"Grossly disproportionate" – New study on publisher's right  17/01/2017 by Tom Hirche

OpenForum Europe (OFE) has commissioned Dr. Mireille van Eechoud, who is Professor of Information Law at the University of Amsterdam's Faculty of Law, to conduct a study on the ancillary copyright for publishers as proposed by the European Commission. It is very carefully written and pays special attention to the freedom of expression, the special effects on authors and open data/science.

In order to introduce a new exclusive right, market failure must be given. Van Eechoud correctly works and points out that this is a "highly contested" issue regarding the relationship between news publishers and news aggregators/search engines. Although the proposed publisher's right "would potentially cover all other domains where periodical publications are a form of communication, e.g., professional, business, educational, and government publications", the European Commission had not explained "why all of these domains experience market failure justifying regulatory intervention."

Van Eechoud is at least surprised by the European Commission's "expectation that the new right would have a positive impact on freedom of expression" and reminds the organ to "ensure any legislative intervention conforms to the standards of article 10 ECHR and 11 CFR." The proposed protection term of 20 years is qualified as "grossly disproportionate".

Furthermore, van Eechoud criticises that the publisher's right "would go beyond existing copyright and database rights" as even the "smallest uses" of text would be covert by it due to missing restrictions which might consequently "backfire on journalists and the press as users of information." If the new right shall only solve problems connected with copyright enforcement, then it "seems disproportionate, especially in light of the absence of any data on the scope of the problem."

Due to the proposed right currently also extending to "periodicals published by public sector bodies", van Eechoud recommends to exclude them from the proposal and that "a similar clear exclusion should be made for academic and scientific publications."

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