Strengthening the Press Through Copyright – why a publisher’s right is required

The briefing note by committee of legal affairs demonstrates that the new, related right for press publishers provided in Article 11 of the ‘Proposed DSM Directive’ is required to address pressing market failures in the area of the online press. The note also outlines why the proposed Article 11 is proportionate and the criticism raised against it by various stakeholders is not compelling.

Currently, the InfoSoc-Directive affords these rights, inter alia, to phonogram producers for their phonograms, to the producers of the first fixations of films for their films and to broadcasting organizations for fixations of their broadcasts. Each of these producers operate as media disseminators that produce ‘fixations’ of works which may contain material that is protected by copyright itself, for instance the script of a film or the melody of a song. The same applies to the fixation of press publications which contain copyright-protected literary works and images.

In line with the existing rights for the other media disseminators, the ‘press publication’, which shall be protected, is defined as ‘a fixation of a collection of literary works of a journalistic nature, which may also comprise other works or subject-matter and constitute an individual item within a periodical or regularly-updated publication under a single title’. In addition, this publication must have ‘the purpose of providing information related to news or other topics and published in any media under the initiative, editorial responsibility and control of a service provider’ (Article 2 (4) of the Proposed Directive).

According to Article 11 (2) of the Proposed Directive, the Publisher’s Right shall not affect any rights already provided to authors and other right holders. Neither may the Publisher’s Right be invoked against these right holders. Article 11 (3) of the Proposed Directive clarifies that all exceptions and limitations to copyright under Article 5 to 8 of the InfoSoc-Directive and under the Orphan Works Directive shall also apply to the publisher’s right. Pursuant to Article 11 (4) of the Proposed Directive, the Publisher’s Right shall expire 20 years after the publication of the press publication.

The Publisher’s Right pursuant to Article 11 of the Proposed Directive is justified and adequate against its economic background and legal environment.

First of all, the Publishers’ Right addresses a substantial market failure: today, new technical opportunities for the mass exploitation of press publications go hand in hand with strong economic incentives for companies to take advantage of these technical opportunities, and add up to detrimental effects for press publishers in Europe:

  • Press publications can be replicated and distributed globally through various digital platforms in the blink of an eye. Specialised aggregators can automatically scrape, store, re-combine and display full or parts of online press publications instantly. Printed press products can be scanned and distributed as PDFs.
  • There are strong economic incentives to mass-exploit press publications. It is the standard business model of the internet economy to publish attractive content on one’s website in order to attract internet users for advertising purposes or subscription fees. More content attracts more users, and more users mean higher advertising revenues or even subscription fees. These indirect network effects are inherent in multi-sided media platforms. The easiest way to gather attractive content, of course, is to take it from other websites or to encourage one’s users to upload third-party content in order to display it on one’s own site. There are numerous examples of platforms based on the aggregation of (third party) press content. Typically, these aggregators present the latest news on their homepages with headlines and a text extract, either based on a default or personalized selection of topics. A click on any of the news extracts makes even more content visible. Users are then invited to comment, review or to otherwise interact with the website. Thus, in contrast to ‘passive mediators’, many platforms actively select, rank and classify news publications according to their own methods and combine them to create new, tailored products. Many aggregators also deliver news results automatically by e-mail or SMS. This shows that the business model of such platforms aims to use third-party press publications to build up their own customer relationships in order to generate revenues and to ultimately keep users away from the source.
  • The effects of this exploitation are detrimental to press publishers. According to the Commission’s Impact Assessment, today 57 % of online users access newspapers through social media, news aggregators and search engines. Moreover, 47 % of these users only ‘browse and read news extracts on these websites without clicking on links to access the whole article in the newspaper page’. For instance, a study on Google News found that ‘a full 44 percent of visitors to Google News only scan headlines without accessing newspaper’s individual sites’, thereby ‘taking a significant share of traffic away’. The studies suggest that news snippets used by social networks, news aggregators, and search engines suffice to satisfy the primary information demand of nearly half of internet users.