infoJustice

Christophe Geiger, Oleksandr Bulayenko and Giancarlo Frosio
Centre for International Intellectual Property Studies, Link

Summary: Among its key features, the European Commission’s planned copyright reform proposes to introduce in EU copyright law neighbouring rights for press publishers.[1] This proposal is (i) contrary to the objective of creating a Single Digital Market, (ii) detrimental for authors’ interests, and (iii) does not solve any systemic issues of the EU copyright system for the reasons stated below.

• The Directive Proposal—and the documents accompanying it—fail to explain how an additional layer of 28 national rights might promote the Digital Single Market. Rather, the proposal poses further challenges related to the territoriality of rights and their fragmentation. In addition, as there is already no uniform approach to exceptions or limitations to 28 national authors’ rights, 28 additional national rights for publishers will suffer the same uncertainty, making the Digital Single Market harder to reach.

• Granting rights to ever more actors will reduce the economic value of each right covering essentially the same economic use. While the Impact Assessment accompanying the Directive Proposal concludes that the “introduction of a related right covering digital uses of press publications is not expected to generate higher licence fees for online service providers”, it fails to assess the impact of the Directive Proposal on authors. As the “pie” does not get any bigger, the authors’ share will inevitably decrease. Ultimately, this might undermine the overall functioning of the copyright system, especially because it should primarily secure fair remunerations to creators (rather than only compensate the investment of rightholders), while at the same time providing access to users.

• In this regard, the Impact Assessment fails to demonstrate a causal link between publishers’ revenues and investments and granting them neighbouring rights to press publications—and/or promoting mechanisms facilitating initial ownership of authors’ rights by publishers. In contrast, recent empirical evidence from national implementation of publishers’ neighbouring rights confirmed a negative impact on small publishers, while news aggregators might have a positive effect on online news sites. This might have negative repercussions on plurality of sources, users’ access to information—and therefore on democratization. Also, increasing barriers to innovation and desincentivizing new business models might be an additional effect of the reform.

• The Directive Proposal does not limit the subject matter to publications presently protected by authors’ rights. It goes far beyond, restricting, for example, uses of works in the public domain. Lifting materials out of the public domain has unwanted consequences, impinging greatly on freedom of expression and democratization, while favouring centralization of information.

• Any economic input into the value chain of creative activities does not merit the grant of a property right. Also, a grant of a neighbouring right to one economic actor cannot be a reason for granting such right to another one. Moreover, the Directive Proposal does not follow any meaningful logic of investment reward, since it proposes to grant rights to any publication, even those that do not involve any substantive investment. For example, publication of any trivial information on a “news website” will be sufficient for the grant of neighbouring rights;

• Finally, in any event, if this proposal is ever going to be approved, the scope of protection—extending also to non-commercial uses—and the term of protection are overbroad.

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1. The scope of the proposed reform is of course much larger and includes many other important topics, such as (i) certain uses of protected content by online services, (ii) exceptions and limitations for text and data mining, (iii) teaching activities and preservation of cultural heritage, (iv) use of out-of-commerce works, (v) access to and availability of audiovisual works on video-on-demand platforms, and (v) fair remuneration in contracts of authors and performers. This other topics will be reviewed in a separate position paper. Thus, this opinion shall not evaluate the entire proposed reform but shall rather draw attention only on one of its main (negative) aspects: the introduction of neighbouring rights for publishers.