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SWD IA on the modernization of EU copyright rules – options to introduce press publishers right

Baseline

No policy intervention. Under this option, the use of publications would remain governed by the rules applicable to the rights transferred to press publishers by authors and other rightholders. Issues related to the different bargaining position of press publishers and online service providers would not be addressed, without prejudice to the possible application of competition law.

This option would rely on market developments and stakeholders reaching voluntary agreements to cooperate and find win-win solutions concerning the online dissemination of publishers’ content, notably as regards newspaper and magazine online content. At the same time, certain MS could decide to amend their national legislation to introduce rights for press publishers at national level, which is likely to be ineffective and increase fragmentation of copyright rules in the single market.

Some MS may try to address the problem of legal uncertainty as regards publishers’ (across different sectors) ability to receive compensation for uses under private copying, reprography and other exceptions through national law within the boundaries of the current EU rules, including the case law of the CJEU. Other MS may hesitate to do so in the absence of EU intervention because of the situation of legal uncertainty described above.

Most online service providers, such as content aggregators and social networks, oppose legislative intervention and support the status quo, as they consider that the relationships between them and press publishers should be left to the market. Most publishers consider that the status quo cannot solve the identified problems.

Option 1

Encouraging stakeholders’ dialogue and cooperation to find solutions concerning the dissemination of press publishers’ contents

Under this option, the Commission would encourage stakeholders, namely press publishers and online service providers, to identify collaborative solutions to facilitate the conclusion of agreements for the online use of press publishers’ contents. Notably, the Commission would:

(i) launch a structured dialogue between press publishers and online service providers which would take stock of existing market initiatives and foster discussions to identify common solutions which would facilitate the emergence of cooperation agreements between the two categories of stakeholders; and

(ii) monitor the implementation of any resulting initiative and assess its effectiveness to ensure a fair distribution of revenues generated by the reuse of press publishers’ contents, in particular to assess whether specific EU legislative intervention at a later stage is warranted.

Option 2

Introduction in EU law of a related right covering digital uses of press publications

This option would ensure that the creative and economic contribution of press publishers (such as newspaper and magazine publishers) is recognised and incentivised in EU law, as it is today the case for other creative sectors (film and phonogram producers, broadcasters). The creation of a new category of rightholders (press publishers) would not affect the scope of the exclusive rights granted to them, notably the rights of making available to the public and of reproduction, which are harmonised under current EU copyright rules.

This means, in particular, that this intervention would not change the legal status of hyperlinks in EU law as it follows from the case-law of the CJEU according to which the “provision on a website of clickable links to works freely available on another website” does not constitute a copyright relevant act. The legal intervention would be as follows:

Protected subject-matter: The protection would benefit publishers of press publications such as newspapers and magazines according to the definition provided for in the legal instrument.

Rights covered: press publishers would be granted the exclusive rights of making available to the public and reproduction to the extent needed for digital uses.

Exceptions: exceptions and limitations laid down in EU copyright law, including new ones introduced by this legislative intervention, would apply.

Protection of TPMs and Rights-Management Information and enforcement: Articles 6, 7 and 8 of the InfoSoc Directive, as well as Directive 2004/48504 (the “Enforcement Directive”), would apply.

Relationship with authors’ rights: Publishers’ rights would apply without prejudice to authors and other creators’ rights on their individual contributions (news or magazine articles, photographs, videos) which compose the protected subject-matter (the final press product).

Term of protection: The term of protection of other related rights such as those granted to film and phonogram producers is usually 50 years. A shorter term of protection should be proposed in this case, taking into account the shorter economic cycle of the exploitation of press content (a relatively short period after publication). This is consistent with the situation in the MS where publishers are granted self-standing protection in copyright law and in which the term of protection is usually shorter than for other related rights. Three scenarios are considered in this IA:

  • A) Medium term of protection (between 10 and 50 years).
  • B) Short term of protection (between 5 and 10 years).
  • C) Very short term of protection (between 1 and 5 years).

Most press publishers, in particular the main newspaper and magazine organisations which replied to the public consultation, support the introduction of a new related right at EU level. Authors in the press sector (notably journalists) have expressed mixed reactions when replying to the public consultation. They generally consider that the bargaining power of the publishing industry in relation to online service providers should be strengthened but they express some concerns as to the possible negative impact that new rights granted to publishers could have on them.

Service providers, such as news aggregators and media monitoring services, are generally opposed to granting a new related right to press publishers as they claim that this would disincentive investments in innovative online services and create barriers for small businesses. Consumer organisations have expressed reservations as regards the possible introduction of a related right and the concern that this could make it more difficult for consumers to access existing press content online. At the same time, some consumer organisations recognise that a related right could have a positive impact on the quality of news content.

Option 3

As Option 2 plus introduction, in EU law, of the possibility for MS to provide that publishers may claim compensation for uses under an exception

In addition to the introduction of the new related right for online uses of press publications described under Option 2, this option would introduce a specific provision in EU law clarifying that MS may choose to establish in their legislation that where an author has transferred or licensed a right to a publisher, such a transfer constitutes a sufficient legal basis for the publisher to claim compensation for the uses made under an exception to the transferred or licensed right.

In the replies to the public consultation, publishers other than press publishers (book and scientific publishers) have mainly pointed to problems different from those raised by press publishers, notably the legal uncertainty as regards compensation for uses under exceptions. Therefore, publishers across different sectors are expected to be supportive of this option, as it establishes a margin of manoeuvre for MS to introduce national laws that foresee the distribution of compensation to publishers as derived rightholders, thus in principle allowing the existing systems in many MS to endure, although there may be adaptations necessary.

In the public consultation some authors have expressed support for such national arrangements, whereas others are sceptical regarding the extent to which they benefit from them. Consumers are expected to take a neutral view as regards the additional elements in Option 3, as this intervention in the area of compensation for exceptions should not increase the overall level of compensation due and hence of levies charged to final consumers.

Discarded option

The identified objectives could be achieved also by introducing in EU law a related right covering all publishers in all sectors (press, book, scientific publishers, etc.). However, such an option is not considered in IA as it would not be a proportionate way to address the problems faced by the publishing industry.

The problem related to press publishers’ difficulties to reach agreements and monetise use of their content by online service providers can be addressed by a related right applicable to press publications only (Options 2 and 3). The situation as regards publishers’ ability to receive compensation for uses under exceptions, which affect publishers across all sectors (news, book, scientific publications) can be addressed in a proportionate way by the introduction of the clarification concerning publishers’ claim for compensation (Option 3).

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