The Past and Present of Press Publishers’ Rights in the EU

Abstract

In the EU, the policy choice was to create a new ancillary right in favor of press publishers, meaning newspapers published in print or online. It was one of the achievements made by the controversial DSM Directive. Two articles were highly disputed: Articles 15 and 17. Both share the same goal: obtaining a better share of the value created on the internet for the authors. Article 17 offers authors strong negotiation leverage by considering that online content sharing service providers communicate content uploaded by users to the public. Article 15 creates an ancillary right in favor of press publishers to facilitate negotiation against internet platforms.

Recital 54 clearly explains the motivation of the EU legislator. First, there is a strong need for “a free and pluralist press,” which “provides a fundamental contribution to . . . the proper functioning of a democratic society.” Second, the “availability of reliable information” is related to the ability of press publishers to recoup their investments (Recital 55). Third, “publishers of press publications are facing problems in licensing the online use of their publications to the providers of those kinds of services, making it more difficult for them to recoup their investments.” The equation thus described seems rather simple. If press publishers are not able to license, they won’t be able to recoup their investments, and the public availability of reliable information will be in danger. Having said that, the goal for the EU legislator “is to strengthen [press publishers’] bargaining position[s] by securing their legal certainty,” which implies that the legislation wants to ensure press publishers’ ability to license. Providing an ancillary right is clearly seen by the EU legislator as a tool in favor of the protection of investment. That was already the case with the sui generis right given to the maker of a database in order to ascertain its investment in the creation of the database. Interestingly, these two ancillary rights are pure EU creation without any international background. Both are created at an EU level in order to secure investment and to facilitate licensing. The additional element for the justification of the press publishers’ right depends on a close link with democracy.

While it is easy to feel apprehensive about the complexities of such a licensing scheme, the solutions the scheme could bring are even more complex to determine. What is not clear at first is why copyright protection is not be sufficient to solve the problem of licensing. At least in France, press editors are vested with moral and economic rights regarding publication. Moreover, the existence of a contract between the journalist and the press publisher leads to a presumption of assignment of the journalist's rights to the publisher, contrary to the traditional solutions of French law. Furthermore, the Belgian case of Copipresse showed that copyright is not an inefficient means of licensing press publishers’ content. In that case, Press publishers won against Google because titles and first lines of articles reproduced by Google are protected by copyright law. Nevertheless, Google decided to stop aggregating these press publications in Belgium right after that decision. If this outcome was more a draw than a victory for press publishers, the failure does not come from copyright law. It remains that the Achilles heel of news articles’ copyright protection is the originality requirement and the need to prove that the reproduced extracts or titles are original and protected. The strength of the press publishers’ right is that the protection is not related to any legal requirement such as originality or investment. Protection is only tied to the legal notion of press publication. The apparent automatic nature of the right makes it easier to prohibit unlicensed online use of press publishers’ articles and gives them a strong negotiating leverage. The last question concerns the efficiency of a press publishers’ right. Before the creation of an EU ancillary right, European national experiences show that providing press publishers’ ancillary rights in addition to copyright protection is not always efficient. German copyright law was amended in 2013 in order to create a new ancillary right in favor of Press Publishers. Nevertheless, it was a failure since Google refused to negotiate with press publishers. Spain has passed a somewhat similar law. The law went into effect in Spain in January 2015, but Google News Spain was shut down on December 2014.

What is unclear is how a failure at a national level could become a success at an EU Level. Is it enough to grant a new right to press publishers to strengthen their bargaining position? In order to answer that question, the first part of the article will be devoted to the European law of press publishers. The second part will discuss the French experience which shows that the ancillary right is not an effective solution as such.