Abstract
Article 11 (due to the legal cleaning of the text of the Digital Single Market Directive 2019/790/EU, article numbers have changed; consequently, Article 11 of the Proposal is now Article 15, while the similarly contentious provision under Article 13 on the use of protected content by information society service providers has been renumbered as Article 17) of the Proposal for a Directive on copyright in the Digital Single Market constitutes one of the most debated provisions of the legislative corpus that demonstrates the ambitious transition of the European acquis to the digital era. The introduction of an exclusive related right to press publishers for the digital uses of their content formed a casus belli within this long-term and rather adventurous legislative initiative. Eventually, a compromise was reached after two and a half years that the debate was launched and the tough negotiations that intervened; on February 13, 2019, the relevant trilogue negotiations were successfully concluded, reaching an agreement on a compromise text for the Copyright Directive, including the new press publishers right (Rosati 2019. http://ipkitten.blogspot.com/2019/02/breaking-agreement-on-dsm-directive.html). This chapter explores all the key issues of the new right on press publications, demonstrating the objectives sought through its establishment, while providing an analysis of the legal and economic background from both sides of this persisting controversy. At first, the relevant initiatives undertaken at national level, and foremost, the examples of Germany and Spain are analyzed to demonstrate the inspiration for the introduction of a harmonized right for press publishers. Thereafter, the main arguments against this legislative step are investigated, demonstrating the substantive pillars and the reactions that the European Commission experienced in this field. It should be noted that this opposition had also crept into the European institutions themselves since the European Parliament had first rejected the Committee Draft of the Proposal in what has been described as a “surprising turn of events” (Rauer et al., European Parliament votes to reject controversial Copyright Directive proposal, 2018a). Lastly, the final text of the proposed Article 11 (renumbered Article 15) as adopted by the European Parliament is presented, further including the rationale behind and the objectives pursued under its establishment. On the eve of a radical overhaul of the EU copyright system, it is important that we realize the substance of this new right and the “tangible benefits” (European Commission, Digital Single Market: EU negotiators reach a breakthrough to modernise copyright rules (Press Release). http://europa.eu/rapid/press-release_IP-19-528_en.htm) aiming at yielding to European press publishers and journalists for the massive online re-use of their content. After all, it consists one of the cornerstones of this crucial reform that has been described as making the future of Europe possible…
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- 1.
A Digital Single Market Strategy for Europe—COM (2015) 192 final.
- 2.
Including a tailor-made regulatory environment for online platforms and internet intermediary service providers that would additionally serve the purpose of combating illegal material on the internet. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A digital single market strategy for Europe, COM (2015) 192 final.
- 3.
Recalling the limited level of harmonization previously achieved at EU level in the field of exceptions and limitations, mostly because of their national character and optional implementation, while addressing their contributive role towards the achievement of public policy objectives, the European Commission repeatedly stated its aim of ensuring the legal certainty in the area. In this regard, the objectives pursued under this copyright reform concerned, inter alia, the legality of certain types of uses in the realm of scientific research, as actualized through the introduction of the text and data mining exception, education activities, as well as the preservation of cultural heritage.
- 4.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Towards a modern, more European copyright framework, COM (2015) 626 final.
- 5.
- 6.
Commission Staff Working Document. Impact Assessment on the modernisation of EU copyright rules. The related documents, as well as the executive summary, are available at: https://ec.europa.eu/digital-single-market/en/news/impact-assessment-modernisation-eu-copyright-rules.
- 7.
Ibid.
- 8.
Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market, COM (2016) 593 final.
- 9.
Supra n. 4.
- 10.
As well as former Article 13 (now Article 17), concerning the use of copyright protected content by online content service providers. The compromise text that was respectively achieved provides that the provision of access to copyright protected content uploaded by the users of online content sharing service providers to the public shall be qualified as a restricted act of communication or making available to the public, generating, as such, the obligation to obtain a prior authorization by the rightholders concerned. In addition, the liability of such service providers is established in accordance with the prerequisites set out therein.
- 11.
- 12.
- 13.
European Commission—Statement of 26 March 2019. Copyright reform: the Commission welcomes European Parliament’s vote in favour of modernised rules fit for digital age. http://europa.eu/rapid/press-release_STATEMENT-19-1839_en.htm.
- 14.
Ibid.
- 15.
Rauer et al. (2018a).
- 16.
European Commission, Digital Single Market: EU negotiators reach a breakthrough to modernise copyright rules (Press Release). http://europa.eu/rapid/press-release_IP-19-528_en.htm.
- 17.
A perception deriving from the absence of a regulatory system under which the conclusion of agreements concerning the remuneration due for the use, storing, and provision of access to user-uploaded content would be obligatory.
- 18.
Explanatory Memorandum of the Proposal, para. 1.
- 19.
Recital 31 of the Proposal.
- 20.
Ibid.
- 21.
Legal Affairs. Legal analysis with focus on Article 11 of the proposed Directive on Copyright in the Digital Market. http://www.europarl.europa.eu/RegData/etudes/BRIE/2017/596834/IPOL_BRI(2017)596834_EN.pdf.
- 22.
As the most basic business model in the internet under which attractive content (such as a movie, a photo, music, or text) is (usually) provided for free for the attained consumers’ attention to be actually sold to advertising companies. Hoppner et al. (2017).
- 23.
Principally referring to excerpts from newspapers articles.
- 24.
These being Belgium, Finland, France, Germany, Italy, Poland, Spain, and United Kingdom. See more at Annex 13A included in the Commission Staff Working Document—Impact Assessment on the modernisation of EU copyright rules—Part 3, p. 175.
- 25.
Ibid.
- 26.
Matulionyte (2018).
- 27.
Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273), as last amended by Article 1 of the Act of 1 September 2017 (Federal Law Gazette I p. 3346) (Urheberrechtsgesetz, UrhG), §§87f-h.
- 28.
Being further defined as an “algorithm generated extract of a press publication that information society providers use to provide services to their customers”. However, it was found that giving the consumer a ‘snapshot’ of the main story provided in the press publication, the access to the main site of the news brands was actually discouraged. Unattributed. The publishers’ right explained—part 1. http://www.newsmediaeurope.eu/news/the-publishers-right-explained-part-1/.
- 29.
Known as the “Leistungsschutzrecht für Presseverlage” (LSR).
- 30.
On the contrary, the Spanish legislator followed a differentiated approach, thus providing for a “compulsory, fixed compensation” for all uses undertaken by news services in the digital environment, further excluding search engine services. The Ancillary Copyright for Press Publishers in Germany. Background information and answers to key questions. LSR Aktuell. http://www.lsr-aktuell.de/sites/default/files/20170202_vg_media_lsra_broschuere_en.pdf.
- 31.
Ibid.
- 32.
Talke (2017).
- 33.
Kreutzer (2011). Describing the economic rationale behind the forthcoming (at that time) measure under German law, the resemblance with the framework within which the relevant discussion and the introduction of the respective provision at EU level has fallen, is more than close.
- 34.
Since the introduction of the ancillary copyright and the consequent financial reward provided for press publishers was considered as an important revenue source for the industry both on a middle and long-term basis. Pfanner (2012).
- 35.
Supra n. 37.
- 36.
Read more about the substance, evolution, and effects of the German ancillary right for publishers at: https://resources.law.cam.ac.uk/cipil/documents/potential_legal_responses_complete_transcript.pdf.
- 37.
Rosati (2013).
- 38.
Schlosberg (2017).
- 39.
Press Release (2014) Complaint by VG Media not sufficient to institute formal abuse of dominance proceedings against Google. https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2014/22_08_2014_VG_Media.html.
- 40.
Unattributed (2015) Ancillary Copyright for Publishers: Taking Stock in Germany. Bitcom. http://www.mittelstand-tour.de/bitkom/org/noindex/Publikationen/2016/Leitfaden/Leistungsschutzrecht/2/160406-Leistungsschutzrecht-EN.pdf.
- 41.
(2014) Pressemitteilung: Google lehnt ‘Waffenruhe’ ab -Presseverlage beugen sich Druck Googles und lassen VG Media Gratiseinwilligung für Rechtenutzung erteilen. https://www.vg-media.de/images/stories/pdfs/presse/2014/141022_pm_vgmedia_gratiseinwilligung-google.pdf (in German).
- 42.
Essers (2014).
- 43.
- 44.
CJEU, VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH v Google Inc, Case C-299/17. See more at Rosati (2017a).
- 45.
Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ L 204/37.
- 46.
Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241/1.
- 47.
Rauer (2017).
- 48.
- 49.
More precisely, the Advocate General Gerard Hogan considered that the German provisions “cannot be regarded as simply the equivalent of a condition governing the exercise of a business activity such as a prior authorisation requirement. Their effect in practice is to make the provision of the service subject to either a form of a prohibitory order or a monetary claim at the instance of the publisher of newspapers or magazines”. Court of Justice of European Union. Press Release No 197/18. https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180197en.pdf.
- 50.
Law No. 21/2014 of November 4, 2014, amending the Consolidated Text of the Law on Intellectual Property, approved by Royal Legislative Decree No. 1/1996 of April 12, 1996, and Law No. 1/2000 of January 7, 2000, on Civil Procedure, which entered into force in 2015. However, it was only recently that CEDRO (i.e., the Spanish Reproduction Rights Centre representing authors and publishers of books, magazines, journals, newspapers, and sheet music) initiated negotiations for the determination of the relevant fee.
- 51.
Excluding, though, photographic works or ordinary photographs incorporated in such publications for the use of which an authorization is required. On the contrary, documentaries and news recordings fall within the scope of application of this provision.
- 52.
Caldaza and Gil (2018).
- 53.
Consisting the grounds for its characterization as the “Google Tax” right. Hernández (2014).
- 54.
Plantada (2014).
- 55.
In this regard, it should be noted that linking is not qualified as an act of communication to the public under Article 20(2) TRLPI. Nonetheless, according to the national case law, the provision of links to infringing content may, in certain circumstances, amount to a copyright infringement. Furthermore, the “active and non-neutral” provision of links to illegal content with a profit-making intention implies both administrative and criminal sanctions. https://euipo.europa.eu/ohimportal/el/web/observatory/faqs-on-copyright-es.
- 56.
Xalabarder (2014).
- 57.
Rosati (2014).
- 58.
Otherwise, to the “provenance page of the content”. Vidal (2014).
- 59.
Ibid.
- 60.
Explicitly provided under Art. 40bis TRLPI. The so-called “three-step” was introduced into the EU acquis under para. 5 Article 5 of Directive 2001/29/EC which dictated that the exceptions and limitations provided under this provision shall only be applied: (a) in certain special cases that (b) do not conflict with a normal exploitation of the work or other subject-matter and (c) do not unreasonably prejudice the legitimate interests of the rightholder.
- 61.
Sentencia n.172/2012, of 3 April 2012, Supreme Court, Civil Chamber. Xalabarder (2012).
- 62.
Similar to the press-clipping limitation provided under Article 32(1) of the Spanish Intellectual Property Law (TRLPI).
- 63.
Priora (2018).
- 64.
Supra n. 63.
- 65.
Ibid.
- 66.
Bailey (2018).
- 67.
Keller (2015b).
- 68.
Study for the JURI Committee (2017) Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive, p. 15. http://www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU(2017)596810_EN.pdf.
- 69.
Since a relevant discussion was also taking place in Belgium, Italy, and France. See, in particular, European Commission (2016) Remuneration of authors of books and scientific journals, translators, journalists, and visual artists for the use of their works. https://www.ivir.nl/publicaties/download/remuneration_of_authors_final_report.pdf.
- 70.
Recital 33 of the Proposal dictated that “periodical publications published for scientific or academic purposes are expressly exempted (emphasis added) from the protection granted to press publications” similarly to the relevant definition provided under German law. This exception was retained in the text of the Directive adopted with a slight, though, difference in the relevant wording as provided now under Recital 56 (renumbered Recital 33); in particular, Recital 56 currently states that such publications “should not be covered (instead of “are expressly exempted) by the protection granted to press publications under the Directive” (emphasis added). Lastly, it should be noted that the exception concerning press publications serving scientific or academic purposes has been added as such to the definition of press publications provided under Art. 2 para. 4 of the Directive, entailing, in addition, the example of “scientific journals”.
- 71.
Since both the German and Spanish legislative instruments provide that press publishers are awarded with a remuneration right exclusively against commercial search engines services and other commercial content providers. Talke (2017). However, the compromise amendment on Article 11 included an additional—to the initial proposal—rule (para. 1(a)) which similarly provided that the rights conferred upon publishers of press publications “shall not prevent legitimate private and non-commercial use of press publications (conducted) by individual users”. JURI Committee (2018) Proposal for a Directive on copyright in the digital single market. Compromise amendments and alternative compromise amendments (final). http://www.europarl.europa.eu/cmsdata/149561/juri-committee-compromise-amendments-copyright-dsm.pdf. In the final version of Article 11 (now Article 15 para. 1(b)), the aforementioned wording is slightly different, thus expressly providing that “private (i.e., the word “legitimate” has been removed) or non-commercial uses of press publications carried out by individual users” are excluded from the scope of application of the press publishers right. Recital 56 of the Directive is additionally stating that these private and non-commercial uses include the online sharing of press publications conducted by individual users.
- 72.
Both in Recital 55 and Article 15 para. 1 of the Directive.
- 73.
Renumbered Recital 56.
- 74.
CJEU, Infopaq International A/S v Danske Dagblades Forening, Case C-5/08, Judgment of the Court of 16 July 2019, and subsequent case law.
- 75.
Article 15 para. 1 of the Directive.
- 76.
This second prerequisite for a press publication to fall within the scope of the press publishers’ right has been slightly changed in the text of the Directive adopted thus now describing the provision of information as addressing “to the general public”.
- 77.
In particular, Article 2 para. 4 of the text of the Directive on which final consensus was reached dictates that a press publication (defined as above) shall further: (a) constitute an individual item within a periodical or regularly-updated publication under a single title, such as a newspaper or a general or special interest magazine, (b) have the purpose of providing the general public with information related to news or other topics, and (c) be published in any media under the initiative, editorial responsibility and control of a service provider.
- 78.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167/10.
- 79.
In this regard, Recital 54 of the Directive emphasizes on the wide availability of press publications as regarded in relation to the constant emergence of new online services, indicatively stating the news aggregation and the media monitoring services. As it is respectively stated, the re-use of press publications constitutes an important part of such services’ business models, while further consisting of a source of revenues from which press publishers are deprived or at least prevented to have access to.
- 80.
Otherwise, their “organisational and financial contribution” in the production of press publications, as stated under Recital 55 of the Directive.
- 81.
Recital 55 of the Copyright Directive.
- 82.
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. OJ L 77, 27.3.1996.
- 83.
According to the wording of the compromise amendment of Article 11, authors shall receive an appropriate share of the additional revenues press publishers receive for the use of a press publication by information society service providers (emphasis added). Supra n. 78.
- 84.
Both Article 11 of the Proposal and the renumbered Article 15 of the final text of the Directive provide that Member States shall (emphasis added) provide press publishers (established in a Member State) with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC.
- 85.
Where an explicit reference to the quotation exception for criticism and review is provided under Recital 57 of the Directive.
- 86.
Articles 6–8 of Directive 2001/29/EC.
- 87.
Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired, or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. OJ L 242/6.
- 88.
Article 15 para. 3 of the Directive.
- 89.
Or, according to the final text of Recital 59 of the Directive, against other authorized uses of such works or subject-matter of protection. Article 15 para. 2 of the Directive dictates respectively that such uses concern the inclusion of works or other subject-matter of protection based on a non-exclusive license or for prohibiting the further use of such works or other subject-matter the term of protection of which has expired.
- 90.
Ibid.
- 91.
Article 15 para. 2 of the Directive. A similar provision was also included in Recital 35 and Article 11(2) of the Proposal.
- 92.
Indeed, the issue of hyperlinking as amounting (or not) to a restricted act of communication to the public has been treated in a different manner at national law even within the same jurisdiction and by the same competent court. See more in respect of the Greek case law in the area in: Nikolinakos et al. (2019).
- 93.
CJEU, Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB, Case C 466/12, Judgment of 13 February 2014.
- 94.
CJEU, GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker, Judgment of 8 September 2016.
- 95.
Article 11 para. 2(a) of the compromise amendment of Article 11; Recital 57 and Article 15 para. 1 of the Directive.
- 96.
Article 11, para. 4 of the Proposal.
- 97.
Council of the European Union (2018) Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, Interinstitutional File: 2016/0280 (COD).
- 98.
Under the draft compromise proposal issued by Axel Voss (the Copyright Directive Rapporteur) on March 28, 2018, not only press publishers but also news agencies were included in the rationae personae of Article 11 that would confer upon them the “inalienable right to obtain a fair and proper remuneration” for the digital use of their press publications: https://juliareda.eu/wp-content/uploads/2018/03/voss11.pdf.; Read more at: Rauer et al. (2018b). However, this proposal was strongly criticized as expanding the scope of exclusive rights to cover (unprotected) facts, threatening, as such, the fundamental right of access to information. Eventually, news agencies were explicitly included in the concept of ‘press publishers’, along with news publishers in the case where they publish press publications within the meaning of the Directive (Recital 55 of the Directive). In addition, the unwaivable nature of the remuneration provided under that proposal was argued to “interfere with the operation of open licensing” (such as the Creative Commons licenses): Vollmer (2018). At last, the final compromise amendment adopted by the JURI Committee on June 19, 2018 provided for the Member States’ obligation to grant press publishers with the rights of reproduction and communication to the public “so that they may obtain (emphasis added) fair and proper remuneration”, Supra n. 90. The wording of Article 15 para. 5 of the Directive provides, in this regard, that authors shall receive an appropriate share of the revenues that press publishers receive (emphasis added) for the use of their press publications by information society service providers.
- 99.
Read more about the main lines of criticism in respect of Article 11 at: http://copyrightblog.kluweriplaw.com/2018/03/13/copyright-reform-new-right-press-publishers-not/?doing_wp_cron=1535809220.9804170131683349609375.
- 100.
Academics against Press Publishers’ Right: 169 European Academics warn against it. https://www.ivir.nl/publicaties/download/Academics_Against_Press_Publishers_Right.pdf.
- 101.
Ibid.
- 102.
Article 2(8) of the 1886 Berne Convention for the Protection of Literary and Artistic Works.
- 103.
Van Eechoud (2017).
- 104.
Supra n. 70.
- 105.
According, though, to the “market expansion effect”, news aggregators constitute an “important channel for attracting visitors to news outlets” since they increase the news consumers’ awareness in respect of their content, increasing, as such, search visits. Supra n. 59.
- 106.
Read more about the news consumption system, the role and impact of aggregation and search engine services, and the development of the “‘hot news’ misappropriation doctrine” under the US jurisdiction based on direct competition and free-riding practices in: Whitmore (2015).
- 107.
The economic justification of the press publishers’ right lies in the fact that the replication and distribution of press publications, or more precisely, their “mass exploitation” derives from strong economic incentives as aligned with the business model of news aggregation and search-engine services. Intending to “build their own customer relationships in order to generate revenues”, these platforms “keep users away from the source”, causing detrimental effects to the press publishing sector. Legal Affairs. The proposed Directive on Copyright in the Digital Single Market (Articles 11, 14 and 16): Strengthening the Press through Copyright. http://www.europarl.europa.eu/RegData/etudes/BRIE/2017/596835/IPOL_BRI(2017)596835_EN.pdf.
- 108.
In this regard, 37 professors and leading scholars of Intellectual Property, Information Law and Digital Economy have responded to the IPO’s request for views in relation to the modernization of the EU copyright framework. Their response concluded by stating that the proposed right is “unnecessary, undesirable, introduces unnecessary uncertainty and is unlikely to achieve anything apart from adding to the complexity and cost of operating in the copyright environment”. Supra n. 75.
- 109.
Position Paper: New Rights for Press Publishers. https://www.communia-association.org/wp-content/uploads/2016/12/COMMUNIAPositionPaperonNewRightsforPressPublishers-final.pdf.
- 110.
Danbury (2016).
- 111.
Ibid.
- 112.
Being further regarded as contributing, inter alia, to the public’s access to information.
- 113.
Peukert (2016).
- 114.
Bently et al. (2017).
- 115.
For instance, in non-original photographs. Such rights may be either conferred upon publishers by the national legislator or transferred to them automatically, as in the case of employer ownership, or by virtue of an assignment agreement or an exclusive license.
- 116.
As the case in United Kingdom and Greece.
- 117.
Opinion of the CEIPI on the European Commission’s copyright reform proposal, with the focus on the introduction of neighbouring rights for press publishers in EU law (2016). http://www.ceipi.edu/fileadmin/upload/DUN/CEIPI/Documents/CEIPI_Opinion_on_the_introduction_of_neighbouring_rights_for_press_publishers_in_EU_final.pdf.
- 118.
That, according to this view, will be further ‘burdened’ by the establishment of a new right for publishers.
- 119.
Kretschmer et al. (2016).
- 120.
As the case of universities’ open access repositories. Ibid.
- 121.
From a differentiated, though, perspective.
- 122.
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. OJ L 157/45. According to this provision, in applying the measures, procedures, and remedies provided for in this Directive, it shall be sufficient, for the author of a literary or artistic work, for his/her name to appear on the work in the usual manner in order to be regarded as such (in the absence of a proof to the contrary) and to be consequently entitled to institute infringement proceedings. In addition, this presumption applies mutatis mutandis to holders of rights related to copyright with regard to their protected subject-matter.
- 123.
Kreutzer (2016).
- 124.
Hoppner (2018).
- 125.
Position Statement of the Max Planck Institute for Innovation and Competition on the Proposed Modernisation of European Copyright Rules: PART E: Protection of Press Publications Concerning Digital Uses. https://www.ip.mpg.de/fileadmin/ipmpg/content/stellungnahmen/MPI_Position_Statement_PART_E_Publishers_2017_02_21_RMH_VM-def-1.pdf.
- 126.
Supra n. 81.
- 127.
That shall be further construed in an autonomous and uniform manner throughout the Union. Ibid.
- 128.
Consisting of the question brought before the court in the Infopaq case.
- 129.
Brussels Court of Appeal, Copiepresse SCRL & alii v. Google Inc., Judgment of 5 May 2011.
- 130.
Contrary to the conclusion reached, in a similar case, by the Spanish Supreme Court. Supra n. 68.
- 131.
Furthermore, there is a relevant debate on the eligibility of Google’s catching system to fall within the ‘transient copying’ exception provided under Article 5(1) of Infosoc Directive and more precisely, on whether the reproduction made by Google News should be characterized as transient or not, as well as on the substance of its economic significance. An additional (to the reproduction right) controversy has also been developed on the grounds of a potential infringement of the making available to the public right. Van Eechoud et al. (2009).
- 132.
Supra n. 124.
- 133.
Frosio (2018).
- 134.
Supra n. 139.
- 135.
A reference that also persisted in the final version of the Proposal under Recital 56.
- 136.
It has been argued that since not provided by the wording of Article 11, a question remained as to the place where the eligible for protection publication should be published to be eligible or not for protection, as well as in relation to the criteria (i.e., nationality) applying to beneficiaries especially in the case of international situations. Rosati (2018).
- 137.
According to Article 5(3)(d) of the Infosoc Directive, Member States may provide (emphasis added) for exceptions and limitations to the reproduction, communication to the public and making available to the public rights in a number of cases, including quotations for purposes such as criticism or review, provided that: (i) they relate to a work or other subject-matter which has already been lawfully made available to the public, (ii) that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that (iii) their use is in accordance with fair practice, and to the extent required by the specific purpose.
- 138.
Since the international treaty dictates under Article 10(1) that it “shall be (emphasis added) permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries”.
- 139.
Article 5(3)(d) of the Copyright Directive.
- 140.
As demonstrated in the Study for the JURI Committee on the press publishers’ right. Supra n. 75.
- 141.
Despite the assertion to the contrary. Keller (2016).
- 142.
- 143.
Recitals 1–3, 54–55 of the final text of the Directive.
- 144.
Supra n. 139.
- 145.
Pomianowski (2016).
- 146.
Supra n. 13.
- 147.
Following the introduction of the new press publishers right.
- 148.
Van Gompel (2017).
- 149.
Renumbered as Articles 15 and 16 in the text of the Directive adopted. In respect of Article 16, it provides for the discretion of Member States to provide that in the case where the author has transferred or licensed a right to the publisher, such a transfer or a license constitutes a sufficient legal basis for the publisher to be entitled to a share of the compensation for the uses of the work made under an exception or limitation to the transferred or licensed right.
- 150.
Supra n. 141.
- 151.
EDiMA. Directive Copyright in the Digital Single Market: The impact of Article 11—publisher rights. http://edima-eu.org/wp-content/uploads/2017/11/EDiMA-DE-Policy-Brief-on-Publisher-Rights.pdf.
- 152.
Both in the institutional, namely the legislative framework and in the judicial context.
- 153.
Supra n. 129.
- 154.
Proposals to Directive on copyright in DSM—presumption for publishers of press publications (2017). http://www.dekuzu.com/en/2017/10/proposals-to-directive-on-copyright-in-dsm-presumption-for-publishers-of-press-publications.html.
- 155.
Initially proposed in September 2017 by the Estonian Presidency. More precisely, this compromise proposal included two completely different options; the first was to keep Article 11 in the form originally proposed with slight differences. The second introduced the replacement of the provision by a rebuttable presumption that the publisher shall be regarded as the legitimate rightholder to all protected works incorporated in the respective press publication in the absence of a proof to the contrary. This solution was adopted and further proposed by the Former Rapporteur of the Committee for Legal Affairs (JURI), Therese Comodini Cachia (EPP, Malta).
- 156.
CA 12bis - Article 11: ALTERNATIVE (Supported by Greens and GUE). http://www.europarl.europa.eu/cmsdata/149561/juri-committee-compromise-amendments-copyright-dsm.pdf.
- 157.
Julia Reda discusses the current Proposal for a Directive on copyright in the Digital Single Market (2018). http://copyrightblog.kluweriplaw.com/2018/06/18/julia-reda-discusses-current-proposal-directive-copyright-digital-single-market/?print=print.
- 158.
Such as the term of protection of the press publishers’ right which was limited to five (5) years instead of its 20-year initial duration; the final text of this provision as adopted by the European Parliament provides, as aforementioned, for a two-year term.
- 159.
Concerning, in particular, the reduced term of protection thus lasting only for two (2) years and the exclusion of isolated words or very short extracts of press publications from the scope of the right.
- 160.
Recitals 19, 39, 41, 42, 44, 46, 49, 50, 51, 54, 55 and Articles 7–10 of the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77/20.
- 161.
Supra n. 104.
- 162.
A digital agreement: The media and technology companies need to move forward together (2017). https://elpais.com/elpais/2017/03/24/inenglish/1490355715_551697.html.
- 163.
- 164.
- 165.
- 166.
Rosati (2017b).
- 167.
Karapapa (2018).
- 168.
Including EMMA, ENPA, EPC, and NME. See more at: https://www.publishersright.eu/background.
- 169.
In this regard, more than a hundred members of the European Parliament called for the deletion of Article 11 of the Directive on copyright in the digital single market, requesting, in contrast, an “alternative, less invasive, and more proportionate solution to support quality journalism and freedom of the press in the digital age”. https://www.digitalagendaintergroup.eu/more-than-a-hundred-meps-oppose-new-publishers-right/.
- 170.
- 171.
Supra n. 6.
- 172.
- 173.
Lomas (2018).
- 174.
Times Editorial Board (2019), Copyright holders win big in Europe, but at what cost?. https://www.latimes.com/opinion/editorials/la-ed-eu-copyright-directive-20190327-story.html.
- 175.
Pakenham-Walsh (2018).
- 176.
- 177.
Anderson (2019).
- 178.
European Parliament. Press Release of 26 March 2019. http://www.europarl.europa.eu/news/en/press-room/20190321IPR32110/european-parliament-approves-new-copyright-rules-for-the-internet.
- 179.
Supra n. 184.
- 180.
- 181.
- 182.
Heijmans (2019).
- 183.
Ibid.
- 184.
Grabham (2019).
- 185.
- 186.
Khan, M., Murgia, M., and Barker, A., “Google under fire over not paying for news content in Europe”, https://www.ft.com/content/a451ffda-df87-11e9-9743-db5a370481bc; Kayali, L., “Google refuses to pay publishers in France”, https://www.politico.eu/article/licensing-agreements-with-press-publishers-france-google/.
- 187.
Cooke (2019).
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Papadopoulou, MD., Moustaka, EM. (2020). Copyright and the Press Publishers Right on the Internet: Evolutions and Perspectives. In: Synodinou, TE., Jougleux, P., Markou, C., Prastitou, T. (eds) EU Internet Law in the Digital Era. Springer, Cham. https://doi.org/10.1007/978-3-030-25579-4_5
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