doable? Of course. Anyone who has an inkling of the way almost all ads on the internet are currently being served, knows that there is an endlessly complex digital administration behind them, which does not only register which visitors come from which websites, but also who these visitors are (at least which computers they use). The system proposed here, is wondrously simple compared to that. Only the visits need to be counted and their costs settled. Both the press (the publisher in this jargon) and the intermediaries can join one of many platforms. They often have already, as a matter of fact. There is thus no need to create a new collection agency, save perhaps for that part of the mandatory payments, which the rightful owners are not collecting themselves.

The result will probably be an increase in the fees of players like Google and Facebook. But the fact that it isn’t possible to keep a news website alive based on those fees, means that those fees are now unhealthily (terminally) low.

Whatever constitutes an intermediary, needs to be interpreted broadly. Every professional party who links to anyone else, simply must pay. Offering hyperlinks on websites themselves however, remains as free as it is now.

It will be the professionals who have to pay. The difference between an amateur who doesn’t and a professional who has to pay, will not always be clear. That indistinctness applies to a limited group. To narrow debates on that, we can decide to only start raising that 1 cent when more than 1000 visitors click on links. In addition, we’ll have to fight robots that are clicking to make money for their shady clients. But this is old news as well: that battle has been ongoing for years by now.

Then there’s another issue: many website suppliers want lots of visitors to their sites. They’d like to remove all boundaries to clicking. Including the boundary of that 1 cent that would be due to them. The 1 cent regulation could be designed in such a way that visitors only pay organisations that register on one of the collection networks. However, that could create a problem: a party like Google may decide to only show hyperlinks of non-registered parties. That would defeat the object. So, rather just always pay. Websites that thrive on getting many visitors can use their revenue to buy more ads (or pay the higher fees). If Google then decides to only show hyperlinks of parties who pay Google, I suspect Google is abusing its power. But most of all, uniform mandatory payment would prevent parties on the supplier side being played against each other.

The 1 cent regulation restores the balance between the press and the intermediaries, which has been distorted by the course elected by EU regulations. This restoration is in everybody’s interest. Eventually, also in the interest of intermediaries. The disappearance of a varied supply will mean the disappearance of their own relevance. Operating signposts in a desert is not a sustainable business model.

09 January 2017 - Uncategorized

About Jetse Sprey

Jetse is associated with our office as legal counsel. Jetse finds solutions instead of problems and is able to break stalemates again and again. He speaks his mind and is not guided by what he thinks his clients want to hear.

He writes sharp, readable contracts. He has extensive experience with Blockchain and is an entrepreneur in this field himself. He writes convincing procedural documents and advice. He is knowledgeable in intellectual property, privacy and corporate law.

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