|... or, in alternative, |
to introduce an EU-wide neighbouring right
- the compatibility with EU law of national legislative initiatives (Germany and Spain) that have resulted in the creation of sui generis rights for press publishers, and
- whether a neighbouring right for publishers may be adopted at the EU level and, if so, what changes of the copyright acquis are required to this end.
The first part will focus on the compatibility of national rights for press publishers with the current acquis in the area of copyright – notably the InfoSoc Directive and the Rental and Lending Rights Directive. By considering relevant case law of the Court of Justice of the European Union (CJEU), it will recall that the InfoSoc Directive intended to achieve a broad harmonisation of national copyright laws.
In Svensson the CJEU clarified that, by adopting the InfoSoc Directive, the EU legislature deprived Member States of the freedom to broaden the scope of relevant economic rights. In Reprobel the CJEU held that the term ‘rightholders’ in the InfoSoc Directive does not include ‘publishers’. From a combined reading of Svensson and Reprobel, it follows that publishers cannot be granted any rights under the InfoSoc Directive. This is not only true in the copyright area, but also in relation to neighbouring rights. While C More suggests that Member States can broaden the scope of the neighbouring rights harmonised in the Rental and Lending Rights Directive (including in relation to communication to the public), this decision does not also suggest that Member States are free to add new categories of rightholders in addition to those indicated in that directive.