Copyright in the Digital Single Market. Analysis and Implementation of the New Directive. Introducing the new press publishers’ right. Issue 8

As a first measure “achieve a well-functioning marketplace for copyright” the DSM Directive mentions “rights in publications”. These are, on the one hand, the much disputed “protection of press publications concerning online uses” (Art. 15) and, on the other hand, the less disputed “claims for fair compensation” (Art. 16).

Claims for faircompensation
In the light of the Reprobel judgment (1), the European legislator expressly included in the DSM Directive the possibility for Member States to provide that where an author has transferred or licensed a right to a publisher, such transfer or license constitutes a sufficient legal basis for the publisher to be entitled to a share of the compensation paid for uses of the work made in the context of an exception or limitation to the right transferred or licensed (2).

After the Act of 22 December 2016, this clarification is no longer very relevant for Belgium (3).

Online uses of press publications
The European legislator has introduced a new neighbouring right with the aim of guaranteeing a free and pluralistic press (4).

Publishers of press publications established in a Member State will  be granted an exclusive right of reproduction and making available to the public on demand, to be exercised vis-à-vis information society service providers. Article 15.1 of the DSM Directive specifies that these rights do not apply to private or non-commercial use by individual users, nor to acts of hyperlinking, nor to the use of individual words or very short extracts (6). Furthermore, they should be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in Directive 2001/29, in particular the exception in the case of quotations for purposes such as criticism or review (6). These rights expire two years after the publication of the press publication (art. 15.4).

The concept of press publications covers only journalistic publications published in the media (whatever they may be, including on paper) in the context of an economic activity which constitutes a provision of services under Union law, such as, for example, daily newspapers, general or specialised weekly or monthly magazines, including subscription-based magazines, and news websites. It does not, however, cover periodical publications, published for scientific or academic purposes (such as scientific journals), or websites that provide information as part of an activity which is not carried out under the initiative, editorial responsibility and control of a service provider, such as a news publisher (such as blogs) (7).

These rights exist independently of, and without prejudice to, copyright and related rights in protected works and other subject matters incorporated in a press publication (Section 15.2) (8).

Member States must provide for the allocation to the authors of works incorporated in the press publication of an appropriate share of the revenues which press publishers receive from information society service providers for the use of their press publications (Article 15.5).

Unless this new right is declared inalienable, will it be effective? France is the first Member State to have transposed this new neighbouring right (9) and has opted for a right to which publishers can renounce (10). Google reacted promptly to this Act with a press release announcing its decision to only pick up content and thumbnails from publishers who allow it free of charge (11). This situation is reminiscent of the German situation, where a similar legislation was introduced before the adoption of the DSM Directive (12).

Spain, on the other hand, had opted for a right that press publishers could not renounce, without being more successful (13).

Maïlys Sahagun

1. C.J.U.E., 12 November 2015, C-572/13, EU:C:2015:750
2. Recital 60 of the DSM Directive even seems to be capable of wider application. See also the parliamentary question and answer along these lines : http://www.europarl.europa.eu/doceo/document/E-8-2018-004361_EN.html et http://www.europarl.europa.eu/doceo/document/E-8-2018-004361-ASW_EN.html.
3. Act of 22 December 2016 amending certain provisions of Book XI of the Economic Law Code, Belgian Gazette, 29 December 2016.
4. Recitals 54 and 55 of the DSM Directive.
5. The Directive therefore applies to the use of press publications in their entirety, but also in parts, and to the exclusion of “very short excerpts”. This last reservation must be interpreted in such a way as not to affect the effectiveness of the new Directive and not to undermine the investment of publishers (recital 58 of the DSM Directive).
6. And the rights granted to press publishers should not extend to mere facts reported in press publications (recital 57 of the DSM Directive).
7. Recital 56 of the DSM Directive.
8. Recital 59 of the DSM Directive.
9. Act No. 2019-775 of 24 July 2019 creating a neighbouring right for the benefit of press agencies and press publishers.
10. See Art. L. 218-3.
11. https://france.googleblog.com/2019/09/comment-nous-respectons-le-droit-dauteur.html . Facebook recently followed Google’s example : https://www.thelocal.fr/20191026/facebook-refuses-to-pay-french-media-for-links
12.  In the absence of prior notification to the European Commission in accordance with Directive 98/34/EC, this German Act was declared inapplicable by the Court of Justice of the European Union, see C.J.U.E., 12 September 2019, C-299/17, ECLI:EU:C:2019:716.
13. See i.a. https://europeancopyrightsocietydotorg.files.wordpress.com/2015/12/ecs- opinion-on-eu-copyright-reform-def.pdf , p. 6.