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SWD IA on the EU copyright modernization – impacts of second option for press publishers

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

Under this option, press publishers would still need to acquire authors’ authorisation to publish their contributions in a newspaper or a magazine, as they do today. Therefore, the relationship authors-publishers would remain untouched. In contrast, this option would provide these publishers with a substantial added value when it comes to licensing out their publications for online uses by third parties, something that is increasingly important for them in the digital environment.

While a self-standing related right would not remove the need from publishers to acquire authors’ rights also for the purposes of further licences with third parties, it would nevertheless provide them with a clearer position in the context of negotiations with them as they will be able to rely on their own right. Harmonised protection at EU level would further increase the legal certainty to the benefit of press publishers.

Enforcing transferred rights is burdensome and time-consuming if the number of content contributors is very high, as it is typically the case with press content. In contrast, under this option publishers would enforce their own rights. They would be treated by the national courts as original rightholders, not as licensees. As a result, publishers would be able to fully benefit from the remedies provided for under the Enforcement Directive and the related national laws. Consequently, getting injunctive relief or instituting infringement proceedings before the court would be swifter.

More efficient enforcement is therefore likely to result in increased licensing opportunities for publishers as it would discourage online service providers from infringing publishers’ rights and incentivise them to seek the required licences. This option would increase press publishers’ bargaining power vis-à-vis third parties, thus creating new licensing opportunities in the digital environment. The expected reduction of piracy in this sector is likely to increase revenues related to the legal exploitation of press publications (i.e. the reduction of piracy would redirect readers to legal sources).

The positive impacts on publishers of the protection granted under this option would be reinforced by its EU scale, thus providing a more effective protection than under different national laws. In particular, intervention at EU level is expected to strengthen publishers bargaining powers in a more effective way than it has happened under national measures such as the ‘ancillary rights’ adopted in DE and ES, where major online service providers either closed down their news aggregation services (ES) or concluded free licences for the use of publishers’ content (DE) which has not generated any remuneration for publishers so far.

Moreover, the related right granted to press publishers under this option would be different from the DE law, which can only be exercised against specific categories of online service providers, and from the ES law, as it would be an exclusive right and not an unwaivable compensation. Accordingly, the related right recognised to publishers at EU level would leave press publishers a greater margin of manoeuvre to negotiate different types of agreements with service providers than it has been the case in DE and ES and is therefore expected to be more effective for them in the long run (notably as it will allow press publishers to develop new business models in a flexible way).

The effects on press publishers described above would materialise in all the three scenarios considered as regards the term of protection. Scenario A (10 to 50 years) would place press publishers in a situation comparable to that of other related rightholders. Scenario B (5 to 10 years) would address the problem of press publishers as regards the use of their content by online service providers such as news aggregators and social media, and would also provide publishers with a clearer legal framework when concluding licensing agreements with service providers having a different business model (e.g. distributors of multi-publishers content, services providing access to news archives).

Scenario C (1 to 5 years) would address specifically the situation concerning online service providers such as news aggregators and social media but may not be fully future-proof as regards exploitation of press content by other businesses. Under this option, publishers other than press publishers would not be affected, as per the baseline scenario. Therefore, problems faced by these publishers as regards claims for compensation would not be addressed.

Improvements to the press publishers’ bargaining position under this option could indirectly have a positive impact on authors and other rightholders working in this sector insofar as publishers transfer part of these benefits to the authors in terms of job creation or better salaries/remuneration (which would vary on a case-by-case basis). Authors, journalists in particular, have expressed concerns, in the context of the public consultation, that a publishers’ right could make it more difficult for them to exploit their works separately from the publisher.

The related right under this option would protect the value added by the publisher, which in a print product is not always easily separable from the author’s work (in contrast with, for instance, a cinematographic work, where the subject-matter of protection of the producer, the film, is clearly different from the script, which is a text-based work). Today, when a journalist grants a publisher a non-exclusive authorisation to use an article, he generally remains entitled (as the author of the work) to further use it (e.g. to authorise the use by a third party or to publish it himself in a collection or anthology).

This is common industry practice even when the author’s original manuscript has been subject to amendments during the editing process carried out by the publisher. Intervention in EU law under this option will clarify that the introduction of a related right for press publishers does not affect authors’ ability to exploit their works independently. Provisions to this effect exist in MS laws granting self-standing protection to publishers. The three scenarios (A, B, C) as regards the term of protection should be generally neutral on authors considering that the related right granted to publishers will not affect authors’ rights.

The impact of this option on service providers would depend on the size, bargaining power and business model of the different players. The clear identification of press publishers as rightholders is likely to prompt more online service providers to conclude agreements with publishers for the use of their content online, thus accelerating the cooperation which is starting to emerge between larger online service providers and the publishing sector. The introduction of a new right is not likely to substantially affect the ongoing initiatives and would probably foster the conclusion of more agreements between the major internet players and the publishing industry in the medium to long term.

Some service providers which already conclude licences covering specifically the use of digital press content, such as the media monitoring services, have expressed the concern that licence fees may increase as a result of the introduction of a new publishers’ right. In practice, licence fees would depend on specific negotiations and business models and not on the legal basis on which agreements are concluded (transferred authors’ rights today, press publishers’ rights under this option). Therefore, publishers may not have an interest in raising licence fees in licensing markets which already function today.

In summary, the main impacts of this option would affect those online services providers which are not concluding licences for the reuse of publishers’ content today when they should in principle do so, pursuant to copyright law. Therefore, neither the services which today have agreements with publishers nor new entrants in this market would be negatively affected in terms of additional costs or fees. As indicated in the description of the options, the introduction of a new related right for press publishers would not alter the scope of the right of making available to the public. Therefore, the question whether certain uses, including hyperlinking and browsing, are today copyright relevant under EU law, would not be affected by this option.

Finally, the introduction of uniform rules at EU level under this option would have the positive effect for service providers to reduce fragmentation of the rules protecting publishers across MS, making it easier for them to conclude licences for multi-territorial uses of publishers’ content. This aspect, together with better market conditions supporting the emergence of new B2B licence opportunities for press products, could foster innovation and facilitate the emergence of new and diverse business models of digital press content distribution (such as streaming, access to broad multi-brand catalogues of different newspapers and magazines, etc).

Service providers could in principle be affected by the three term of protection scenarios (A, B, C) to a varying extent, depending on their business models (i.e. whether they target the distribution of daily news, as it is generally the case of online service providers such as news aggregators and social media, or rather longer term uses, such as access to newspaper archives). However, in practice, the impact of a press publishers’ right on these stakeholders may not substantially change under the three scenarios.

This is due to the fact that service providers would have in any event to seek authorisation for the use of press content even after the expiry of the publishers’ right because they would still need to clear – as it is already the case today – the rights of the authors in press publications (which have a longer term of protection: i.e. life of the author plus 70 years).

Better market conditions for the press publishing industry could give rise to the development of innovative offers for the digital distribution of press content, with larger catalogues and more choice. Consumer organisations have raised concerns that granting additional protection to publishers could negatively affect consumers as a result of the consequences that they believe this intervention could have on online services providing access to press content online. The extent to which this may happen in practice depends at least in part on the impact of the option on service providers (see above), including as regards the different scenarios for the term of protection (scenarios A, B and C, above).

However, problems experienced by consumers in ES – which are often quoted as a source of concern in relation to a possible intervention on publishers at EU level (given that a major news aggregators decided to discontinue its service in ES) – are not expected to arise under this option since the related right proposed is different from the unwaivable compensation measure under the ES ‘ancillary rights’ law.

Positive impacts on copyright as property right and the right to freedom of information, resulting from the fact that this option is expected to increase the level of protection of press publications and to foster the quality of journalistic content.

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