The evolution of digital technologies and proliferation of mobile devices have transformed how content is created, distributed and consumed. More and more of us are consuming content and getting our news through a single (probably mobile) source, such as news aggregators or on social media platforms, instead of via traditional means like newspapers or magazines or by browsing different websites. In light of these changing market forces, the European Commission has put forward a "Proposal for a Directive on copyright in the Digital Single Market" that aims to modernise EU copyright laws.
Two aspects of the proposed Directive are the subject of much debate: Article 11 which seeks to extend copyright protection to press publishers for the online uses of their press publications; and Article 13, which seeks to introduce enhanced obligations on "online content sharing service providers" for content uploaded by their users. Article 13 will be discussed in part two of this briefing.
PRESS PUBLISHERS: WHAT IS THE PROBLEM?
According to the recitals of the proposed Directive, "Publishers of press publications are facing problems in licensing the online use of their publications to the providers of [new online] services, making it more diffi cult for them to recoup their investments." Unless paywalls or other technical restrictions are in place, it is common for online services to reuse or host digital content from press publishers in such a way that users do not need to click through to the original source of the news story or article.
WHY DO EXISTING COPYRIGHT LAWS NOT ADEQUATELY PROTECT PRESS PUBLISHERS?
Unlike, for example, broadcasters or music producers who benefi t from a distinct copyright in their broadcasts and music recordings, press publishers do not have an equivalent copyright in the overall press publication that is distinct from the copyright in each of the articles or news pieces that make up the publication. Unless the writer is an employee of the press publisher (which is oft en not the case) then copyright will vest in the individual writers of each article and not the press publisher itself for the overall publication. According to the recitals of the Directive, as a result of this "absence of recognition of publishers of press publications as rightsholders, licensing and enforcement of rights in press publications regarding online uses by information society service providers in the digital environment is often complex and inefficient."
THE PROPOSED SOLUTION
While the scope of Article 11 is still being debated (a consolidated EU Council Presidency compromise proposal was published on 23 March), its intention is to provide press publishers with greater rights to control how information society service providers (ISSPs), such as search engines, news aggregators or social media platforms, reproduce and distribute their press publications online. The press publications to be covered by this right are those whose purpose is to inform the general public and which are periodically or regularly updated, such as daily newspapers, weekly or monthly magazines or general or specialist interest and news websites.
The most recent compromise proposal from the EU Council Presidency gives press publishers the exclusive right to authorise the reproduction and making available to the public of their press publications for online uses by ISSPs. The practical effect of this would be to give press publishers greater rights, and importantly extra leverage, to negotiate licence agreements with ISSPs for the online uses of their press publications. Based on the Council's latest compromise proposal, the right would also apply to extracts of press publications, provided that the extracts are the "expression of the intellectual creation of their authors." The term of the proposed press publishers' right is currently set at 10 years in light of the short life-cycle of most press publications.
Whether an extract from a press publications is "the expression of the intellectual creation" of its author is likely to be a battleground between press publishers and ISSPs, particularly in the context of headlines and the first few sentences of a news story or article. For example, would a clever headline benefit from the right whereas factual news reporting would not? Without clear guidance in this area, these kinds of issues will have to be answered on a case by case basis which may hamper the effectiveness of the right.
While the precise scope of Article 11 is yet to be decided, its intention is clear: it will grant to press publishers greater rights to control how ISSPs reproduce and distribute their press publications online. What is unclear is what impact, if any, this intervention will have on how EU citizens access and consume content online.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.