DSM Directive Series #2: Is the press publishers' right waivable?

The IPKat after the introduction 
of the press publishers' right: 
dream and ...

As reported by The IPKat, last week the European Parliament approved the latest version of the Directive on copyright in the Digital Single Market (DSM Directive) which, once approved one last time by EU Member States and published on the Official Journal, will officially come into effect and will then require transposition at the national level.

Still last week, The IPKat launched a 'DSM Directive Series' of posts to comment on certain key aspects of this forthcoming piece of EU legislation. The first post of the series, "Do Member States have to transpose the value gap provision and does the YouTube referral matter?" is available here.

Today, I shall be focusing on a different provision, that is what is now Article 15 of the DSM Directive (formerly, Article 11) and the new press publishers' right envisaged therein.

The wording of this new related right is quite interesting for a number of reasons, including the fact that:

1. It will be enjoyed by press publishers established in an EU Member State: this means that press publishers established outside the EU would not be eligible for protection under Article 15. The UK withdrawal from the EU would likely mean that - by default - UK-based publishers would not be eligible for Article 15 protection, in a way similar to other situations that the EU Commission itself highlighted in a note sent to stakeholders last year [Katpost here], and that the UK IPO reiterated [Katpost here].
2. It will be enforceable against information society service providers in relation to online uses, not individual users in relation to private or non-commercial uses of press publications.
3. It will not encompass linking [but, of course, linking remains an activity that might fall within the scope of copyright protection - so it would be incorrect to think that linking to press content would be always allowed: see here].
4. It will not encompass use of individual words or very short extracts [again, copyright might be potentially relevant in relation to 'very short extracts', insofar as those extracts are sufficiently original as per Infopaq].
5. The right will last for 2 years (to be calculated from the date of publication) and will not have retroactive effect.
6. Authors of works incorporated in a press publication shall be entitled to an 'appropriate share' of the revenues as deriving from licensing online uses of press publications.

However, there is something that is potentially more interesting than the above and is something that the directive fails to tackle.

It is the issue of waivability of the right, ie one of the key issues arisen in respect of national initiatives in, respectively, Germany (sections 87f, 87g and 87h of the German Copyright Act) and Spain (Article 32 of the Spanish Intellectual Property Law).

German and Spanish initiatives

As readers know, the new EU press publishers' right somewhat builds upon earlier national experiences. In the Impact Assessment (IA) accompanying the proposal for a DSM Directive, the EU Commission indeed recalled that a number of Member States had already intervened to remedy or reduce – whether by means of ad hoc initiatives or as part of broader arrangements – the negative impact of reduced revenue in the press publishing sector. Such copyright-related initiatives have included:

• the introduction of neighbouring rights (as it happened in Germany); 
• provisions on collective works; 
• provisions on presumption of transfer; 
• copyright protection of the typographical arrangement of published editions; and
• mandatory fair compensation requirements (as is the case in Spain). 

Focusing specifically on the German and Spanish experiences, the IA itself acknowledged that these had been somewhat 'ineffective', and linked such ineffectiveness to 'the lack of scale of national solutions.' (p 161)

One of the actual reasons why the German initiative [currently under scrutiny of the Court of Justice of the European Union, due to lack of notification to the EU Commission; see here for the Opinion of Advocate General Hogan] has not been too successful is also due to the fact that a substantial number of German press publishers have opted to waive their right in order to be indexed by, eg, news aggregation services. In this sense, on the very day that the German right became enforceable, Google News became opt-in (rather than opt-out) in Germany: see IPKat post here.

Things are different in Spain, as the entitlement to compensation does not stem from a new right, but rather from the reformed language of quotation exception within Article 32 of the Ley de Propiedad Intelectual. Despite relying on a mechanism different from the one envisaged under German law, Article 32 as reformed has introduced a right to ‘equitable remuneration’ that, in its substance, is not dissimilar from the German press publishers’ right. There is however a significant difference, ie that – unlike the German right – the Spanish ‘right’ cannot be waived. The result of this is that, for instance, Google News is currently unavailable in Spain [Katpost here].

... reality

The new EU right

Considering its national predecessors, it is quite astonishing intriguing that the DSM Directive does not tackle the issue of waivability of the right in Article 15.

This silence raises a number of issues, two of which in particular stand out. 

The first is whether beneficiaries of the right will be able to waive it, lacking a specific prohibition to the contrary. The answer appears to be in the affirmative.

The second, and possibly currently more pressing, is what effect all this will have on transposition debates. It appears likely that different Member States might opt for different ways to implement the directive into their own laws, and that lobbying at the national level might lead to diverging languages of the new press publishers' right. The result might be that the right ends up being waivable in certain countries but not others (eg because national law explicitly excluding waivability). 

The CJEU has explicitly excluded the possibility for EU Member States to alter the scope of harmonized rights: it did so, eg, in relation to Article 3 of the InfoSoc Directive, in both Svensson and C More. However, while this is the truth and the CJEU was correct in its assessment, it is not excluded that in fact certain Member States would include language as regards the waivability of the right or - more likely - lack thereof. 

Litigation will then likely ensue in a few years' time, the CJEU might be given the possibility to assess the appropriateness of resulting national transpositions, deem them compatible or incompatible with EU law, concerned Member States will need to change their own laws, etc. 

In all this, unfortunately, one thing seems at least clear: The IPKat will not start making any money. Blogs are in fact expressly ineligible for Article 15 protection (see Recital 56). This means that, if nothing else, it will not need to worry about de-indexing from search engines or news aggregation services ...

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• DSM Directive Series #1: Do Member States have to transpose the value gap provision and does the YouTube referral matter?