Adequate legal protection is needed to ensure the diversity of the press and the future of quality Journalism in Europe
- As part of the copyright reform package, the European Commission is expected to publish proposals to provide for new rights to protect the unauthorised reproduction and making available online of press publications (i.e. the rights provided for in Articles 2 and 3(2) of the 2001/29/EC directive).
- The intentions of how these will apply will be described in the Recitals of the legal text, including what constitutes news, and publishers, concentrating on publications of a journalistic nature (i.e. press and periodicals/magazines) but also those providing information and entertainment.
- Exceptions covered by Articles 5 to 8 of the 2001 Directive will apply (plus of course any new ones like the one we expect on TDM).
The reform package, expected to contain draft legal texts and an overarching Communication, is due to be published on 21 September. Commissioners discussed the draft for the first time on 31 August.
Between March 23 and June 15 this year, the European Commission ran a public consultation on the possibility of proposing a related right for publishers. The following is a description of what a publisher’s right might look like as well as 10 myths and our responses to counteract a vigorous anti-copyright campaign that is being waged against any such proposal. This would be a significant piece of legislation for publishers and other rightholders and the EPC is welcoming the EC’s intervention at this critical time for the digital transformation of the press.
A PUBLISHER’S RIGHT: IN SHORT
Despite what anti-copyright campaigners are claiming, THE “LINK” IS NOT UNDER THREAT: publishers want and actively encourage their readers to share links to articles.
Publishers are asking the European Commission to add publishers to the list of rightholders at EU level. Why?
Did you know that publishers do not currently have their own copyright under EU law? The articles, still images or literary works that publishers make available are protected individually but the ‘published edition’ – i.e. the sum of the contributions from journalists, photographers, designers and editors, is not protected. In the analogue age, this was adequate protection as large-scale copying of content was impractical. In this digital age when large volumes of content can be scraped, copied and distributed in the blink of an eye, copyright for press publishers is out of date. A publisher’s right would provide copyright protection of the ‘digital published editions’. A publisher’s right would give more flexibility in licensing and more legal clarity to enforce rights.
Nothing we are asking for would affect the way that our readers access publishers’ content, or share links on social media or via apps and email to friends and family. Nor are we seeking to change the contractual arrangements with our journalists, photographers and other contributors as we are asking for a related, or neighbouring right, so called as it sits alongside the exclusive rights of the authors.
We are not asking for the German ancillary right which does not protect the whole published edition, but rather only certain uses, i.e. snippets, and then only for specific users – i.e. search engines and aggregators. Nor are we asking for the Spanish approach with mandatory payment for snippets. We are certainly not asking for a links tax, or a Google tax.
A free and independent press can only exist if there is adequate revenue to pay journalists, photographers and freelancers and to finance their training and security. Today, this prospect is increasingly reduced, mainly due to loss of revenues: the majority of advertising revenues go to search and social media; unauthorised and unremunerated large-scale re-use of publishers’ content and a lack of legal clarity to enable enforcement against large-scale infringements.
A publisher’s right would afford publishers the same rights as already enjoyed by music, film and software program producers, whose finished works are copyrighted in their entirety giving them the legal right on how and where their content is made available.
And finally, every publisher would have the right to waive this right, or to manage it exclusively or collectively – but, very importantly, it would be their choice.
What publishers are asking for in summary?
- All journalistic content to be covered by this right – no illogical discrimination between types of coverage
- No illogical differentiation between online and offline (piracy exists in both domains; two enforcement processes would be impractical and burdensome for SMEs in particular)
- Fair term of protection in line with other neighbouring rightholders.
Myth 1: We are asking for a Google/snippets/links tax in line with the German and Spanish approaches
We are not asking for the German ancillary right which does not protect the published edition, but rather only certain uses, i.e. snippets, and then only for specific users – i.e. search engines and aggregators. Nor are we asking for the Spanish approach with mandatory payment for snippets. We are certainly not asking for a links tax, or a Google tax.
Myth 2: Publishers will use this right to block access to their content
Why would we do that? Popularity of our content has never been greater particularly with the growth of smartphone readership and multiple access points to our content.
Myth 3: This is just about Google
No, it isn’t. It is a sad fact of the internet that there are many companies, large and small, old and new that systematically scrape and re-publish press content for commercial purposes without permission or payment.
Myth 4: Small publishers will fail
Everyone will have the right to waive their copyright, just as they can now. Currently though, even the large media corporations are not in a position to negotiate for a fair settlement with dominant players. The hope is that the Publisher’s Right might begin to address this asymmetry of power and make it easier for everyone to monetise and share fairly in the value of the content in the future.
Myth 5: A Publisher’s Right will stifle innovation
It’s a bit rich for tech companies and online platforms to talk about publishers wanting to suppress innovation in European digital news, when many of these benefit from the lack of clarity around rights. The presence of Google News as a free-to-use product, and in particular the deep integration of news into Google Search, are probably doing more than anything else to exclude the possibility of innovative products (a “Spotify for news” or “Netflix for news,” say) in the news market – as evidenced by the lack of such products appearing in the past ten years, in contrast to the explosion of innovation in other markets.
Myth 6: A Publisher’s Right will break the internet and place more restrictions on online activities
Nothing we are asking for would affect the way that our readers access our content or share links on social media or via apps and email to friends and family. Nor are we seeking to change the contractual arrangements with our journalists, photographers and other contributors.
Myth 7: An independent, free press that supports diversity and upholds democracy can survive indefinitely without funding
Obviously not; a free and independent press can only exist if there is adequate revenue to pay journalists, photographers and freelancers and to finance their training and security. Today, this prospect is increasingly reduced, due to declining print revenues that have not been matched by digital despite increased levels of readership. The reasons are complex but in a nutshell large search engines and other distributors make publishers’ content available for free to the user without re-investing in its production while making it difficult for publishers to charge users directly for that same content. The loss of advertising share is also significant as much of this now goes directly to search and social networks which attract large user groups which include users who are reading publishers’ content on their platforms. Finally unauthorised large-scale re-use of publishers’ content and a lack of legal clarity that would enable enforcement against large-scale infringements is a growing problem which needs reversing.
Myth 8: Consumers will suffer as they will no longer be able to find news and content anywhere, freely, on any platform or social media.
Publishers actively make their content available on all platforms, accessible on any device of choice. They recognise that consumers benefit from easy access to their content wherever they happen to be, whether this be through publishers’ own websites, or on social media or search pages or where multiple sources of content are aggregated. Not only do consumers benefit, but so do the hosts of publishers’ content who derive value and real benefits through increased traffic, advertising revenues or in some cases subscription fees.
Publishers recognise that search and social media platforms are important partners for news organisations and that their traffic brings benefits, although not on the exaggerated scale claimed by some. The current system does not recognise the value third parties get from publishers’ content. It is unsustainable for publishers to continue funding high-quality professional journalism without a fair share of the value others derive from their content.
Myth 9: Publishers are out-dated which is why they want the Publisher’s Right to protect their ‘old’ business models and make up for lost revenues
Publishers have made an important transition from analogue to digital over the past decade with high degrees of innovation and enormous growth in audience and popularity. They have embraced the digital age and count as many technical staff as editorial. What is out-dated, is the copyright regime that is no longer fit for purpose for the digital age.
Myth 10: The Publisher’s Right is a new right and publishers are being given special treatment
A publisher’s right will be similar to the rights already enjoyed by broadcasters, music and film producers whose finished works are copyrighted in their entirety. This is what the publishers are asking for too.
By the way, since 1991 computer programs have benefited from full copyright protection at EU level. Furthermore, it’s the companies, whose employees create these programs, which own all the rights to the programs, and who have full exclusive control over how they are managed and enforced, just like film producers, or broadcasters.
IN MORE DETAIL
Did you know that publishers do not currently have their own copyright under EU law? Of course the articles, still images or literary works that publishers make available are protected individually, but in the digital age this raises problems of legal clarity, management and enforcement making the copyright regime for press publishers quite simply out of date if they are to manage their copyrights efficiently in future, and continue to invest in the production cycle of professionally produced editorial content. This is why publishers are asking the European Commission to add publishers to the list of rightsholders at EU level.
In the analogue age, protection for what was published daily, weekly or monthly in print via the authors’ rights was easier to manage than today. For a start, the distribution chain was simpler with readers buying single copies, or publishers syndicating articles to other businesses including aggregators such as media monitoring organisations who sold ‘press cuttings’ services to other businesses. Also by publishing ‘printed’ editions, this meant that large-scale copying of printed content was rather impractical, licensing was easier to manage and any unauthorised copying was easier to control.
In this digital age large volumes of editorial content containing not only text and still images, but video, sound recordings and infographics are made available by via websites and apps on a 24/7 cycle and accessed by millions of consumers all over the world. This gives rise to huge opportunities for publishers to find new audiences and distribution partners. Indeed, publishers actively encourage their readers themselves to become distributors by offering simple means to link articles directly to social media, or to share with friends and family via apps or email. Unfortunately though, publishers’ content can be scraped systematically, copied and distributed by commercial organisations, but without permission in the blink of an eye, who then profit from displaying publishers’ content. It is clear that readers and advertisers value the editorial content from publishers that appears on third party websites, platforms and search engines. This brings enormous value to these third parties but not always to the publishers as increasingly we are seeing that they become a substitute for the publisher, especially when not only headlines but extracts summarising articles often with images, graphics or video appear on these sites in sufficiently attractive and comprehensive ways, that readers do not go to publishers’ own sites. This is the readers’ choice, and publishers want their readers to continue to have such choices of where and how they consume their content and to share and comment freely wherever they find it. But in order to continue to produce news, analysis, investigative reporting, features or eye-witness accounts from war zones or live events there has to be a fair value exchange between those who produce and those who distribute and they all need to be remunerated one way or another for the cycle to continue profitably and fairly.
A publisher’s right, would give copyright protection to publishers for their ‘published editions’ in their entirety. These ‘editions’ might be updated many times during a 24 hour cycle of publication. And in case you are wondering, a publisher’s right is not the same as the German ancillary right which covers only the use of snippets, only by search engines and aggregators. Nor is it the same as the Spanish law which provides for an exception to copyright for the use of snippets in return for mandatory payment. And it is certainly not a links tax as some would have you believe.
This new right would be a ‘neighbouring’ right, so called as it sits alongside the exclusive rights of the authors that would be unaffected by a publisher’s right and subject to negotiation and contract just as they are today.
A publisher’s right would afford publishers the same rights as already enjoyed by broadcasters, music and film producers whose finished works are copyrighted in their entirety.
By the way, since 1991, computer programs have benefited from full copyright protection at EU level. Furthermore, it’s the companies whose employees create these programs which own all the rights to the programs, and who have full exclusive control over how they are managed and enforced, just like film producers, or broadcasters. This is what the publishers are asking for too.
The EPC has been working in coalition with other rightholders’ associations and together we have created the website: www.publishersright.eu where you can find more information including FAQs in English, French, German and Spanish