Neighbouring rights for publishers: are national and (possible) EU initiatives lawful?

... or, in alternative,
to introduce an EU-wide neighbouring right
for publishers

Over the past few years debate has ensued at the level of EU Member States and the EU 

alike on how to address declining revenues in the press publishing sector. Although this is not a new phenomenon (in some European countries newspaper circulation has been in decline since the 1950s, in parallel with the advent of television), since 2000 newspaper advertising sales in Europe have fallen across the board. This data is in line with what has also occurred in the US where, according to the Pew Research Center, from 2013 to 2014 newspapers’ annual overall revenues have fallen from approximately $46m to approximately $20m.

Some have indicated the internet, notably news aggregation services (ie aggregators of syndicated web content in one location, an example being Google News), as primarily responsible for this phenomenon. According to two studies by the Iowa University and ETH and Boston University respectively, not only are news aggregators unlikely to have complementary effects on the number of visits received by newspapers' homepages, but rather appear to have a substitution effect, which is said to have contributed to declining online traffic.

Possible solutions to tackle this phenomenon have been discussed in a number of EU Member States. These have resulted in either the conclusion of agreements between Google and local press publishers (Belgium, France, Italy) or the adoption of legislative initiatives in relation to news content (Germany, Spain). Currently also the EU Commission is considering whether a neighbouring right for publishers (come to be known as ‘ancillary copyright’) – whether in the press sector alone or also other sectors – should be proposed for adoption at the EU level.

Readers may be interested in this new article of mine, forthcoming in the International Review of Intellectual Property and Competition Law, in which I discuss: 

1. the compatibility with EU law of national legislative initiatives (Germany and Spain) that have resulted in the creation of sui generis rights for press publishers, and 
2. whether a neighbouring right for publishers may be adopted at the EU level and, if so, what changes of the copyright acquis are required to this end. 

In my piece I do not discuss the merits of introducing a neighbouring right for publishers as such, but solely its legal feasibility.

Following an overview of recent national developments and legislative initiatives in the press sector and current discussion at the EU level, the analysis consists of two parts. 

The first part will focus on the compatibility of national rights for press publishers with the current acquis in the area of copyright – notably the InfoSoc Directive and the Rental and Lending Rights Directive. By considering relevant case law of the Court of Justice of the European Union (CJEU), it will recall that the InfoSoc Directive intended to achieve a broad harmonisation of national copyright laws. 

In Svensson the CJEU clarified that, by adopting the InfoSoc Directive, the EU legislature deprived Member States of the freedom to broaden the scope of relevant economic rights. In Reprobel the CJEU held that the term ‘rightholders’ in the InfoSoc Directive does not include ‘publishers’. From a combined reading of Svensson and Reprobel, it follows that publishers cannot be granted any rights under the InfoSoc Directive. This is not only true in the copyright area, but also in relation to neighbouring rights. While C More suggests that Member States can broaden the scope of the neighbouring rights harmonised in the Rental and Lending Rights Directive (including in relation to communication to the public), this decision does not also suggest that Member States are free to add new categories of rightholders in addition to those indicated in that directive.

The second part considers the possibility of adopting a neighbouring right for publishers at the EU level. In particular it suggests that to this end the wording of both the InfoSoc Directive and Rental and Lending Rights Directive should be amended. In relation to the InfoSoc Directive, this part also considers Article 5(3)(d) of the InfoSoc Directive in light of Article 10(1) of the Berne Convention and the apparent mandatory nature of the exception or limitation for quotation. It considers the CJEU decision in Painer, and concludes that, even assuming that the InfoSoc Directive is incompatible with the Berne Convention in respect of Article 10(1) thereof, the exception or limitation for quotation would not cover the reproduction (and possible subsequent communication/making available to the public and distribution) of extracts of third-party works or other subject-matter protected by neighbouring rights where such reproduction is not also accompanied by commentary or criticism.

The contribution concludes that, while national initiatives that have resulted in the adoption of sui generis rights for press publishers are likely incompatible with EU law, a similar initiative at the EU level might be feasible and achieved by amending the InfoSoc Directive and the Rental and Lending Rights Directive.

You can access my article on SSRN here.

And here are the PowerPoint slides I made for a talk on the topic of my article.

[Originally published on The IPKat on 21 June 2016]