How to solve the only specific problem of press publishers with copyright without an ancillary copyright 23/11/2016 by Till Kreutzer
The only argument of the press publishers in their quest for an own ancillary right that seems reasonable to a certain degree is their call for facilitated enforcement. They bemoan that it is difficult to enforce rights against mass online piracy. If this is a factual problem it can be solved easily without even touching the matter of an ancillary copyright.
The argument of the press lobbyists
The publishers claim that their call for an ancillary copyright is not only justified but in fact imperative to give them the necessary means to fight alleged massive online piracy of their content.
See e.g. http://www.empower-democracy.eu (emphasis added):
“With such a right, press publishers will be able to defend their intellectual property against rightless use, thereby protecting the value of their work.”
Or http://www.publishersright.eu/faq (emphasis added):
“If press publishers are added to the list of current right holders this will give publishers clear legal rights and enable them to improve their licensing options, give them the ability to enforce against infringements and thereby encourage investment and innovation in the sector."
The Commission has adopted this argument 1:1. In the explanatory memorandum to the DSM directive draft proposal (p. 3) the facilitation of enforcement is named as a main goal of the approach:
“This proposal provides for a new right for press publishers aiming at facilitating online licensing of their publications, the recoupment of their investment and the enforcement of their rights.”
Also, in recital 31 the Commission states:
“In the absence of recognition of publishers of press publications as rightholders, licensing and enforcement in the digital environment is often complex and inefficient.”
There is some truth in these statements but it does not at all relate to an ancillary copyright. Indeed enforcement problems affect everybody who manages a large number of rights. The issue results from a basic rule in rights enforcement: Anybody who seeks to enforce copyrights or neighbouring rights against infringers has to prove his rights ownership. This can become particularly complex when a great number of rights, originating from numerous initial rights holders (like authors) have to be defended. If e.g. a whole press website with thousands of articles is scraped and cloned by a freerider the publisher would have to prove its legal entitlement in every single article, graphic or image to stop the infringement entirely.
This problem is not publisher specific. It affects e.g. in particular collecting societies that manage and enforce hundreds of thousands of rights for their members. Would that mean that collective management organisations need their own Intellectual Property Right and that the EC is required to grant a new neighbouring right for collecting societies?
The cure: Legal presumptions concerning the rights ownership
Of course not, the idea is absurd. Fact is: Difficulties of rights enforcement must be addressed by rights enforcement rules. Therefore the EU copyright law contains directives about the material copyright law and a directive about the enforcement of Intellectual Property Rights (the Enforcement directive, 2004/48/EC).
It is commonly known that creating a new Intellectual Property Right to facilitate rights enforcement equals cracking a nut with a sledgehammer. It would cause much more collateral damage than it would do good. This has been known for a long time and for a long time there was a well-known, very simple – and harmless – mechanism to facilitate and enable rights enforcement. It has nothing to do with a neighbouring right.
Example 1: The German GEMA-Vermutung
Such mechanism is e.g. in place in Germany, called the “GEMA-Vermutung” (the “GEMA presumption”). It helped the GEMA e. g. in the German litigation against Youtube. The doctrine facilitates the burden of proof by presuming that the GEMA is entitled to enforce rights in every copyright protected musical composition. Hence, the GEMA does not have to prove her entitlement in court but anybody who alleges that the GEMA is not entitled has to prove the opposite.
Example 2: Art. 5 Enforcement Directive
A similar mechanism has also been part of the European law for a long time. Art. 5 of the Enforcement directive (2004/48/EC) facilitates the burden of prove for initial rights holders – like authors and the owners of neighbouring rights. It reads (emphasis added):
Presumption of authorship or ownership
For the purposes of applying the measures, procedures and remedies provided for in this Directive,
(a) for the author of a literary or artistic work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings, it shall be sufficient for his/her name to appear on the work in the usual manner;
(b) the provision under (a) shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter.
Recital 19 of the directive explains the rule as follows:
“Since copyright exists from the creation of a work and does not require formal registration, it is appropriate to adopt the rule laid down in Article 15 of the Berne Convention, which establishes the presumption whereby the author of a literary or artistic work is regarded as such if his/her name appears on the work. A similar presumption should be applied to the owners of related rights since it is often the holder of a related right, such as a phonogram producer, who will seek to defend rights and engage in fighting acts of piracy.”
The legal effect of Art. 5 is that the general rule about the burden of proof concerning the rights ownership is reversed. The person who is named as the rights owner is presumed to be entitled to enforce the rights. Anybody who wants to contest the presumption can rebut it by proving the contrary.
The cure for press (and other) publishers: Extending Art. 5 to publishers
Publishers are neither authors nor initial rights owners since they do not have (and must not have) an own neighbouring right. Therefore Art. 5 is not yet applicable to them. However it would require only a tiny modification to achieve the same effect in their favour. Art. 5b could be complemented as follows (addendum in bold type):
(b) the provision under (a) shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter and press publishers with regard to their licensed works or other subject matter.
The wording relates to Art. 4b) of the Enforcement directive that already provides that licensees (like press publishers but also collecting societies etc.) shall be entitled to the measures, procedures and remedies that are provided in the directive (see recital 18 for details).
This tiny and simple extension of the Enforcement directive could also be included in the DSM directive proposal which is already extending other directives to a certain degree (see p. 4 of the proposal). It would entirely cure the only specific problem press publishers can reasonably invoke in the debate about copyright law.
Problem solved, no ancillary right needed, online freedoms secured!This work is distributed under the Creative Commons BY 4.0 Licence.
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