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Impact assessment on the modernisation of EU copyright rules – rights in publications

Publishers are increasingly facing difficulties in relation to the digital exploitation of, and the enforcement of rights in, press publications such as newspapers and magazines. The changes to the way copyright-protected content is distributed and consumed in the digital environment have affected press publications in a specific way. The publishing industry is in the middle of a shift from print to digital.

Print circulation of daily newspapers has been constantly declining for years, a trend that is expected to continue. Digital audiences of newspapers and magazines have been growing exponentially. Despite the growing success of publishers’ content online, the increase of publishers’ digital revenues has not made up for the decline of print. In addition, news publishers report that the current decline of the industry has already led to closing down or reducing their editorial teams, in particular in the case of smaller and regional newspapers. Several factors may explain this situation.

On the one hand, press publishers have traditionally made available online large proportions of their content for free, since the early days of the internet. This business model was sustainable when print revenues ensured sufficient returns of investments and the internet was an additional source of brand exposure and advertising revenues. With the decline of print, publishers have become increasingly dependent on the monetisation of their digital content, but they manage to do so today only to a limited extent. Paywalls and B2C digital-subscription offers are being increasingly proposed, in particular by the main newspaper and magazine brands, but today they only account for around 10 % of news publishers’ online revenues.

Freely-available content remains crucial as it attracts advertising revenues, which are today still the main contributor to press publishers’ digital revenues. However, the large proportion of press publishers’ content available online has also favoured, over time, the emergence of online service providers, such as social media and news aggregators, which base in full or in part their business models on reusing or providing access to such content.

The relation between these online services and press publishers is complex. On the one hand, they increase the visibility of press content and bring new traffic – and thus advertising revenues – to newspaper websites. On the other hand, 47 % of consumers browse and read news extracts on these websites without clicking on links to access the whole article in the newspaper page, which erodes advertising revenues from the newspaper webpages.

Press publishers have attempted to conclude licences with online service providers for uses of their content online, and sought to participate in the advertising revenues generated by their content on third parties’ websites. However, they have generally not managed to do so, despite the fact that these services often engage in copyright-relevant acts. More generally, the opportunity offered by the digital environment has not translated into the emergence of a solid B2B licensing market for online uses of press publications. Press publishers generally point out that B2B-licence revenues are a very low proportion of their online revenues and that they face considerable difficulties in concluding licences with online service providers.

Services distributing digital press publishers’ content to consumers based on licensing agreements are just beginning to be tested now. Cooperation agreements between major online service providers and publishers, which aim at supporting technological solutions to improve readers’ experience (in particular on smartphones) and generate higher advertising revenues, are beginning to emerge. However, these agreements generally do not specifically target the use of content by online service providers. The problem described above does not affect publishers other than press publishers to the same extent, due to the different nature of their products and business models.

Book publishers generally do not make their content freely accessible online in the same way press publishers do. As a consequence, online services such as news aggregators and social media hardly play a role as distributors of book content at the moment. The online distribution of e-books generally follows a more traditional linear model, based on copyright licences between publishers and online distributors (with or without the intervention of intermediaries), in many cases large multimedia online service providers.

Scientific publishers generate revenues either through subscription licences with universities and similar establishments or, when they make available their content online under the open access model, by charging authors for the publication. Because of the specific nature of the scientific publications, advertising revenues as well as traffic generated by online service providers hardly play a role in this market.

An additional, more specific problem which affects all publishers, in particular book and scientific publishers, relates to their ability to receive compensation for uses of their publications under exceptions. Publishers bear the economic risks linked to the exploitation of the works contained in their publications and may suffer losses when such works are used under exceptions or limitations to copyright. However, they currently face legal uncertainty as regards their ability to receive compensation for such uses.

National situationMember State
Compensation paid to both authors and publishers for uses under one or both of the private copying / reprography exceptionsAT, BE, BG, CZ, DE, EE, ES, EL, FR, HU, HR, LT, LV, NL, PL, PT, RO, SI, SK
Compensation paid only to authors for uses under private copying / reprography exceptionDK, FI, IT, SE
No compensation for uses under private copying / reprography exceptionCY, LU, MT
No private copying / reprography exceptionIE, UK

EU copyright law recognises and incentivises the economic and creative contribution of film producers, phonogram producers and broadcasting organisations by granting them related rights. Publishers across different sectors also play an important role in assembling, editing and investing in content. However, today, despite playing a comparable role in terms of investments and contribution to the creative process to film and phonogram producers in their respective industries, publishers are not identified as rightholders under EU copyright rules. They generally exploit and enforce their content on the basis of the rights transferred to them by authors (writers, journalists, photographers, etc.). Some MS grant a specific additional protection to publishers as authors of collective works (e.g. PT).

In addition, other MS (notably DE and ES) have recently adopted national measures (generally referred to as ‘ancillary rights’) to grant publishers specific protection as regards uses of their content online largely as an attempt to address the above described problems related to the exploitation and enforcement of rights in press publications in the digital environment. The DE law grants an exclusive right covering specifically the making available of press products to the public, which has been implemented by the main press publishers under collective management schemes. The ES law establishes an obligation for online service providers to pay compensation to publishers (which cannot be waived) for uses of their content online.

None of these two recent ‘ancillary rights’ solutions at national level have proven effective to address publishers’ problems so far, in particular as they have not resulted in increased revenues for publishers from the major online service providers. This incomplete protection in the EU causes legal uncertainty, notably as regards exploitation of press publications through B2B licences, and makes enforcement complex and sometimes inefficient (e.g. proving the chain of title of all rights related to a publication). Moreover, different approaches to the protection of publishers at national level result in fragmentation in the single market.

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