Beware: The “neighbouring right for publishers” is an ancillary copyright on steroids! – To the potential consequences of a general neighbouring right for publishers 15/06/2016 by Till Kreutzer
Today, June 15 2016, the European Commission’s “Public consultation on the role of publishers in the copyright value chain and on the 'panorama exception' (http://ancillarycopyright.eu/news/2016-03-23/commission-launches-public-consultation) ends. It introduces a new euphemism into the debate on publisher’s rights: The “neighbouring right for publishers”. Sounds harmless enough, does it not? Yet, this new angle is far from harmless. On the contrary, this “neighbouring right” is in fact more dangerous than an ancillary copyright for press publishers (AC) alone could ever be. It’s an AC on steroids.Getting rid of the infamous term “ancillary copyright for press publishers” in favour of a more generic “neighbouring right for publishers” is a crafty trick that seeks to distance this new consultation from the fundamentally failed German and Spanish approaches to copyright for press publishers. The re-phrasing aims to make us believe that a “neighbouring right” will not have massive detrimental effects on Internet communication, searching and linking and other key aspects of the digital world.
The truth is this: “Neighbouring rights” and “ancillary rights” are synonymous terms-- so are “related rights” for that matter. All these phrases stand for exclusive rights in – in this case – publications of literary works that are granted to publishers. These rights would form an additional layer of protection on top of the copyright that already protects the publications’ content. The publisher’s right would protect the publication of a work whereas copyright protects its creation. “Neighbouring right for publishers” doesn’t just equal the term “ancillary copyright for press publishers”--it goes far beyond.
Bigger, broader and further-reaching.
The German AC is actually a very narrow (but nefarious) right, applying “only” to the use of text and possibly image thumbnails by aggregation and search services. The Spanish AC is limited to online services “aggregating” content - news aggregators social media providers and the like. It does not apply to horizontal search engines. However narrow they were, these new rights caused a lot of harm to both the search and the publishing sector and other stakeholders (see about their history in our brochure, http://leistungsschutzrecht.info/sites/default/files/broschuere_zum_lsr_von_igel.pdf).
In contrast, a generic European publisher’s right like the one under consideration by the current consultation stand to cause far more trouble. Of course, its concrete effects would depend on the final drafting. Yet, this extensive approach faces a number of fundamental general concerns that add to the particular concerns against the ancillary copyright for press publishers.
An idea to copyright the Internet?
A generic neighbouring right for publishers could mean that any kind of publisher (at least of literary works) would get an exclusive right to their publications irrespective of the type of publication. That is, unless the European Commission can figure out how a publishing house, a blogger, an active Facebook user or commentator can be precisely distinguished in the definition of a “publisher”.
Those who are familiar with the Internet no doubt realise that “publishing literary works” (in plain language: text or written words) is what we are doing all the time. What we call “writing a blog post”, “posting to Facebook” or “running a website”, is by legal definition “publishing a literary work” and “making it available”.
By that definition, every active Internet user is a “publisher” who could be awarded with an exclusive right for anything he would post online. It all sounds like a golden dream for copyright lawyers and copyright trolls but like a total nightmare for the Internet and its users.
Broader scope = maximum number of victims, maximum legal uncertainty
Such a broad approach would affect far more than just traditional publishers. It would cause the number of licensing transactions that are necessary to inform, communicate, aggregate etc. on the Internet to explode. The negative effects on innovation, free online communication, linking, sharing and social networking would be far worse than those caused by the previous versions of ancillary rights.
Even worse, the new generic publisher’s right would not only exceed the AC of old but also the current scope of copyright itself. To get publishers their claimed share of online search companies’ incomes the right must be applied to even the smallest parts of publications. Single sentences, headlines and paragraphs would be monopolized as a result. The effect would be legal chaos. An impervious thicket of exclusive rights on any published text snippet would be created. Imagine the copyright melee over a headline like “Terror attack in Paris” after it was published once.
This chaos would affect not just online activities, but also anybody who “communicates to the public”, i.e. on TV, radio etc. Even worse, apart from the online services such as social networks, news aggregators, apps etc. literally any Internet user would be affected. This includes bloggers, broadcasters, public institutions, news agencies, public institutions and more. The chilling effects on innovation, communication and information both online and offline are mind-boggling.
A generic neighbouring right restricts the rights of the authors
A neighbouring for publishers would cause significant problems in its relation to the author’s rights. An author owns the copyright in her text. So far it is one basic principles of copyright that she is free to decide, whether she wants to license her work exclusively to one publisher or to split it up. She might license eBook rights exclusively to an online publisher, keep the right to (self) publish a book to herself and use a Creative Commons License for to spread excerpts in order to attract more attention. But what happens if the eBook publisher gets an own right in the text for his first publication? Would the other uses of the author infringe on this right? The problem here is – again – that the scope and subject of the publisher’s right cannot be defined and it cannot be properly distinguished from the subject of the copyright. A text is a text. By publishing it on a website or in an eBook the text does not change.
A generic neighbouring right for publishers undermines the public domain
Currently, once the copyright on a “literary” work expires, 70 years after the author’s death, the text is public domain. It can be used by anybody for any purpose, for example for academic research, publications of museums and libraries or simply for republishing in open access databases like the Gutenberg Project or the Internet Archive. Take the example of public domain of Anne Frank’s diary. It is hotly debated whether and where it becomes public domain (i.e. copyright-free) this year. If book publishers had neighbouring rights, free re-publications of the diary would most likely be impossible. If publisher’s rights were granted the question when the copyright expires would become more or less obsolete. If publisher’s rights were granted for 50 years after the publication an 1999 edition of Anne Frank’s diary would block re-publications until 2050. If another publisher makes a new edition in 2020, this right would expire in 2070. And so on.
The example shows a number of significant issues: Who owns the publisher’s right in Anne Frank’s diary? The first publisher and/or any later publisher? Would any later publisher need to get a license from the first publisher? What would the right exactly protect? The layout of the book, the text itself, the edited version, all of these things…?
A generic neighbouring right for publishers would fundamentally change information and communication practises online and offline. When exclusive rights protect the publication of any text snippet, headline, sentence and paragraph, the legal chaos is absolute. When the publication of any work can cause a new publishing right to accrue, the term restriction and the concept of public domain are nothing but theory anymore. Let’s hope the commission has these factors in mind.This work is distributed under the Creative Commons BY 4.0 Licence.
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