Implementing the new EU press publishers’ right

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the new exclusive right granted to EU press publishers by the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 15, authored by Timothy Vollmer, Teresa Nobre and Dimitar Dimitrov.

What is at issue in Article 15?

Article 15 establishes a new right for press publishers that allows them to control the online use of their press publications by information society service providers. Article 15 is problematic because: 1) protects press publications, even if they do not fulfil the originality threshold required for copyright protection; 2) prevents the use of parts of press publications other than “very short extracts”; and 3) creates a new layer of exclusive rights on top of copyright.

Breaking down Article 15

Who can benefit from the right? Publishers of press publications established in the EU.

Which publications are protected? Press publications (collection composed mainly of literary works of a journalistic nature, but which can also include other works or other subject matter).

Which publications are not protected? Press publications first published before 6 June 2019; scientific publications; websites such as blogs.

What rights are granted to press publishers? Reproduction and making available to the public press publications.

Which uses are affected by the new right? Online uses by information society service providers (as defined in Directive (EU) 2015/1535).

Which uses are not affected by the new right? Uses of individual words and very short extracts; hyperlinking; private and non-commercial uses by individuals; uses permitted by copyright exceptions; uses permitted by non-exclusive licenses; use of public domain works; use of mere facts reported in press publications.

How long does the right last? 2 years (calculated from January 1 of the year following publication).

How to deal with Article 15?

Implement article 15. In countries where there is no political willingness to take full advantage of the policy space that is available under the existing EU laws, but only to do what is requested by article 15, one should advocate for the best possible implementation of article 15, which is a version that:

  • Adopts an open-ended definition of “very short extracts”, which supports a floor, not a ceiling, with regard to length/amount of content this will cover
  • Makes all existing copyright exceptions and limitations applicable to the new right
  • Clarifies that other exemptions only mentioned in recitals (facts, blogs) are not subject to the new right

Move beyond article 15. A progressive implementation that upholds access to information for users while at the same time provides a realistic opportunity for press publishers would be for Member States to make it clear that press publishers are permitted to waive their new right.

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