The proposed Publisher’s Right strikes a fair balance between the legitimate interests of all parties involved and therefore appears proportionate. It has been criticised that the decline in newspaper revenues does not have anything to with the activities of news aggregators or search engines.
Opponents of the Publisher’s Right criticise that the Publishers Right would lead to a layering of rights. That is because, it is argued, a press publication would be at the same time subject to the journalists’ copyright, the sui generis database right and the Publisher’s Right’. This accumulation of rights is, however, nothing unusual. The same applies to films and phonograms which are also subject to several rights, without this affecting the right holders’ positions. The author’s copyright and the Publisher’s Right have different subject matters and points of reference. They are complementary, not rivalling.
The current definition of ‘press publication’ contains crucial criteria to limit the protection to such publications that truly merit special protection. In particular, the following essential elements of the definition are designed to acknowledge the corresponding investments that are unique to press publications and to limit the scope of the publishers’ right to those publications which truly merit protection:
- ‘Collection of literary works of a journalistic nature’: A journalistic work is the very basis for the protection since a network of trained employed or freelance journalists is an essential precondition for quality press. Because there has to be a ‘collection’ of literary works, it is clear that individual articles cannot constitute a press publication.
- ‘Within a periodical or regularly-updated publication’: In contrast to most blogs or individual articles, the press pursues a long-term information mandate through repeated publications.
- ‘Under a single title’: The title of a press publication is the central element for the creation of trust in the information provided: users rely on the trustworthiness of information published under a certain brand. The set-up of such a brand requires continuing investments. Conversely, anonymous articles or publications of a natural person (under his/her own name) are not covered.
- ‘Initiative, editorial responsibility’: The editorial responsibility of press publishers distinguishes reliable information from unreliable sources. Consequently, this responsibility requires significant investments in the verification of information and the editing of articles. The corresponding legal liability for any false information ensures the maintenance of the necessary high standards.
Opponents of the Publisher’s Right allege that the inclusion of snippets into the scope of the right would go beyond the protection granted by other rights and would endanger the freedom of expression.
First, however, it is crucial to note that if the Publisher’s Right did not cover snippets, it would add almost nothing to the current protection of press publications. The main reason why 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. To show that an article has been reproduced ‘in part’, the publisher must prove that the extract taken by the aggregator covers a part of the article that itself is ‘original’.
Second, with view to the scope of protection of other related rights it is only consequent if not inevitable that the Publisher’s Right includes snippets. Pursuant to Recital 34 of the Proposed Directive, ‘the rights granted to the publishers should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC’. Related rights for phonograms and films already cover the reproduction of even the smallest part. Related right protects the economic, organizational and technical effort for the fixation of works, tones, films, etc. The underlying effort is, however, made for the whole subject matter (e.g. a phonogram) and there is no part of the subject matter, no matter how small, which does not relate to a part of this effort and which does not benefit from the protection.
The same is true for the Publisher’s Right: the editorial responsibility goes hand in hand with the substantial organisational and financial efforts required to ensure a thorough verification of any published content. As even short text extracts can trigger legal liability for a publisher, its editorial responsibility relates to all parts of a press publication. Therefore, it is appropriate that the Publisher’s Right covers all parts of a press publication that are subject to the publishers’ editorial responsibility and corresponding liability, including any snippets.
Recital 33 of the Proposed Directive sufficiently clarifies that the ‘protection does not extend to acts of hyperlinking which do not constitute communication to the public’. Moreover, from a legal point of view, it is difficult to find hyperlinks that could ever fall under the proposed right. Sharing news posts in social media, for example, would not be hindered. Firstly, this is because any type of hyperlinking, including framing, is explicitly precluded from the Publisher’s Right (Recital 33 of the Proposed Directive). Secondly, it is typically the press publisher that enables the ‘sharing’, namely through the corresponding sharing buttons on its website (e.g. from Facebook, Twitter and Google+). By doing so, press publishers provide at least implied consent to the use of their works by consumers via ‘sharing’. Thus, even if ‘sharing’ was considered as a communication to the public, it would be legal due to the publisher’s consent.
The German legislation has succeeded in preventing the further rise and expansion of news aggregators. One crucial disadvantage in the negotiations was the fact that the collecting society, VG Media, did not represent all German publishers. Google took advantage of this situation by announcing that it would render the publishing content of companies that insist on their right less visible as compared to content of rival publishers that waive their right. In contrast to other commercial users, Google refuses to enter into licensing agreements. In light of Google’s de facto monopoly on the search market, the individual publishers saw no alternative but to consent in order to remain findable. The situation is merely a result of the exceptional bargaining power that platforms which act as gatekeepers to a certain audience have in playing off content providers against each other that are dependent on reaching this audience.