The proposed Directive attempts to improve the failing financial outlook of press publishers in the digital, online environment by introducing a new right for them. It will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, and limit access to information. Moreover, the new right will create additional ancillary protection for content already covered by copyright.
The European Commission has proposed new rights in publications available to press publishers. This right will give press publishers the right to request for payment to those who link to their news sites, when those links include a few words of the story or its headline. This new right has been called many things, including a publisher’s right, ancillary copyright, a link tax, and a Google tax.
Publishers already benefit greatly from the copyrights they hold in their content, and don’t need an additional exclusive right to protect or exploit those rights. As is clear from past experiments with the right in Germany and Spain, an additional right for press publishers will not support quality journalism, increase the diversity of media content, or grow the digital single market. Instead, it will negatively affect access to information and the ability for publishers to share using the platforms, technologies, and terms beneficial to them.
The extension of copyright-like rights such as this new ancillary right needs to be opposed. Granting publishers a new right without any evidence that this will achieve its stated goal will set a dangerous precedent. The press publishers right should, thus, be removed from the proposed Directive in its entirety. The existing problem can be addressed by observing a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them.
In spite of nearly unanimous criticism from academics and civil society, both the European Parliament and the Council have decided to maintain this part of the Commission's proposal. While there is agreement among the legislators to introduce this right, the following elements are still under discussion: (1) the scope of coverage —whether to exempt “insubstantial parts” or “individual words or very short excerpts” (2) the duration of the right—whether the right should last for one year or for a longer period such as five years, and (3) whether authors of the works in question (typically journalists) shall receive an appropriate share of any revenues generated or not.
Even if insubstantial parts would be excluded, the right would last only for one year, and journalists would be entitled to receive compensation the new publishers right could not be justified. A new right would very likely fail to increase publisher revenues, while it will decrease competition and innovation in the delivery of news, thereby limiting access to information for internet users in the EU.
There is no separate ancillary right for press publishers in the InfoSoc Directive. But advocates arguing against the introduction of Article 11 have pointed to existing regulation that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities as the copyright holders “to conclude licences and to seek application of the measures, procedures and remedies.” The framing draws from Directive 2004/48/EC on the enforcement of intellectual property rights, and already provides a robust legal framework for the protection of content without the negative aspects of introducing a new right.
In Article 11 the European Commission proposed to require that Member States “provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.” This means that press publishers would be granted control over the rights of reproduction and making available to the public of their digital publications. The Commission explains its approach with the goal of improving legal enforcement and providing new sources of revenues for publishers. Only press publishers as defined as such by national legislation will be able to leverage the right. The right would apply to online uses only, and expires 20 years after the publication of the press publication.
The Council text defines press publications as a “collection composed mainly of literary works of a journalistic nature.” It says the right would cover “online” instead of “digital” uses. It attempts to limit the scope of the Commission proposal so that the right does not apply in respect of uses of “insubstantial parts of a press publication” (such determination would be left to the Member States). The Council text includes language to exempt works published under open licenses – “when a work or other subject matter is incorporated in a press publication on the basis of a non-exclusive license ... [the rights] may not be invoked to prohibit the use by other authorised users” or public domain content – “may not be invoked to prohibit the use of works or other subject matter whose protection has expired.” The term of protection in the Council text is for one year.
The Parliament text defines press publications as a “fixation by publishers or news agencies of a collection of literary works of a journalistic nature,” and it exempts “periodicals which are published for scientific or academic purposes.” The Parliament version exempts private and non-commercial uses, and claims that the right “shall not extend to mere hyperlinks which are accompanied by individual words.” The text states that Member States must ensure authors get “an appropriate share” of any additional revenues generated by the right. The term of protection in the Parliament text is five years.
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