Estonia's proposal is good and bad at the same time  31/08/2017 by Tom Hirche

Summer break is over. Statewatch has leaked a compromise proposal from the Estonian Presidency of the Council of the European Union to the EU Commission's initial proposal for a directive on copyright in the Digital Single Market. When it comes to Article 11 containing the ancillary copyright for press publishers, the Presidency does not come up with only one but with two completely different proposals.

Option A: The bad

The first one should be disposed of right away. It takes the Commission's text and manages to make it even worse: The publisher's right shall be extended from covering online press publications only to press publications published in any media plus it shall explicitly cover photographs and videos that are contained in a press publication. Combined with the (unchanged) retroactive protection clause in Article 18(2) that grants protection to all press publications from the past, a state will be created in which nobody knows for sure what can be cited and shared online. Bravo.

Option B: The good

The second proposal is much more balanced. It gets rid of the idea of a new publisher's right and instead suggests the introduction of a rebuttable presumption for publishers of press publications that allows them to fight infringements of their acquired right much more easily. The publisher shall be regarded as the legitimate rightholder to all protected works incorporated in the respective press publication until the contrary has been proven. Currently, it is the press publisher who has to prove in court that he/she holds the infringed rights – which can be a very complex and error-prone thing to do. 

This idea is not completely new, though. Former rapporteur of the Committee for Legal Affairs (JURI) Therese Comodini Cachia (EPP, Malta) proposed it before (but later stepped down and got replaced by Axel Voss (EPP, Deutschland) before her report got voted on), and also we had presented a similar approach in the past. However, it is good to see that this option is on the table again as it solves the publishers' (alleged) problems with online piracy while neither harming the freedom of information nor creating disastrous legal uncertainty. When discussing the directive, Member States need to be aware that there is a much better option than introducing a new right for publishers.

The ugly

Joanna Plucinska has also reported on the Presidency's proposal on Politico but in an outrageously biased way which cannot be left uncommented. According to her, "[t]he proposal doesn’t suggest deleting [...] the publisher’s right". Why yes, it does! Option B clearly ditches the idea of an ancillary copyright – or how would you call it when the whole text of Article 11 as proposed by the Commission gets erased and is replaced by a legal presumption?

Plucinska also does not waste a single word on the negative impacts a publisher's right would have. Instead, she complains that option B "minimizes references to press publishers’ financial roles in producing media work." As if giving props is what a legal text should all be about. The clear advantages of option B when compared to option A do not get mentioned, of course.

The text ends by saying that the right was not deleted "despite calls from Google and MEPs like German Greens member Julia Reda to do so." Well, to begin with, it is not wrong that these two spoke out against the publisher's right. But how come she forgot all the others like for example the 80 MEPs who signed an open letter to the Commission, the publishers who explicitly do not want this right, the thousands of consumers that gave their thumbs down when responding to the Commission's public consultation or showed their protest by joining the Save the Link campaign.

Maybe this has all to do with Politico belonging to the German publishing house Axel Springer which has been the driving force behind the German ancillary copyright for press publishers and is now pushing for a new right at EU level. Who knows.

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