©-LAW

The new Irish AG, Gerard Hogan One of the most controversial proposals in the  draft Directive on copyright in the Digital Single Market  is Article 11  [Katposts  here ] , this being a provision that would introduce at the EU level a new related right in favour of press publishers. The EU proposal follows legislation to a similar effect, which was adopted in Germany and Spain, though with different mechanisms: a new related right in the former, and an amendment to the quotation exception in the latter. A few years ago (in 2013), Germany was in fact the first country in Europe to introduce a new related right in favour of press publishers. This is aimed at giving them control over third-party unlicensed use of their content. Legislation was adopted in an economic context - that of the press sector in Europe - of constantly declining revenue.  Sections 87f-h  of the German Copyright Act ( UrhG ) provide for a right of press publish...

As  reported  by this blog a few months ago, the Court of Justice of the European Union (CJEU) has been required to address issues of lawfulness - notably enforceability - of the German neighbouring right for press publishers. Why a CJEU reference? Back in May, in fact, the Landgericht Berlin decided  [ here ]  to stay the proceedings in the litigation between the collecting society responsible for collecting royalties in favour of publishers (VG Media) and Google, and make a reference for a preliminary ruling to the CJEU.  The purpose of the reference is to receive guidance on the actual enforceability of the German press publishers' right.  Directive 98/34  requires in fact Member States to notify the European Commission of any  “technical regulations” that they intend to adopt. This is to allow the Commission to assess their impact on the internal market. Apparently German Government  failed to notif...

This morning the  Bundesgerichtshof (BGH, the German Federal Court of Justice) has referred not one - but two - copyright cases to the Court of Justice of the European Union (CJEU) for guidance, respectively, on: To what extent EU copyright allows  sampling , ie the taking of part of a sound recording for re-use as an instrument or sound recording in a different song or piece  [readers with an interest in hip-hop will know that sampling in this genre is very frequent and in the US has caused quite a few IP-related headaches to the likes of  Kanye West  and  Jay Z ] ; and What role fundamental rights play in the copyright sphere. More specifically, what is the relationship between copyright protection, freedom of the press, and freedom of information? WARNING: I do not speak German, and have tried to make a sense of these new cases by reading the relevant press releases; please let me know if I have misunderstood anything. Sampling, free use, ...

Readers will  remember  that back in 2013 Germany adopted a new neighbouring right over news content and in favour of press publishers ( Leistungsschutzrecht für Presseverlege,  LSR ). The newly created  sections  87f, 87g and 87h of the German Copyright Act provide for the exclusive right of press publishers to exploit their contents commercially for one year, thus preventing search engines and news aggregators from  displaying excerpts from newspaper articles without paying a fee. The rationale The rationale underlying this legislative initiative was that of addressing  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 occur...