For many years, some of the world’s largest news publishers have been seeking ways to expand their power online. In Australia, they were able to do so through an unusual form of mandatory arbitration. But underneath these kinds of proposals, whether based in arbitration or otherwise, is a claim to a new sort of copyright right. Often styled as an “ancillary” copyright, such a right could—as described in a recent Copyright Office document—require payment to news publishers from any “online service that collects links to and sometimes snippets of third-party articles and makes them available to its readers.” In other words, this new right would allow big news publishers—and only news publishers—to extract fees from webpages that include links. Unsurprisingly, many have described this as a link tax. And it is now under study at the United States Copyright Office.
We believe link taxes are a bad idea. At a basic level, they are inconsistent with a free and open internet, which relies on the ability of any website to freely link to any other website. But we also do not see that they would achieve the stated goal of protecting journalists against unfair competition. Link tax payments wouldn’t actually go to journalists—instead, under current proposals, they’d go directly to publishers like Rupert Murdoch’s News Corp. This would only make it harder for small, independent, and innovative journalistic upstarts to compete; big companies like News Corp would get this new payment, while small independent journalists would not. Indeed, for these and a variety of other reasons, many have questioned not only whether such proposals support the public interest, but whether they are even consistent with the US Constitution. Supporting quality local journalism is something we can all stand behind, but imposing a link tax on the open web is not the way to do it.
As we have often mentioned, even well-intentioned changes to copyright law can have wide-reaching and negative effects on the online information ecosystem. That is why Internet Archive was proud to voice these concerns in a recent submission to the US Copyright Office and at a public roundtable on December 9, 2021.