As part of its Digital Single Market strategy, the European Commission recently published a proposal for a new Directive on copyright (Directive). One of the new rights contained within the proposal is the press publication right. This provides online press publishers with a right relating to the reproduction and making available of their original digital content by online services.
Under the existing copyright framework, online news publishers are not recognised as rights holders. As a result, they are often unable to recoup the investment they make into original content in the same way as other intermediaries such as film and record producers, or broadcasters. The press publication right intends to tackle this issue by giving online news publishers greater legal certainty and additional bargaining power in their contractual relations with online services using and enabling access to their content. Under the proposal, online services will be required to obtain a licence to use press publishers' original content. This should enable press publishers to financially benefit from any secondary exploitation of their original content.
The right is intended to have the same scope as the rights of reproduction and making available to the public currently provided for in the Copyright Directive. It's worth noting that this means the right will not extend to hyperlinking as this has been ruled not to constitute a communication to the public. Press publishers will additionally be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in the Copyright Directive. These include the exception on quotations for the purposes of criticism and review, for example, which will still amount to permissible acts by online services under the Directive. The publications captured by this right will include daily newspapers, weekly/monthly magazines and news websites. Periodical publications which are published for scientific or academic purposes will not be covered by the right. The right will last for 20 years from the end of the year of publication.
It is not yet clear whether this new right will benefit the press publishers as much as the wording of the proposal appears to promise. In theory, press publishers should now be able to secure payment of licence fees from search engines and news aggregators as well as other intermediaries which choose to reproduce or make available their original content. However, it remains to be seen how effective a negotiating tool this will be. Firstly the right is ambiguous in what it relates to. Can it relate to a single article or must it be applied to an entire aggregation of online articles (the latter being far less practical for the publishers than the former)? This is not currently made clear by the wording of the proposal. Secondly, online services may simply refuse to reproduce the press publishers' content unless the publishers agree not to charge for the reproduction (or to only charge a negligible fee). In Germany, for example, the introduction of a similar law led some aggregators to stop listing German publications altogether. This not only had a negative impact on the German publications' exposure but also failed to provide them with any of the financial benefits envisaged by the German law. Read our article on the the press publication right from the German perspective.
Similarly some search engines/news aggregators such as Google have hinted that paying for news snippets may not be a financially viable option for them as they do not make any profit from their news services. The introduction of the new right may even lead such news aggregators/search engines to close down their news services altogether as Google chose to do in Spain in response to the introduction of a similar law.
Some critics believe the new right may not ultimately change very much at all. As a matter of practice, press publishers will already own the copyright in articles produced by their employees so the press publication right will not provide any real added benefit to them (although this does not reflect the position relating to freelance content creators).
In general the press publication right has so far received a lukewarm reception from critics. Time will tell whether the proposal, if adopted, will have any significant impact on the digital use of press publications.