CEIPI's opinion on a European ancillary copyright for press publishers  13/12/2016 by Tom Hirche

On November 28, the Centre for International Intellectual Property Studies (CEIPI) at the University of Strasbourg has published its opinion on the European Commission's copyright reform proposal which was introduced on September 14, 2016. The opinion was written by Professor Christophe Geiger, Oleksandr Bulayenko and Giancarlo Frosio who solely focused on the proposed introduction of neighbouring rights for press publishers in EU law. In their view, the negative effects of the proposal prevail.

The proposal will deepen fragmentation

The authors criticise that the Commission's proposal "does not pre-empt the re-emergence of new national legislation extending rights of press publishers." Consequently, Member States would not only keep their national legislation with its individual exception but also remain free to create further neighbouring rights limited to their territory. The opinion states that "the Impact Assessment [accompanying the Directive Proposal] fails to explain how an additional layer of 28 national rights might promote the Digital Single Market." This would lead to the conclusion that "the proposal poses further challenges related to the territoriality of rights and their fragmentation" and will thus hurt the Digital Single Market.

Authors will suffer financial loss

The CEIPI opinion fears that after the press publishers will be given their neighbouring right, publishers in another sectors as well as other economic actors might also claim their own neighbouring right "based on their input in the value chain of production and dissemination of cultural goods and services." However, "the grant of rights to ever more actors will decrease the economic value of each right covering essentially the same economic use".

Furthermore, as the publishers shall be given the right of reproduction and making available to the public for digital use, the Impact Assessment would fail to evaluate the financial impact on authors due to the overlap with their rights already existing. The opinion refers to the so-called "pie theory" which says that "new royalties stemming from neighbouring rights are going to be distributed at the expense of those receiving royalties from authors’ rights today."

Additionally, a combined reading of Article 11 and 12 of the Directive Proposal would raise further concerns because "the two provisions might bestow upon publishers two revenue streams if the same remunerated exceptions or limitations (e.g., private copying and educational use) are given for authors’ and neighbouring rights." At the same time, the "pie does not get any bigger." Hence, the authors' share would shift to the publishers and thus inevitably decrease which would ultimately undermine the overall functioning of the copyright system, "especially because it should primarily secure fair remunerations to creators (rather than only compensate the investment of rightholders), while at the same time providing access to users."

Burden of proof and missing causality

The opinion further points out that publishers most commonly would already hold author's economic rights through customary contracts or certain legal presumptions in some Member States like work for hire. This had led some publishers to even argue against the necessity of an own neighbouring right. Also, "the introduction of neighbouring rights will not change the burden of proof for proving ownership of authors' rights in court." The authors regard systemic licensing and enforcement problems hardly as an effective argument "to push for expansion or the introduction of new intellectual property rights."

Besides, the Impact Assessment would also fail "to demonstrate a causal link between publishers' revenues and investments and granting them neighbouring rights to press publications." Moreover would evidence from Germany and Spain–which already implemented further rights for (press) publishers–confirm that this legislation not only had "a negative impact on small publishers, while news aggregators might have a positive effect on online news sites," but also that "this might have negative repercussions on plurality of sources, users' access to information–and therefore on democratization."

Overbroad scope

The authors of the opinion continue by criticising that the proposal would "not limit the subject matter to publications presently protected by authors' rights" which would consequently mean that unoriginal works or works in the public domain, although not subject to authors' rights, "might be protected by neighbouring rights." Even the use of works published under a public license like Creative Commons could be restricted. This would greatly impinge on freedom of expression while "favouring centralization of information."

Additionally, the wording of the proposal would leave too much room for interpretations. The authors mention the term "news websites" as one example. Also, "the wording of Article 2(4) apparently implies that the neighbouring rights granted would not be limited to literary works but would cover all subject matters." Furthermore, the proposal would not limit the scope to commercial purposes.

Finally, the CEIPI considers the "proposed period of 20 years of protection" to be "way too long."

Conclusion

The authors recommend the Commission "to refrain from advancing this legislative action."

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