The proposed press publishers' right: is it really worth all this noise?

Again on the proposal
(for a directive on copyright
in the Digital Single Market)

As reported and covered in a number of previous posts [here, here, here], in the context of its Digital Single Market Strategy (DSMS) on 14 September last the EU Commission unveiled a new copyright package, consisting of a number of proposals aimed at improving the existing EU copyright framework.

Among the contents of the package, there is the already famous proposal for a directive on copyright in the Digital Single Market (DSM Directive) [here]. 

Among other things, the DSM Directive intends to introduce into the EU copyright framework a new related right in press publications.

Article 11 of the directive states:

"1. Member States shall provide publishers of press publications [what is to be intended by 'press publications' is clarified at Recital 33 of the directive] with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications. 

2. The rights referred to 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. Such rights may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated. 

3. Articles 5 to 8 of Directive 2001/29/EC [the InfoSoc Directive] and Directive 2012/28/EU [the Orphan Works Directive] shall apply mutatis mutandis in respect of the rights referred to in paragraph 1. 

4. The rights referred to in paragraph 1 shall expire 20 years after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date of publication."

However, the drafting of this provision and related recitals (31 to 36) raises a number of technical questions, as well as a practical, fundamental, one.

When less may be actually more

The technical questions

A first question may be why Article 11 refers to Article 3(2) of the InfoSoc Directive [making available right] instead of Article 3(1) of the same directive [right of communication to the public], also considering that the last sentence in Recital 33 refers to the right of communication to the public. 

The question is not just pedantic academic, because the rights of communication to the public and making available to the public are not the same thing. The Court of Justice of the European Union (CJEU) has made this clear, more recently in its C More judgment [here].

A second point is that it is not entirely clear why Recital 33 contains a reference to hyperlinks, by saying that those which do not amount to acts of communication to the public are outside the scope of the new right. 

First, the new related right is not about the right of communication to the public, but rather reproduction and making available to the public. 

Secondly, if the new related right does not go beyond copyright [as Article 11(2) stresses], surely saying that "protection does not extend to acts of hyperlinking which do not constitute communication to the public" is not really necessary. 

Finally, hyperlinks are not everything the right is about: Article 11 refers to the "digital use" of press publications. A "digital use" may range from the scanning of press publications to the display of relevant excerpts and everything in between.

Charlie is scared ...
but is there anything to really fear?

A practical question

Last week I had the chance to speak to a number of people, both stakeholders and legal practitioners, over meals and at events. While coming from different positions in relation to the current EU copyright debate, they all seemed to have the same question:

Will the press publishers' right have any practical relevance?

Despite some earlier academic concerns, the answer may be 'NO' in the majority of cases. The reason for this is twofold.

First, the new press publishers' right is certainly not broader than copyright (and is certainly shorter). Article 11 is clear in saying that the rights of reproduction and making available, along with related exceptions and limitations, are to be intended in the same sense as the same rights and exceptions under the copyright framework. So, to one who already owns the copyright to a press publication, will ownership of also the press publishers’ right mean anything (useful)?

Secondly - as a matter of practice and possibly with the exclusion of certain free-lance journalists who manage to retain ownership of copyright in their pieces - press publishers already own the copyright to the press publications authored by their journalists-employees. And copyright already provides a fairly powerful tool. Just to provide an example, yesterday I re-read the CJEU decision in Infopaq in preparation for the second IP class with my Southampton Law School undergraduate students.

Readers will promptly remember that that case - a reference for a preliminary ruling from Denmark - concerned indeed press publications scanned without the prior consent or relevant rightholders, ie press publishers. 

The CJEU ended up saying that merely "storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29/EC ..., if the elements thus reproduced are the expression of the intellectual creation of their author".

Would have things been any better if - besides copyright - press publishers could have also invoked the ad hoc press publishers' right in an Infopaq-like scenario?

Conclusion

All in all, it is unclear whether and to what extent the press publishers' right will change things in relation to digital uses of press publications.

Also the reference to the CJEU decision in Reprobel [here] in Recital 36 seems a bit out of context [and possibly only makes sense if, instead of Article 11, it is read as referring to Article 12], since that decision nothing had to do with digital uses of press publications. Reprobel was completely a non-digital case concerning private copying levies in printers.

In the majority of cases the addition of the press publishers’ right extra-layer of protection is unlikely to make a difference. But am I missing something here? As always, readers' feedback is very welcome!