As part of its Digital Single Market strategy, the European Union adopted Copyright Directive No. 96/9/EC on 17 April 2019 (“Directive”). Amongst a series of measures introduced by the Directive, Article 15 creates a neighbouring right for press publishers. The stated aims, among others, are to help press publishers recoup their investment when their content is made available via news aggregators or media monitoring services and to provide a harmonised legal protection for press publications in respect of online uses by information society providers.
Article 15 provides that Member States shall give publishers of press publications the exclusive right to authorise information society service providers to reproduce, communicate to the public or make available their work online to the public.
The Directive had been highly anticipated by the French lawmakers who implemented Article 15 three months after the adoption of the Directive by passing the 24 July 2019 Act No. 2019-775 Creating a Neighbouring Right for the Benefit of Press Agencies and Press Editors (“Implementation Act” or “Act”). As the name of the Act indicates, the new neighbouring right extends to press agencies. In addition, the Act expressly gives publishers, agencies and authors, such as journalists, the right to be remunerated by publishers.
These rights come with the following limits and exceptions:
The rights only apply to publishers and agencies established within the European Union.
These new neighbouring rights are effective for two years from 1 January of the calendar year following the first publication of the press content. Beyond 2 years, it can be argued that the newsworthiness of the shared content is questionable.
Hyperlinks, isolated words and very short extracts
Both the Directive and the Implementation Act have provided for an exception allowing the use of hyperlinks and of isolated words or very short extracts of a press publication.
- Hyperlinks - The rights do not apply to hyperlinks. This means that a news aggregator or a media monitoring service provider may make available to the public a hyperlink to a publisher’s content without seeking authorisation and without having to remunerate the publisher or the agency.
- Isolated words and very short extracts - The Implementation Act offers no quantitative indication which could help identify what is meant by “very short extracts”. However, it specifies that the exception applies so long as it does not affect the effectiveness of the neighbouring rights.
Although the term “effectiveness” is not defined, the Act provides a test by adding that “the effectiveness is particularly affected when the use of very short extracts is substituted for the press publication itself or exempts the reader from referring to it”. This example is in line with the declarations made during the parliamentary discussions which were held prior to the adoption of the Directive and which gave rise to little debate. For example, it was declared that when someone “only reads the snippet without clicking on the link to view the whole article, the publisher loses a significant part of its online readership. Producing the information has a cost; however the use of very short extracts replacing the press publication itself or discouraging the reader from reading it could affect the effectiveness of the neighbouring right” (Sylvie Tolmont, Recueil des travaux préparatoires). On the basis of this test only, it appears that the clickbait or cliffhanger style in snippets would more likely benefit from the exception.
Fair dealing / fair use
The standard fair dealing exceptions apply to the new neighbouring rights. The French Intellectual Property Code therefore provides that neighbouring rights holders may not prohibit, amongst others:
- analyses and short quotes justified by the critical, polemical, educational, scientific or informative character of the work in which they are incorporated provided that the source of the quoted or analysed material is credited;
- press reviews;
- extracts from items created for educational purposes, for the sole purpose of illustration in the context of teaching and research.
- Non-mandatory remuneration
French courts consider that unless it is somehow specified that a law is mandatory, it is not mandatory. The Implementation Act and the Intellectual Property Code do not provide that it is mandatory to pay a financial compensation to press publishers and agencies. With no provisions to the contrary, it can be concluded that press publishers and agencies can waive their remuneration right in a contract entered into with the online news aggregator or the media monitoring service provider.
Undetermined remuneration rates at industry-level
The Implementation Act provides that the compensation must be determined “taking into account criteria such as the human, material and financial investments made by the publishers and the press agencies, the contribution of the press publications to the political and general information and the importance of the use of press publications by online public communication services”. It is however widely accepted that case-by-case rate calculation is unrealistic. The discussions held during the bill preparation unequivocally stressed the need for industry-wide fixed rate negotiation by collecting societies representing publishers and agencies.
The Implementation Act also imposes a collective agreement between the authors (mainly journalists and photographers) and the neighbouring rights holders in order to fix and organise the authors’ remuneration by the rights holders. The Act provides that if no agreement is found within six months of its publication, a Commission (the composition and internal organisation of which must be described by a Government regulation) would be created for this purpose. The six-month deadline has expired and the process is still pending.
So far, no common ground has been found between; the Government, press publishers and agencies on the one hand, and news aggregators and online communication service providers (who consider they have the option to stop using snippets and only use hyperlinks), on the other. As far as French authorities are concerned, the economic interest and the survival of the press publishers and agencies are at stake. If discussions remain inconclusive, it cannot be ruled out that further legislative or executive texts will be adopted to put an end to the deadlock.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.