Draft proposal for a directive on copyright in DSM – rights for publishers of news publications

A free and pluralist press is essential to ensure quality journalism and citizens’ access to information. It provides a fundamental contribution to public debate and the proper functioning of a democratic society. In the transition from print to digital, publishers of news publications are facing problems in licencing the online use of their news publications and recouping their investments. In the absence of recognition of publishers of news publications as right holders, licencing in the digital environment and online enforcement is often complex and inefficient.

The organizational and financial contribution of publishers in producing news publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry. It is necessary to provide a harmonised legal protection for news publications in respect of online uses within the European Union. Such protection can be effectively guaranteed through the introduction, in Union law, of rights related to copyright for the reproduction and making available to the public of news publications in respect of online uses.

For the purposes of this Directive, it is necessary to define the concept of news publication in a way that embraces only journalistic publication, published by a service provider, periodically or regularly updated in any media, for the purpose of informing or entertaining the general public. Such publications would include, for instance, daily newspapers, weekly magazines and news websites.

Periodical publications which are published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted to news publications under this Directive. This protection should not extend to news of the day as such or to miscellaneous facts having the character of mere items of press information which do not constitute the expression of the intellectual creation of their authors.

The rights granted to the publishers of news publications under this Directive should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC, insofar as online uses are concerned. They should also be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in Directive 2001/29/EC including the exception on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of that Directive.

The protection granted to publishers of news publications under this Directive should not affect the rights of the authors and other rightholders in the works and other subject-matter incorporated therein, including as regards the extent to which authors and other rightholders may exploit their works or other subject-matter independently from the news publications in which they are incorporated.

Therefore, publishers of news publications should not be able to invoke the protection granted to them against authors and other rightholders. This is without prejudice to contractual arrangements concluded between the publishers of news publications, on the one side, and authors and other rightholders, on the other side.

Publishers, including those of news publications, books or scientific publications, often operate on the basis of the transfer of authors’ rights by means of contractual agreements or statutory provisions. In this context, publishers make an investment with a view to the exploitation of the works contained in their publications and may in some instances be deprived of revenues where such works are used under exceptions or limitations such as the ones for private copying and reprography. In order to take account of this situation, Member States should be allowed to determine that when an author has transferred his rights to a publisher and there are systems in place to compensate for the harm caused by an exception or limitation publishers may be entitled to claim a share of such compensation.