CEIPI Opinion on a EU Proposal for a Neighboring Right for Press Publishers Online

At CEIPI, I have co-authored with Christophe Geiger and Oleksandr Bulayenko a position paper discussing the proposed introduction in EU law of neighboring rights for press publishers for the digital uses of their publications. The proposal is included in the European Commission’s Draft Directive on copyright in the Digital Single Market of September 14, 2016. Below you find the summary of the paper:

• The Directive Proposal—and the documents accompanying it—fail to explain how an additional layer of 28 national rights might promote the Digital Single Market. Rather, the proposal poses further challenges related to the territoriality of rights and their fragmentation. In addition, as there is already no uniform approach to exceptions or limitations to 28 national authors’ rights, 28 additional national rights for publishers will suffer the same uncertainty, making the Digital Single Market harder to reach.
• Granting rights to ever more actors will reduce the economic value of each right covering essentially the same economic use. While the Impact Assessment accompanying the Directive Proposal concludes that the “introduction of a related right covering digital uses of press publications is not expected to generate higher licence fees for online service providers”, it fails to assess the impact of the Directive Proposal on authors. As the “pie” does not get any bigger, the authors’ share will inevitably decrease. Ultimately, this might 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.
• In this regard, the Impact Assessment fails to demonstrate a causal link between publishers’ revenues and investments and granting them neighbouring rights to press publications—and/or promoting mechanisms facilitating initial ownership of authors’ rights by publishers. In contrast, recent empirical evidence from national implementation of publishers’ neighbouring rights confirmed a negative impact on small publishers, while news aggregators might have a positive effect on online news sites. This might have negative repercussions on plurality of sources, users’ access to information—and therefore on democratization. Also, increasing barriers to innovation and desincentivizing new business models might be an additional effect of the reform.
• The Directive Proposal does not limit the subject matter to publications presently protected by authors’ rights. It goes far beyond, restricting, for example, uses of works in the public domain. Lifting materials out of the public domain has unwanted consequences, impinging greatly on freedom of expression and democratization, while favouring centralization of information.
• Any economic input into the value chain of creative activities does not merit the grant of a property right. Also, a grant of a neighbouring right to one economic actor cannot be a reason for granting such right to another one. Moreover, the Directive Proposal does not follow any meaningful logic of investment reward, since it proposes to grant rights to any publication, even those that do not involve any substantive investment. For example, publication of any trivial information on a “news website” will be sufficient for the grant of neighbouring rights.
• Finally, in any event, if this proposal is ever going to be approved, the scope of protection—extending also to non-commercial uses—and the term of protection are overbroad.