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Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive2. THE PROPOSED DIRECTIVE ON COPYRIGHT IN THEDIGITAL SINGLE MARKETOn September 14, 2016, the European Commission introduced a proposal for a Directive onCopyright in the Digital Single Market.1 The proposal was supported by an ExplanatoryMemorandum and three volumes of ‘Impact Assessment.’ 2The Proposal has now been considered: (i) By the European Economic and Social Committee, Jan 25, 2017;3 (ii) By the Committee of the Regions, February 8, 2017. The rapporteur was Mauro D'Attis(EPP/It);4 (iii) By the Committee on Culture and Education, which produced a draft Report onFebruary 6, 2017, and an Opinion on 14 July, 2017 (Rapporteur, Marc Joulaud (EPP/Fr).5 (iv) By the Internal Market and Consumer Protection Committee (IMCO), June 14, 2017.The rapporteur was Catherine Stihler (S&D/UK).6 (v) By the Committee on Civil Liberties, Justice and Home affairs (LIBE (rapporteur MichałBoni (EPP/Pol). A draft report was issued on May 22, 2017. Its proceedings are limited toArticle 13 of the proposed Directive. (vi) By the Committee on Industry, Research and Energy (ITRE) on July 12, 2017. 7 Therapporteur was Professor Zdzisław Krasnodębski (ECR/Pol). (vii) By the Legal Affairs Committee, which produced a draft report on March 8, 2017.The rapporteur was Therese Comodini Cachia (EPP/Malta). As far as we are aware 996amendments to the Commission proposal have been tabled. As Therese Comodini Cachialeft the European Parliament in order to take up a seat in the Maltese Parliament, AlexVoss (EPP/Ger) has been appointed as rapporteur for the final report.Amongst the many reforms, two of the most controversial are Article 11, introducing a presspublishers’ right, and Articles 14-16, which deal with regulation of contracts betweenauthors/performers and licensees and transferees who exploit their works/performances.Both sets of provisions are situated in Part 4, on ‘measures to achieve a well-functioningmarketplace for copyright.’The two sets of provisions are attempts to respond to two distinct problems, though they areboth underpinned, first, by a commitment to the view that copyright is a tool to sustain theavailability of a plurality of voices, and, second, by a perception that market operations are(or are no longer) adequate to achieve this. Thus, news publishers are seen as vital todemocracy, but suffering under changes associated with digitisation, to an extent to whichpolicy-makers are concerned with the sustainability of these organs. Likewise, independentCOM(2016)593 final at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri eu-copyright-rules3OJ C 125/27 (OJ April 21, 2017).4SEDEC-VI-019, 121st Plenary Session, 8-9 Feb, 2017; 2017/C207/14 in OJ C 207/80 (OJ, June 30, do?pubRef 2bDOC%2bPDF%2bV0%2f%2fEN6PE 599.682v02-00 on etDoc.do?pubRef 2bDOC%2bPDF%2bV0%2f%2fEN1211

Policy Department for Citizens' Rights and Constitutional Affairsauthors need to be able to make a living from the exploitation of their works if Europe is tomaintain a thriving culture and marketplace of ideas.Beyond this, however, the two problems are relatively distinct (and the proposals are,according to some commentators,8 in conflict in so far as the press publishers right wouldmake it more difficult for authors to exercise their rights). 9 It is therefore economical to treateach in turn.8 van Eechoud, M. (2017), A publisher’s intellectual property right: implications for freedom of expression, authorsand open content policies, Research paper for OpenForum Europe: rs-right FINAL.pdf, 37.9 Though note various proposals to amend proposed Art. 11 to create an obligation to pay fair remuneration tocontributors.12

Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive3. THE PROPOSED PRESS PUBLISHERS RIGHT (ART 11)3.1.BackgroundAlthough print publishers have long been able to claim copyright indirectly from thecontributions of their journalists, historically, copyright has not been a key part of theirbusiness model.10 For sure, there has been a tradition of licensing so-called “cuttingsservices”, but these revenues have been minor compared with revenues from subscriptionsand sales and, especially, advertising.Digitisation has significantly affected this business model, but, in contrast to the ‘copyrightindustries’, such as the record industry, the threat to press publishers does not come fromdigital piracy or ‘peer to peer’ copying. Rather, it is changes in advertising practice associatedwith the Internet that have most dramatically affected print newspapers, as advertisers havereduced expenditure on print in favour of online advertising. In addition, newspapers havetried to move their outlets to the Internet, using different models (freemium, subscription,paywall, advertising) with inconsistent levels of success. 11 This has often brought with it adecline in print sales. Perhaps not surprisingly, declines in sales and declines in advertisingrevenue frequently mean declines in income and threaten the very existence of some papers.At the same time, we have seen the emergence of so-called ‘news aggregators’, Internetservices providing users with collection of links, and sometimes excerpts, from onlineversions of newspapers. Sometimes these aggregators appear to operate gratuitously, aswith Google’s GoogleNews service or the Squidapp; sometimes they are paid by clients toidentify stories reflecting the client’s specific interests (Meltwater, Ubermetrics or the smallentity CutBot.)12 Some publishers have responded to these practices by seeking to extractlicence fees, sometimes using litigation. Indeed, a case concerning the Danish operator‘Infopaq’ made its way twice to the CJEU.13 Such litigation has, however, not proveduniversally successful, though it has operated as an important backdrop to certain voluntaryinitiatives by Google.14It is in this environment that a number of Member states have sought to develop new rightsfor press publishers.In 2013, after 4 years of debate, Germany introduced the one-year neighbouring right forpress publishers covering the making available for commercial purposes of publications andfragments thereof (but not the smallest text excerpts). This is known as theLeistungsschutzrecht and is found in Sections 87f through 87h of the Copyright Act. Atranslation, by Ute Reusch, states:15Danbury, R, ‘Is Intervention Appropriate?’ Evaluating potential legal responses to threats to the production /working-papers11EC, Impact assessment, p 156, 160.12On Cut-Bot, see presentation of James McKenzie at CIPIL-IViR (2016).13Infopaq, Case C-508, ECLI:EU:C:2009:465 ; Case C-302/10, ECLI:EU:C:2012:16.14CEIPI, 6-7.15http://www.gesetze-im-internet.de/englisch urhg/englisch urhg.html#p06161013

Policy Department for Citizens' Rights and Constitutional AffairsThe German Neighbouring Right for Press PublishersSection 87fPublishers of newspapers and magazines(1) The producer of a press product (publisher of newspapers and magazines) shall havethe exclusive right to make the press product or parts thereof available to the public forcommercial purposes, unless it consists of individual words or very short text excerpts.Where the press product has been produced within a company, the owner of the companyshall be the producer.(2) A press product shall be the editorial and technical preparation of journalisticcontributions in the context of a collection published periodically on any media under onetitle, which, following an assessment of the overall circumstances, can be regarded aslargely typical for the publishing house and the overwhelming majority of which does notserve self-advertising purposes. Journalistic contributions are, more specifically, articlesand illustrations which serve to disseminate information, form opinions or entertain.Section 87gTransferability, duration of and limitations on the right(1) The right of the publisher of newspapers and magazines in accordance with section 87f(1), first sentence, shall be transferable. Sections 31 and 33 shall apply mutatis mutandis.(2) The right shall expire one year after publication of the press product.(3) The right of the publisher of newspapers and magazines may not be asserted to thedetriment of the author or the holder of a right related to copyright whose work or subjectmatter protected under this Act is contained in the press product.(4) It shall be permissible to make press products or parts thereof available to the publicunless this is done by commercial operators of search engines or commercial operators ofservices which edit the content. Moreover, the provisions of Chapter 6 of Part 1 shall applymutatis mutandis.Section 87hRight of participation of the authorThe author shall be entitled to an appropriate share of the remuneration.In 2014, Spain (influenced by recent initiatives in Germany) added a new Article 32(2) to itsCopyright Act, modifying the quotation right permitting the use of “non-significant fragmentsof content available to the public”, where the source of the content is ‘periodicals or regularlyupdated websites’, and where the material in question ‘has the purpose of informing, creatingpublic opinion or entertainment’, but rendering the freedom subject to payment of equitableremuneration.16 Professor Xalabarder has translated the provision:The Spanish Copyright Act (Art.32(2))Art.32. Quotations, reviews and illustration for teaching and scientific researchpurposes.2. The making available to the public by providers of digital services of contentsaggregation of non-significant fragments of contents, available in periodical publications orin periodically updated websites and which have an informative purpose, of creation ofpublic opinion or of entertainment, will not require any authorization, without prejudice ofthe right of the publisher or, as applicable, of other rights owners to receive an equitablecompensation. This right will be unwaivable and will be effective through the collectiveXalabarder, (2014): ‘The Remunerated Statutory Limitation for News Aggregation and Search Engines Proposedby the Spanish Government; Its Compliance with International and EU Law’ (infojustice.org, 2014)(http://infojustice.org/archives/33346); Xalabarder at CIPIL-IViR, 2016; CREATe, 2016, 20.1614

Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directivemanagement organizations of intellectual property rights. In any case, the makingavailable to the public of photographic works or ordinary photographs on periodicalpublications or on periodically updated websites will be subject to authorization.Without prejudice to what has been established in the previous paragraph, the makingavailable to the public by the providers of services which facilitate search instruments ofisolated words included in the contents referred to in the previous paragraph will not besubject to neither authorization nor equitable compensation provided that such makingavailable to the public is done without its own commercial purpose and is strictlycircumscribed to what is indispensable to offer the search results in reply of the searchqueries previously formulated by a user to the search engine and provided that the makingavailable to the public includes a link to the page of origin of the contents.Both initiatives seem primarily targeted at aggregators and, possibly, search engines.Given this background, and the emergence of such legal initiatives in Member States, 17 theCommission has proposed a ‘related right’ for press publishers in Article 11 of the proposedDirective.18 The idea would be to confer on publishers their own ‘related right’, similar to the‘neighbouring rights’ given to other investors in broadcasts, sound recordings and filmfixations. The goal is to support ‘a free and pluralist press.’ As recital 31 explains:“A free and pluralist press is essential to ensure quality journalism and citizens' accessto information. It provides a fundamental contribution to public debate and the properfunctioning of a democratic society. In the transition from print to digital, publishersof press publications are facing problems in licensing the online use of theirpublications and recouping their investments. In the absence of recognition ofpublishers of press publications as rightholders, licensing and enforcement in thedigital environment is often complex and inefficient.”The underlying idea is that it is only fair that press publishers are granted their own right inorder to relieve them of the burden of having to prove ownership of copyright in eachjournalistic output. Without such a right, press publishers’ abilities to license and enforcerights in the digital environment is unduly complex. This is because they have to rely onassignments and exclusive rights granted by those who contribute to the publications(journalists or photographers).Article 2(4) of the proposed Directive would define ‘press publication’ as“a fixation of a collection of literary works of a journalistic nature, which may alsocomprise other works or subject-matter and constitutes an individual item within aperiodical or regularly-updated publication under a single title, such as a newspaperor a general or special interest magazine, having the purpose of providing informationrelated to news or other topics and published in any media under the initiative,editorial responsibility and control of a service provider.”Xalabarder (2014) raised doubts about whether the Spanish approach was compatible with Article 10 of the BerneConvention. For scepticism as to whether either initiative is compatible with EU law, see Rosati, E., ‘NeighbouringRights for Publishers: Are National and (Possibly) EU Initiatives Lawful? (2016) 47 IIC 569.18The idea was first mooted in European Commission, "Public Consultation on the Role of Publishers in the CopyrightValue Chain and on the ‘Panorama Exception’" (23 March to 15 June 2016), introductory section, "The role ofpublishers in the copyright value chain": e-chain-and-panorama-exception1715

Policy Department for Citizens' Rights and Constitutional AffairsThis complex, multi-clause definition, includes print newspapers – Le Monde, Ekstrabladet,La Gazzetta della Sport, The Times, El Mundo, or Frankfurter Allgemeine Zeitung – whetherin their print or online versions. Recital 33 seeks to clarify the scope, and reiterate itslimitation to ‘journalistic publications.’ It states“For the purposes of this Directive, it is necessary to define the concept of presspublication in a way that embraces only journalistic publications, published by aservice provider, periodically or regularly updated in any media, for the purpose ofinforming or entertaining. Such publications would include, for instance, dailynewspapers, weekly or monthly magazines of general or special interest and newswebsites.”In contrast“Periodical publications which are published for scientific or academic purposes, suchas scientific journals, should not be covered by the protection granted to presspublications under this Directive.”Thus it would not cover Annales de chimie: Science des matériaux, Cahiers du cinéma, CriticalInquiry, Giornale storico della letteratura italiana, Nature, the New England Journal ofMedicine, October or Representations. In between are a large number of online and offlineentities that are not clearly within or outside the definition.Article 11 goes on to detail the right.The proposed Article 11Article 11 Protection of press publications concerning digital uses1. Member States shall provide publishers of press publications with the rights providedfor in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their presspublications.2. The rights referred to in paragraph 1 shall leave intact and shall in no way affect anyrights provided for in Union law to authors and other rightholders, in respect of the worksand other subject-matter incorporated in a press publication. Such rights may not beinvoked against those authors and other rightholders and, in particular, may not deprivethem of their right to exploit their works and other subject-matter independently from thepress publication in which they are incorporated.3. Articles 5 to 8 of Directive 2001/29/EC and Directive 2012/28/EU shall apply mutatismutandis in respect of the rights referred to in paragraph 1.4. The rights referred to in paragraph 1 shall expire 20 years after the publication of thepress publication. This term shall be calculated from the first day of January of the yearfollowing the date of publication.It is worth noting from the outset the following key features of the press publishers right: (i) This is an exclusive right (like the German law), rather than a condition attaching toan exception (as in Spain);16

Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive (ii) The proposed right would confer two rights: reproduction and making available rights; (iii) The rights are limited to “digital uses;”19 (iv) Recital 33 seems to seek to clarify that hyper-linking is not covered. It states ‘[t]hisprotection does not extend to acts of hyperlinking which do not constitute communicationto the public.’ How

Market (2016): the proposal for a press publishers’ right (Article 11); and the three draft articles designed to improve the contractual position of authors (Article 14-16). The proposed right for press publishers (Article 11) has proved extremely controversial. Building on two recent