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Digital Single Market: Draft Copyright Directive – What is the current state of the European ancillary copyright for publishers?

The ever-lasting discussion regarding the implementation of a European ancillary copyright for press publishers has now entered the next round. In March 2017, MEP Therese Comodini Cachia, who then was the rapporteur of the European Parliament’s committee on legal affairs (JURI), spoke out against such a right (report), after the Commission had envisaged such a right in the proposal for a new Copyright Directive (COM (2016) 593 final).

Positioning of the EPP-Group

Mrs Comodini Cachia has meanwhile returned to the domestic Maltese Parliament and the German Axel Voss, member of the EPP-Group of the European parliament, took on the role of the rapporteur for JURI, which is the lead committee on this draft legislation. He sees himself as an advocate for a European ancillary copyright for press publishers. Apparently the EPP Group now supports his opinion as highlighted in a recently published press release.

However, the situation and views within the Parliament can be described as heterogeneous. Numerous parliamentary groups also argue against the respective ancillary copyright. Recently, the rapporteur of the Committee on Consumer Protection and Internal Market, Catherine Stihler, demanded at the committee meeting that the article on the European ancillary copyright for publishers should be deleted from the Commission’s proposal. She had already put forward her  opinion on this case in a statement of 20 February 2017.

Means against fake news?

An interesting point in the current discussion is the reference to an aspect which, so far, appears not to have been subject to intensive debate. The European ancillary copyright for press publishers is argued to be a suitable tool in the fighting of the phenomenon of fake news. The emphasis of the argument is on the strengthening of so-called quality journalism – which may very well be the result of introducing a European ancillary copyright for press publishers. However, one should not jump to the conclusion that such a right would necessarily limit the publication and dissemination of fake news. On the contrary, this potential outcome requires further, detailed examination.

Undoubtedly, financially better-equipped press media is more likely to be able to research stories and backgrounds adequately before the publication of news. The implementation of a European ancillary copyright for press publishers clearly aims to secure a greater share of revenue for press publishers by giving them part of the proceeds from second exploitation (for example on news aggregation websites).

However, it is not quite clear how the phenomenon of fake news per se would be prevented by a ancillary copyright for press publishers: many of those spreading fake news are not interested in quality journalism. They either aim for targeted misinformation, or they simply do not care about the truthfulness of the information they pass on. Only too often, the core interest is to generate clicks on a website.

The phenomenon of fake news is well known. However, it is quite likely that the impact a new ancillary copyright would be limited because publishers who have committed themselves to quality journalism already (generally) refrain from passing on unverified information.

What is the next step for the legislative proposal?

The final debate and ballot in the committee on legal affairs will not take place before the beginning / middle of October. In any case, no earlier dates were evident (see also the statement from MEP Julia Reda). The vote in the plenum of the European Parliament is not expected until late October at the earliest.

Until then, the debate about a European ancillary copyright for publishers will continue to rage, and with the appointment of a new rapporteur in the committee on legal affairs, it certainly took a new turn. However, it is not yet clear how the majority situation in parliament will ultimately turn out and, indeed, which position the Council will finally take.