EU copyright reforms: is it the end for the much-hyped press publishers' right?

The way in which we obtain our news has changed fundamentally in recent years. A quick glance along the bus or train carriage on your daily commute will confirm that fewer people read print newspapers and more people are turning to their tablets and smartphones to get their current affairs fix.  It is for this reason that press publishers were behind the proposals for a new EU press publishers’ right. They had high hopes that this would help combat the damage they were suffering as a result of what they termed “substitution” – where platforms such as Google News provide their users with a list or feed of news results without those readers “clicking through” to the actual article itself. However, these hopes might now have been dashed due to a recent review of the draft Copyright Directive by the rapporteur for the Directive, Therese Comodini Cachia, which proposes a right which is significantly more limited in scope than originally anticipated.

In this article, we discuss the rationale for the press publishers’ right and some of the points of contention. We also ask whether the EU press publishers’ right was already doomed to fail and examine the ancillary press publishers’ right in Spain, Germany and Italy, where equivalent rights have already been introduced.  The introduction of the right in these countries has arguably not had the desired effect. In Germany the vast majority of press publishers agreed to their publications being indexed in Google News without a fee and in Spain, Google shut down Google News completely.

Why do we need a press publishers’ right?

In May 2015, the President of the European Commission, President Juncker, unveiled plans for the European Digital Single Market. Top of the Commission’s agenda was the reform of copyright laws to reflect the “digital age” and one of the more controversial of these proposed reforms was the introduction of a new neighbouring right for press publishers.

The EU’s rationale for the introduction of the press publishers’ right stems from concerns that 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. Copyright in the articles making up a publication may belong to the author unless assigned to the publisher, so that a publisher facing infringement may not be able to take any action.  As the recitals to the draft Directive explain, “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 original proposed press publishers’ right gave publishers of press publications the “reproduction right” (Article 2) and the right of “making available to the public” (Article 3(2)).  The right would expire 20 years after the publication of the press publications.

Why was it so contentious?

Many, in particular press publishers themselves, argued that the proposed right would not be any broader than the rights which press publishers have under existing copyright laws, but it would make it easier to agree licences for the use of their content.

By contrast, those against the proposals argued that the press publishers’ right would be broader than the protection afforded by copyright law. Concerns were raised that even very short snippets, which might not qualify for copyright as a result of failing to meet the necessary originality threshold, would be covered by the new right.  There was also concern about its retroactive nature, so that use by even a static website from a number of years ago would infringe once the right was introduced.

Is a U-Turn now on the horizon?

In March this year, Ms Comodini Cachia reviewed the current draft of the Directive and put forward some important changes, fundamentally revising the press publishers’ right. Her changes would provide press publishers with “a presumption of representation of authors of literary works contained [within the press publication] and the legal capacity to sue in their own name when defending the rights of such authors“.  In her report, she justifies her amendments by reference to the need to ensure that the right does not negatively impact other industries, and the need to ensure wide access to news and opinions, which is important for public debate in a democratic society.

It remains to be seen what the final form of the EU press publishers’ right will look like and whether it will have the desired effect. In the meantime, we examine the scope of the existing neighbouring rights for press publishers in Spain and Germany and the effect that this has had on the market for digital news publications in these countries.

Press publishers’ right in Germany

Germany introduced a press publishers’ right in Germany with effect from 1 August 2013 (Sections 87f et sqq. of the German Copyright Law (UrhG)). However, so far, the new right has not had the desired effect and has not improved the position of press publishers.

Sec. 87f UrhG grants press publishers the exclusive right to publish press products or parts thereof for commercial purposes, unless the publication only consists of individual words or small text excerpts (snippets). Unsurprisingly, Google argued that Google News falls under this exemption, whereas press publishers contended that publications by Google News would infringe their press publisher’s rights. However, from Google’s viewpoint, a legal resolution to this dispute was not required: Google simply decided to ask press publishers for their permission to publish excerpts of their articles on Google News “free of charge”. Press publishers who would refrain from giving this permission would be taken off the index of Google News. The vast majority of press publishers gave the requested permission.

As a reaction, the collecting society for the press publishers’ right “VG Media” filed for investigations of the German Cartel Office against Google alleging abuse of market power. However, the Cartel Office refused to take any action. The Regional Court of Justice in Berlin also decided that Google was not abusing its market power. VG Media subsequently filed at the same court in Berlin for a declaratory judgment that Google was unlawfully exploiting the press publishers’ right. The filing presupposes that Google News does not fall under the “snippet”-exemption of Sec. 87f UrhG. The case is still pending.

Press publishers’ right in Spain

Spain introduced a press publishers’ right on the 15 January 2015, when a provision of the new Spanish Copyright Act entered into force, which states that periodical or press compilations made in the form of reviews, will be considered as quotations. However, when collections of newspaper articles consist essentially of their mere reproduction (and such activity is carried out for commercial purposes), provided that the author has not expressly objected, the publisher shall be entitled to receive a fair compensation. In other words, this provision requires services which post links and excerpts of news articles to pay a fee to the publishers, a right which cannot be waived by publishers.

The right of the authors to receive a fair compensation led some major players in the field to adopt the decision of shutting down their services.

Further, a representative of a large media group has said that they will not charge fair compensation to aggregators of news who essentially reproduce the content created by publishers, stating that publishers should be free to waive this right since aggregators play an important role by increasing  traffic to publishers’ websites.

All in all, the measure has not had the desired effects in Spain either and has reinforced the diverging stances that have been taken about these rights in the digital publishing industry.

Press publishers’ right in Italy

At present Italy has opted for an interim solution, with protection arguably already given to editors by current Italian Copyright law (Law n. 633 of 1941). Article 101 b) Copyright Law prohibits the direct reproduction of information or news, published or broadcast, for profit, both by newspapers or other periodicals or by broadcasting organisations.

The Italian Federation of Editors has reached an agreement with Google to promote Italian press online with enhanced protection for the author’s rights and the contents of the work. Under the agreement content is monetised through revenue sharing mechanisms and Google analytics. In addition, Google has announced an investment of €12 million in a system to prevent infringing works from appearing in search results.

So what is the future for the press publisher’s right?

The Copyright Directive is currently being reviewed by the European Council and European Parliament and a final text is not expected until the end of the summer at the earliest. This will then need to be implemented by Member States within 12 months. So it might still be some time before we have a clear idea of the scope of the EU press publishers’ right. However, it is clear from the implementation of equivalent rights in Germany and Spain that this is unlikely to be without problems and in fact may be unsuccessful in realising the hopes of press publishers in eliminating the issues they face with the move to digital media.