As reported here, last week the European Parliament approved the latest version of the EU Directive on Copyright in the Digital Single Market (DSM Directive). Following the final approval by the Council and publication on the Official Journal, this new piece of EU legislation will enter into force. After that, individual EU Member States will have 24 months to transpose it into their own national laws.
The DSM Directive contains a provision, Article 15 (in the original proposal it was Article 11), which introduces a new right for the benefit of press publishers in relation to the online use of their publications.
Purpose of the provision
Article 15 builds on and follows a number of national initiatives aimed at remedying declining revenues in the press sector. Over time, the internet and new online services – such as news aggregators and media monitoring services – have been frequently indicated as being partially responsible for this phenomenon, due to the impossibility for press publishers to control and contrast unauthorised uses of press content by these subjects.
Indeed, Recital 54 in the preamble to the DSM Directive identifies difficulties and inefficiencies in licensing and enforcing rights as one of the reasons justifying the introduction of a press publishers’ right at the EU level. The preamble to the directive also notes how helping publishers recoup their investments would contribute to press freedom and pluralism, ensure quality journalism, and citizens’ access to information.
Main obligations
The new right, which lasts for two years from the date of publication of the relevant press publication and does not have retroactive effect, will be available to press publishers established in the EU. Importantly, it leaves copyright protection in the relevant press publication unaffected.
The notion of press publication encompasses literary works, but also videos and pictures. It does not include scientific journals and blogs, nor does it extend to the facts covered by the relevant press publication.
The beneficiaries will be able to license the online use of their press publications to information society service providers. In this sense, the press publishers’ right is a B2B right, in that it is not enforceable against individual users in relation to non-commercial uses of press publications.
In addition, authors of press publications will be entitled to an appropriate share of the revenues realised through licensing of online uses of press publications.
The right does not cover linking, nor does it extend to individual words or ‘very short’ extracts.
Potential implications for clients
The current formulation of the publishers’ right establishes a number of points, but also leaves a number of issues uncertain.
First, the beneficiaries will only be press publishers established in an EU Member State: this means that press publishers established outside the EU would not be eligible for protection under Article 15. The withdrawal of the United Kingdom from the EU might make it impossible for UK-based publishers to enjoy Article 15 protection.
Second, it is true that the right does not encompass linking and does not cover use of individual words and very short extracts. However, as the right leaves copyright protection unaffected, it is worth recalling that – in certain cases – unauthorized linking to protected content might fall within the scope of copyright, and that the reproduction of even short extracts might fall within the scope of the right of reproduction if what has been reproduced is sufficiently original.
Unanswered questions
The text of the DSM Directive leaves a number of key points unaddressed, which are likely to be crucial during the national transposition phase and, later on, in practice and – potentially – litigation.
First, concepts like ‘very short extracts’ and the appropriateness of the remuneration that authors should receive are not defined, nor is it clear how the latter, ie collection and distribution of relevant fees, is to be performed.
Second, the DSM Directive does not tackle the issue of waivability of the right in Article 15. It is unclear whether beneficiaries of the right will be able to waive it, lacking a specific prohibition to the contrary and considering the wording of Recital 82 in the preamble to the directive. Overall, it appears likely that different Member States might opt for different ways to implement the DSM Directive into their own laws, and that influencing the debate at the national level would be of significant importance for interested stakeholders.
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