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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Copyright, Digital Single Market (EU) Nils RauerAlastair ShawPenny Thornton

DSM Watch: the new Copyright Directive – recent developments on the proposed Ancillary Right for Press Publishers

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The European Parliament’s Rapporteur on the draft Copyright Directive (COM (2016) 593), Axel Voss, released proposed amendments to Article 11 and its corresponding recitals at the end of March. Mr Voss’s draft, for the shadow Rapporteurs on the Parliament’s Committee on Legal Affairs (JURI), introduces a number of remarkable suggested changes, which diverge significantly from the Bulgarian Presidency’s compromise proposal debated by the Council’s Working Party on Intellectual Property the same day.

The idea itself of an ancillary right for press publishers is being widely questioned following the setbacks experienced by press publishers in Spain and Germany after those countries introduced similar legislation. Those laws are generally regarded as having failed, and the economic basis for the new right has been called into question by the Commission’s own research centre (read our earlier blog on this here). However, and despite the divergent views about the path to follow (we previously wrote about a recent discussion paper of the Council Presidency considering possible solutions), Mr Voss seems committed to proceed with the creation of such a right, despite the fact that he has been quoted (by Julia Reda, also an MEP on the JURI committee) as saying in a February 2018 interview that the extra copyright for news sites was “maybe not the best idea – but I think it’s the only one before us that makes at least some progress.

A new beneficiary on the horizon

The Rapporteur’s latest proposal would see news agencies added as beneficiaries of the ancillary right, along with press publishers (amended Article 1). Recital 31 seeks to justify this addition by stating that news agencies are a stakeholder worth supporting in the light of the threat represented by misinformation (fake news) – not at all the start point for the original proposal of the Commission, in 2016 (see Comment below). His draft also suggests that the ancillary right would reinforce the news agencies’ negotiating position vis-à-vis “the powerful platforms” active in the digital environment.

In addition to the reproduction right and the right of making available to the public (Article 2 and 3(2) of the 2001 InfoSoc (Copyright) Directive), Mr Voss’s draft would amend the Commission’s proposal to include the exclusive rental and lending right (Articles 3 and 9 of Directive 2006/115), as well as the distribution right, within the press publishers’ and news agencies’ new rights.

An inalienable right

The Voss draft also suggests that press publishers and news agencies should have a fair and proportionate remuneration which must be “inalienable“. In other words “the digital use of press publications should be obligatory remunerated” (Recital 32). This provision could potentially prohibit the grant of free licenses, perhaps even where the relevant right holder does not wish to charge.

Notably, the new right shall neither (Article 2a) “extend to acts of hyperlinking which do not constitute acts of communication to the public” (draft Recital 33 explicitly refers to the CJEU case law, C-160/15 – GS Media BV and the notion of communication to a new public, see also our blog post here), nor “prevent legitimate private and non-commercial use of press publications by individual users” (Article 1a). The latter exception, which is yet to be precisely defined, is another addition of the Rapporteur.

Authors to receive a share of the fair compensation

A new subsection 4a of Article 11 would ensure that authors receive an:

appropriate share of the additional revenues press publishers receive for the secondary use of a press publication by information society service providers in respect to the rights provided for in paragraph 1“.

This would mean that journalists would participate in the revenues generated in the course of the enforcement of the press publishers’ ancillary rights. This could unnecessarily complicate existing and well-established business models for news reporting, which could easily drive costs up, because mechanisms for distributing payments after the event, dependent on the level of digital use of each work in question, will have to be set up and administered.   The Voss draft does not indicate how such mechanisms would work, but merely says that:

The amount of the compensation attributed to the authors shall take into account the specific industry licensing standards regarding works incorporated in a press publication which are accepted as appropriate in the respective member State“.

Comment

Through its proposal for a new Copyright Directive, the Commission aimed at addressing some of the numerous issues created by the lack of appropriate answers to a number of technological developments since the original InfoSoc Directive was enacted in 2001, and to develop the European copyright framework accordingly. However, the original solutions proposed by the Commission were and are still controversial. With these new suggestions, there seems to be a high degree of “mission creep”, unsupported by the kind of impact assessments and economic studies one would expect to see before such fundamental changes/new rights are proposed.  For example, the Commission’s original policy package said nothing about the challenges of misinformation or “fake news”, which Mr Voss’s current proposal seems largely to be motivated by.  In fact, this is a topic which the Commission has only very recently started to analyse following a public consultation which closed in late February 2018.

The debates on this and other aspects of the draft Copyright Directive within the EU legislative bodies are a long way from being settled.  As we have reported elsewhere the Parliament’s JURI committee has yet again postponed its vote on the draft Copyright Directive, to late June, and this latest set of proposals looks set to ensure that the debate ahead of that vote will be heated.


For further information on the Digital Single Market and its practical impact, please visit our website www.dsmwatch.com.