This blog post was written by Tibbie McIntyre.
The Proposal for a
Directive of the European Parliament and of the Council on copyright in the
Digital Single Market was published on 14 September 2016, as part of a wider
reform package on the Digital Single Market. Among the most controversial
aspects of the proposal can be found in Articles 11 and 12 of the proposed
Directive, which relate to the creation of a new right for publishers. As 1709
blog readers probably already know, this proposal has generated a great deal of
debate amongst stakeholders, more information on which can be found here, here and here.
Of considerable significance to the debate is the response given by the
Centre for Intellectual Property & Information Law (“CIPIL”), a group of
thirty seven academics headed up by Professor Lionel Bently. Also of great
importance to the debate is the opinion released by
the European Copyright Society, which covers not only the press publishers’
right but also a range of issues emanating from the EU Copyright Reform
Package.
Article 11(1) of the
proposed Directive states:
“Member
States shall [note that this right is compulsory for Member States to provide]
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.”
*N.B.
-Article 2 of Directive 2001/29/EC (“the InfoSoc Directive”) is the reproduction
right and Article 3(2) is the making available
right.
Article 12 of the
proposed Directive states:
“Member
States may [note that his right is optional for Member States to provide]
provide that where an author has transferred or licensed a right to a
publisher, such a transfer or a licence constitutes a sufficient legal basis
for the publisher to claim a share of the compensation for the uses of the work
made under an exception or limitation to the transferred or licensed right.”
These rights
have been incorporated into the proposed Directive due to the loss of income by
the publishing industry. Recitals 31 – 36 provide the contextual basis and supposed justification for Articles 11
and 12, with recital 31 stating that:
“A
free and pluralist press is essential to ensure quality journalism and
citizens' access to information. It provides a fundamental contribution to
public debate and the proper functioning of a democratic society. In the transition from print to digital, publishers of press
publications are facing problems in licensing the online use of their
publications and recouping their investments. In the absence of
recognition of publishers of press
publications as rightholders, licensing and enforcement in the digital
environment is often complex and inefficient.”
The proposed
exclusive right under Article 11 is supposed
to improve the bargaining position of press publishers in their dealings with
data aggregators (Google, Facebook, et al.),
as press publishers are supposed to be able to generate income under this new
right, which encompasses the reproduction right and the making available right.
The position at the moment is that the data aggregators maintain dominance over
news publishers – news publishers need their content to be indexed and
shared by data aggregators in order for it to reach its audience.
Professor Raquel
Xalabarder eloquently argues that the premises on which the
proposal is based are false;
1.
The data aggregators are involved in acts of
copyright exploitation.
2.
The press publisher right will not affect authors’
rights of works incorporated in press publications.
1. The data
aggregators are involved in acts of copyright exploitation.
What
do data aggregators such a Facebook and Google do?
Generally,
they (i) create links to press publishers’ sites, as well as (ii) temporarily
provide small snippets of content.
-
Does creating
links to press publishers’ sites infringe the reproduction right or the making
available right, and if so, do one of the exceptions apply?
o
Svensson and its
progeny suggest that linking to news sites that are openly accessible does not infringe the communication to the public right,
found under Article 3(1) of the InfoSoc Directive (and Article 3(1) is absent from the new
right!). The uncertainty relating to this issue is heightened by
Recital 33 to the proposed Directive, which refers
to the right of communication to the public. The differences between the
‘making available’ right and the ‘communication to the public right’ are
explored in the C More decision, and the
IPKat here.
-
Does
temporarily providing small snippets of content infringe the reproduction right
or the making available right, and if so, do one of the exceptions apply?
o
Prima facie, temporarily
providing small snippets would infringe the reproduction right. However, Article
11(3) of the proposed Directive states that Articles 5 to 8 of the InfoSoc
Directive apply to the press publishers’ right. These snippets potentially fall under Article 5(1) of
the InfoSoc Directive, the exception of temporary acts of reproduction which
are transient or incidental. These temporary snippets, are therefore
potentially not covered under the new press publishers’ right.
2. The press
publishers’ right will not affect authors’ rights of works incorporated in
press publications.
Given
that press publishers almost always own the copyright in the published content
anyway (through employment, assignation, or in jurisdictions where assignation
is impossible, exclusive licensing is used), the impact of this new right is
unclear.
Additionally,
Professor Xalabarder argues that where layering of rights occurs, the division
of wealth generated from the content must be divided amongst a greater number
of parties, and as a consequence authors generate less income from their work.
A
similar press publishers’ right has previously been introduced in Germany, with unfavourable
results. Press publishers in Germany attempted to make Google pay, utilising
their new right. Google simply refused to comply. It stated that any press
publisher that did not consent to their content being used free of charge would
receive reduced exposure on index results. Naturally, faced with reduced
web-traffic which would jeopardise
revenue generation, press publishers relented.
In Spain, a press
publisher right was introduced which automatically made Google pay, without the
press publishers having to pursue payment under an exclusive right. Google’s
response was simply to close down Google News in Spain. Further consequences
were felt, with online Spanish news sites garnering less traffic after Google
News had shut down.
The
cogent opinion released by CIPIL states that
“If the real problems facing press publishers relate to licensing and
enforcement, the best answer is surely to focus on licensing and enforcement
rather than to create new rights.” Also, that “Multiple rights are associated
with clogging and opportunistic behaviour.”
Realising
policy objectives is a complex and difficult goal, with almost endless
variables to consider, with drafting of new laws posing a particularly
challenging task. The debate playing out across the globe presents many
challenges, and it will be interesting to review further iterations of this
proposed right in the coming months, as well as the response from EU
institutions.
