From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 24 March 2016

EU Commission launches public consultation on neighbouring rights and freedom of panorama

As a further follow-up to its Digital Single Market Strategy released last May [here] and - more specifically - the Communication issued last December in tandem with a proposal for a regulation on cross-border content portability [here], yesterday the EU launched yet another public consultation.

After the one on the review of the Satellite and Cable Directive [here], after the one on online intermediaries and platforms, after the one on the Enforcement Directive [open until 15 April 2016], now it is the turn of neighbouring (ancillary) rights and freedom panorama.

Readers will remember that in its December Communication, the Commission indeed announced that it would consider initiatives both in the area of neighbouring rights and exceptions and limitations, including freedom of panorama.

Neighbouring rights = press publishers' right

As regards new neighbouring rights, in its Communication the Commission stated that it would consider "whether any action specific to news aggregators is needed, including intervening on rights".

As explained on the relevant Q&A section made available by the Commission, 

"The Commission has no plan to tax hyperlinks. We have no intention to ask people to pay for copyright when they simply share a hyperlink to content protected by copyright. Europeans share and post hyperlinks every day and they should remain free to do so [if by “taxing” the Commission intends “paying a licence fee”, then this statement frankly sounds a bit too bold without any legislative intervention, considering Svensson and its progeny (one of this Kat's favourite topics of all time)]. 
The Commission will look at the activities of different types of intermediaries in relation to copyright-protected content. This is a different issue. 
News aggregators, for example, are not only using hyperlinks but also extracts of articles and may gain revenue doing so. 
Different solutions related to news aggregators, both legislative and market-led, are being tested at national level. We are closely looking into them and are analysing whether they deliver on their objectives."

It would thus appear that - following (in)famous experiences at the national level (read: Germany and Spain) - an EU-wide ancillary right over news content appeared be in sight, even just for consideration [here for a more recent take].

When taking a selfie in Italy,
Bruno is always super-stressed careful
not to include any copyright work
Freedom of panorama

Article 5(3)(h) of the InfoSoc Directive allows Member States to introduce national exceptions/limitations to the rights harmonised by that directive to permit the "use of works, such as works of architecture or sculpture, made to be located permanently in public places". 

This is the so called freedom of panorama, that over the course of the past year has passed from being a perfectly fairly unknown/neglected area of copyright to being a VERY big deal [here; here for a possibly unduly skeptical Kat-take on the issue], up to the point that the European Parliament EVEN voted against any related restriction [here]

In its Communication, the Commission wrote that it would "clarify the current EU exception permitting the use of works that were made to be permanently located in the public space (the ‘panorama exception’), to take into account new dissemination channels."

Yesterday's public consultation

Now everyone can have his/her say on the correct approach to neighbouring rights and freedom of panorama. This is so until 15 June 2016. 

Looking at the relevant questions, it would appear that all main stakeholders - including authors, rightholders, publishers, intermediaries, researchers, users and the general public alike - are part of the consultation horizon. This means that there is something for everybody. 

This Kat suspects that - due to its appealing (also to the general public) focus - this particular public consultation will see the involvement of many interest groups and attract several responses, possibly more [but that does not seem too difficult] than the (mere) 1036 responses received by the public consultation on online intermediaries and platforms.


Anonymous said...

Hi Eleonora,

What are your thoughts on using the reproduction right to justify a fee being paid by news aggregators copying headlines (or even snippets) from published articles? Looking at Infopaq I it's quite obvious a headline by itself can already be considered a work but does placing that "work" on your website (even without a link) constitute a reproduction for which permission is needed, unless one of the exceptions can be applied?

I guess my question is a bit broader too: when exactly can we speak of reproduction and when of communication to the public in terms of online use? I find the line rather thin sometimes.

Eleonora Rosati said...

Hi Anonymous,

Re the thin line: you're absolutely right. In all this, also add rulings like Labianca (in which the CJEU held that mere advertisement for sale on a website would be an act of distribution) that have blurred even more the distinction between communication to the public and distribution.

Re headlines, I agree with you that reproducing them may fall within scope of copyright post-Infopaq, as in the EU we don't have any guidance like they have, eg, in the US (where they have something like this: This said, perhaps something like the quotation exception could help, but, again, this would depend on (1) whether Member State in question has implemented it; and (2) how.

Personally I believe that a reform of Article 5 InfoSoc is urgently needed: we need more mandatory exceptions on the model of Article 5(1) ... Yet, the Commission does not seem to have any specific plans to touch it.

Richard Danbury said...

For those interested in the proposal for an ancillary right, there's a conference on the subject in IViR at the University of Amsterdam, on the 23rd April. I hope Eleanora will forgive my plugging it here in the comments section, but she was kind enough to list it in IPKat's forthcoming events section.

A link to the registration page is here:


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