Yesterday (26 March 2019) the EU Parliament voted to pass the draft Copyright Directive into EU law.  After adoption by the EU Council (representatives of Member State governments) and official publication, the EP’s adopted text will become EU law. Member States will then have until mid-2021 to implement it into their national laws. DSM Watch has already overviewed the whole Directive here, and looked at Article 13 on liability of user-uploaded content services (re-numbered Article 17 in the adopted text) here. Now we take a deeper dive into the heavily debated Article 11 on a new press publishers’ right (re-numbered Article 15 in the adopted text).

On the one hand, Article 15 is supposed to have a major impact on the digital single market as it provides press publishers a way to seek compensation when companies like search engines and news aggregators display excerpts of their news articles, allowing them to demand license fees. On the other hand, the provision may have an impact on smaller aggregators and media monitoring services, which may be afraid of the administrative burden that is created by the new Directive.

What does Article 15 do?

The very heart of the new provision is an extension to press publishers of certain rights granted by Directive 2001/29/EC (the “InfoSoc Directive”). The full text of Article 15 is here.

Once the Directive is implemented into national laws, publishers of press publications will have the exclusive right of reproduction, right of communication to the public and the right of making available to the public regarding the online use of press publications. This new exclusive right (granted by Article 15(1)) will mean the targeted news aggregators and media monitoring services will have to obtain licences prior to using the affected content.

Article 15 seeks to ensure that not only press publishers but also the authors of the journalistic works themselves are compensated fairly. This is enshrined in Article 15(5) and supplemented by Article 16 of the Directive. This says that in the event that the author has transferred or licensed his rights to the publisher, Member States may provide that such a transfer or a licence constitutes a sufficient legal basis for the publisher to be entitled to a share of the compensation for the uses of the work. The revenues are intended not only to benefit the creatives, but also the publishers.

What is caught?

The definition of press publications covers journalistic publications, published in any media in the context of an economic activity. By contrast, the protection does not affect websites, such as blogs, that provide information as part of an activity which is not carried out under the initiative, editorial responsibility and control of service provider, such as a news publisher.

Nor do the new publishers’ rights apply vis-à-vis individual users (at least if used for non-commercial purposes).

Hyperlinking is also exempted from the scope of protection. However, this exception likely means “pure” hyperlinking and probably does not apply to snippets of the relevant text (with embedded links).

Interestingly, the proposal also exempts the use of individual words and very short extracts from the scope of protection. Although the agreed text has been improved over earlier drafts in this respect, a similar system was adopted in Germany in 2013, which led to considerable confusion about the material scope of the law.

How long do the new rights last?

The exclusive rights for publishers expire two years after publication, counting from the first of January following publication date. This limitation was inserted because of concerns expressed regarding the freedom of information.

Welcome changes

The adopted text of the Directive takes into account many points of criticism on the Commission’s proposal originally published in late 2016. In particular:

• Article 15 is now only aimed at online use and no longer affects the offline sector.
• An exception has been inserted for the use of individual words or very short extracts.
• The term of protection has been reduced from 20 to 2 years.
• Blogs will not fall under the protection of press publishers.
• It no longer catches non-profit institutions and private individuals.
• It no longer applies to works published before its entry into force.

Comparison: Germany, France, UK

While Article 15 will no doubt be celebrated by big publishing companies as a breakthrough, for the EU as a whole, the new exclusive right is no stranger to the German Copyright Act. As noted above, in 2013, a similar ancillary copyright for press publishers was implemented. That prohibited operators of search engines and news operators from making press articles or extracts of them publicly available without prior licensing. However, in Germany the new law did not lead to the intended benefits for press publishers. As the law exempts “single words and smallest text excerpts” from the general prohibition, there is legal uncertainty with respect to the interpretation of the scope of this regulation, which has resulted in numerous court actions.

Nevertheless, the German law served as a model for Article 15 in many respects: the exception for short text excerpts, fair payment for authors and the clarification that rights of the authors remain untouched by the rights of the press publishers and may not be used against them. However, Article 15 differs significantly in one important aspect: under German law, the ancillary copyright exists only for a period of one year from publication, not two years.

In France, there is no corresponding ancillary copyright law. For this reason, France – as is well known – initially also opted against the introduction of such a right at European level.

The UK currently has no such ancillary copyright for press publishers and as things stand today there must be doubt as to whether there will be in the future as a result of the Directive. That’s because the UK’s obligation to implement the Directive will depend on whether the UK exits the EU before or after it comes into force.

Conclusions

After years of heated debate the new right for publishers can surely be regarded as a milestone in the endeavor to create a fair system that seeks to compensate publishers for the digital uses of their works.

However, while big publishers will mainly welcome this new development it remains to be seen how beneficial smaller press publishers will find Article 15, given their (relatively) weaker commercial negotiation position.

Questions also remain as to the scope of the carve out for use of individual words or very short extracts of a press publication, and lengthy judicial proceedings on this issue can be predicted with some confidence. It also remains to be seen how search engines and other service providers will react and whether, in particular, they will withdraw their news services from the European market, as occurred in Spain when it introduced a similar law, or whether the prediction of Günther Oettinger, who presented the first proposal shortly before leaving his post as European Commissioner for Digital Economy and Society, will come true that Europe as a whole is too important in this context.

Article 15: Protection of press publications concerning online uses

(1) Member States shall provide publishers of press publications established in a Member State with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the online use of their press publications by information society service providers.

The rights provided for in the first subparagraph shall not apply to private or non-commercial uses of press publications by individual users.

The protection granted under the first subparagraph shall not apply to acts of hyperlinking.

The rights provided for in the first subparagraph shall not apply in respect of the use of individual words or very short extracts of a press publication.

(2) The rights provided for in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject matter incorporated in a press publication. The rights provided for in paragraph 1 shall not be invoked against those authors and other rightholders and, in particular, shall not deprive them of their right to exploit their works and other subject matter independently from the press publication in which they are incorporated.

When a work or other subject matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights provided for in paragraph 1 shall not be invoked to prohibit the use by other authorised users. The rights provided for in paragraph 1 shall not be invoked to prohibit the use of works or other subject matter for which protection has expired.

(3) Articles 5 to 8 of Directive 2001/29/EC, Directive 2012/28/EU and Directive (EU) 2017/1564 of the European Parliament of the Council1 shall apply mutatis mutandis in respect of the rights provided for in paragraph 1 of this Article.

(4) The rights provided for in paragraph 1 shall expire two years after the press publication is published. That term shall be calculated from 1 January of the year following the date on which that press publication is published.

Paragraph 1 shall not apply to press publications first published before [date of entry into force of this Directive].

(5) Member States shall provide that authors of works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers.

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