New study explores possible effects of counterproductive press publisher’s right

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At the end of December we published a position paper on the Commission’s proposal to introduce new rights in publications available to press publishers for control over the digital use of their content. The right would apply for 20 years, and would also apply retroactively to content already published. From our perspective, the press publishers’ right will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders. For this reason we argue that Article 11 (“Protection of press publications concerning digital uses”) should be removed from the proposal.

Today, OpenForum Europe published a paper written by Prof. dr. Mireille M.M. van Eechoud which analyses the press publisher’s right (they call it “PIP”, for short). The study examines the justifications for the proposed press publisher’s right, and assesses how it would fit in the EU copyright framework. (Read full paper here)

The report echoes the skepticism (and dearth of evidence) about whether an additional right would even be able to address the challenges faced by press publishers today:

Neither the Impact Assessment nor the Commission Communication explains in what way the introduction of an additional layer of rights would facilitate the clearing of rights for online uses and reduce transaction costs for all stakeholders concerned. The claims that are made about the causal relationship between the introduction of a publisher’s intellectual property right, increasing revenues and a sustainable press leading to media diversity, are not substantiated with data.

Also covered in the paper is an analysis of the implications for freedom of expression:

The EC itself frames the need for PIP on the public interest in a sustainable press: increased intellectual property protection will safeguard a free and pluralist press, so the argument runs … The EC ignores the flipside of the coin, which is the fact that the creation of exclusive new rights in information for publishers necessarily interferes with the freedom of expression of others.

The report questions the placement of the new right within the already-crowded intellectual property ecosystem:

PIP would go beyond existing copyright and database rights … The reproduction right would have a wider operation for the publisher’s right than it does for copyright, because there is no built-in restriction equivalent to the originality requirement. The publisher’s right would also be broader than the sui generis database right. It would set no substantial investment requirement, and the reproduction right would require users to seek permission for the smallest uses (unless they can rely on an exception).

Finally, the paper examines the various situations in which some rights holders and publishers do not (or should not) wish to leverage the right, but which would apply to these works anyway:

With respect to publicly funded information and research, there seems to be no need to create new rights to incentivize production … The proposal does not explicitly limit the beneficiaries to private sector entities, unless we are to understand the notion of ‘publisher’ or ‘service provider’ as such … If government bodies, or public sector bodies more broadly, can be ‘publishers’ within the meaning of the proposal, to what extent they will actually have rights turns primarily on whether periodicals contain texts of a ‘journalistic’ nature.”

This extensive study reconfirms the need for the EU legislator to remove this provision from the copyright reform proposal. It’s clear that the Commission’s proposal to introduce a right for press publishers is poorly aligned to the objective of modernizing the EU copyright framework and adapting it to the challenges of a fast-evolving digital environment.

 

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