Strengthening the Press Through Copyright – lack of legal protection

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.

Despite their exposure to major economic exploitation, press publications are far from being sufficiently protected by existing copyright laws. While rights derived from authors are largely inapt to effectively fight third party exploitation, existing rights originally vested in publishers are not sufficient to address even the most common forms of exploitation.

In practice, rights derived from authors do not help to handle cases of (mass) exploitation. Firstly, many authors only grant non-exclusive licenses which do not enable press publishers to fight exploitation by third parties. Secondly, even where exclusive rights are assigned, publishers have to demonstrate a comprehensive chain of rights for a large number of articles by a vast number of authors for even more cases of infringement; an unmanageable task.

Lastly, copyright only protects (parts of) press publications which contain ‘original’ elements, i.e. ‘elements which are the expression of the intellectual creation of the author of the work’. Therefore, copyright infringements have to be assessed on a case-by-case basis, creating an unsurmountable barrier when it comes to platforms that automatically generate thousands of text extracts with varying sizes and content.

The protection granted by the sui generis database right to those press publications which fulfil its conditions is from the outset not sufficient to address the identified market failure. The database right generally requires the use of a substantial part of a database or, where only insubstantial parts are used, that the use is repeated and the systematic character is equivalent to the use of a substantial part. For many platforms, this will not be case.

In any event, considering that the specifics of every single case of a use of content have to be taken into account and that publishers have no insights into the technicalities of the platforms using their content, addressing the mass exploitation of their publications on the basis of the sui generis database right would be a very tough if not impossible task. As far as can be seen, no publisher has succeeded with such a case.

In contrast, the InfoSoc-Directive 2001/29/EC grants phonogram producers, producers of the first fixations of films and broadcasting organizations a related right for their (mere) first technical fixation of a phonogram, a film or a broadcast, irrespective of any specific minimum investment. Considering the similarities between press publishers, phonogram and film producers as well as broadcasters – both as regards the dissemination of their respective works and the technical means by which their contributions can be taken advantage of by free-riders – there is no further justification for denying press publishers the related copyright granted to phonogram producers, film producers and broadcasting organizations regarding the protection of their works.

The Publisher’s Right protects parts of press publications and hence provides publishers with an efficient tool against aggregators. The main reason the existing copyright of authors is insufficient for the protection of press publications against mass copying is the high threshold for demonstrating an infringement of an author’s right. A press publication, however, is defined as the ‘fixation’ of defined elements in Article 2 (4) of the Proposed Directive.

To demonstrate a ‘reproduction’ of a related right such as the Publisher’s Right it suffices to show that a part of this fixation has been used, irrespective of any originality of this part. Individual articles and snippets, i.e. short text extracts, may contain such parts of a fixation. This makes it much easier for a press publisher to act against any automated and mass copying of extracts of its publications. This is the key ratio of the proposed right.

The Publisher’s Right is an indispensable prerequisite for effectively fighting mass exploitation of press publications in the digital economy. It ensures that press publishers regain the control over the use of their products which is an essential requirement for the marketing of press publications. Instead of being dependent on a proven chain of derived author’s rights, publishers can now themselves negotiate with platforms exploiting their content.

Besides, structure and scope of the Publisher’s Right are in line with the related rights for other media disseminators under Article 2 and 3 of the InfoSoc Directive. None of these related rights requires a specific minimum investment. The protection is granted for certain activities, namely for the mere first technical fixation of a phonogram, a film or a broadcast, irrespective of the quality, relevance or originality of these activities. The same is the case for press publishers. Equally, the scope of the proposed related right for press publishers is in line with that of other related rights.