The evolution of a new neighbouring right for press publishers is currently the subject of wide and heated debate. The European Commission proposed such a right in Article 11 of its proposal for a new directive on copyright in the Digital Single Market (Draft Copyright DirectiveCOM(2016) 593 final). The European Parliament’s first approach to this proposed right has been rather skeptical. The Legal Affairs (JURI) committee’s initial report merely proposed a statutory presumption of representation of authors of literary works contained in press publications and the publishers’ legal capacity to sue in their own name when defending the rights of such authors. JURI’s position however changed somewhat when Axel Voss took over the role as rapporteur from Therese Comodini Cachia.

Most recently, we have now seen a leaked draft of a paper analysing the effect such a neighbouring right is likely to have if enacted. The Joint Research Centre (JRC) of the European Commission is authoring a paper headed “Online News Aggregation and Neighbouring Rights for News Publishers”. Although currently only a draft the message is however quite clear. JRC reaches the conclusion that “law can create a right but market forces have valued this right at a zero price”.

Background

Whether press publishers require their own rights in articles they publish, separate from the copyright of authors, is a question that has been in debate for quite some time. Germany as well as Spain have already passed legislation introducing such a neighbouring right for press publishers on a national level. Even though the provisions differ in the detail, the underlying thought is the same: press publishers have rights allowing them to participate in secondary use being made of their online publications, e.g. by news aggregators. Whoever goes beyond referencing so-called “snippets” (very short parts of the actual article) must obtain a license and pay a fee.

So far, neither in Germany nor in Spain has the concept worked out in practice. In other words, the press publishers have not been able to negotiate licenses that have generated any significant revenue. News aggregators and search engine providers have refused to pay for the content they are gathering. The core argument is that they are the ones generating traffic on the publisher’s websites and thereby making those sites more attractive for advertisements.

It is noteworthy that under German law, there is also a case pending before the European Court of Justice. A key question is whether the respective domestic provisions lack the necessary notification to the EU. Thus, the dispute is about the formal conformity of the law (see blog post).

The draft paper

The bottom line from the JRC paper is that a neighbouring right for press publishers would not generate sustainable benefits. This conclusion is primarily based on the experiences in Germany and Spain. It is not the mere existence of such a neighbouring right that is to be looked at, but rather its economic value in practice. If that value is close to zero, creating the respective right is questionable.

The authors build on empirical data showing that newspapers – not surprisingly – benefit from constant online news aggregation through platforms. Undeniably, such aggregation leads to increased user traffic on newspaper websites and consequentially to more revenue from advertising. According to the draft paper, aggregators who themselves place advertisements with the aggregated news share between 70 and 100% of the generated revenue with the news publishers.

The paper goes on to recommend more cooperation as an alternative to introducing new law. One specific approach is the role of a new intermediary. One example might be a private data provider collecting and sharing data on users’ reading behavior generated by the news aggregators with the press publishers. News publishers could then use the data in order to develop new business models and adjust the quality of news output and subject matter to the readers’ preferences. According to the authors, this may be a “winning strategy for all stakeholders”.

Comment

Whilst giving an interesting insight, the draft paper is apparently not new and neither are the arguments. It seems that the findings were already available in 2016 (see this internal communication). The fact that the draft paper was leaked only recently is due to a series of information requests pursuant to the Regulation (EC) regarding public access to European Parliament, Council and Commission documents (No 1049/2001).

Nevertheless, the paper is timely because the practical value of a neighbouring right for press publishers is being called into question at a stage when the draft Copyright Directive will be considered by the full JURI committee in the next few months. The creation of such right brings with it further difficulties such as a clear-cut definition of a press publication. Also, it is the copyright in the text or image, i.e. in the content and not its published layout, that is effectively exploited. This being said, publishers of course have an important and undeniable role in the publication process which entitles them to monetary participation if their publications are exploited further down the line. However, rather than following the path of a neighbouring right any further, it may be more practical to work on a genuine right for press publishers similar to Article 12 of the Draft Copyright Directive. According to the proposed provision, publishers shall be able to claim a share of the compensation for the uses of the work at issue under a copyright exception. After all, press publishers primarily aim for such monetary participation.