Proposed press publishers’ right: a workable solution?
University of
Helsinki, Faculty of Law
Quality
journalism is more important than ever. By the same token, few would oppose legal
and economic conditions amenable to producing press content of high
journalistic standards. Achieving those conditions is also what the European Commission’s
proposal on Copyright in a Digital
Single Market seeks by proposing the creation of a related press
publishers’ right.
The proposal raises
various issues. Many of these issues have been elegantly addressed by other
scholars (e.g. C Geiger, O Bulayenko and G Frosio, [2017] EIPR 202) and are currently
under discussion by the EU legislator. In this blogpost, we highlight some
issues concerning the proposed related right that our article [which will be published as Advance Access here in a few weeks' time, and will be included in one of the next issues of JIPLP] discusses more
extensively. Most of these issues stem from the proposal’s definition of protected
subject-matter and exclusive rights in such a way that almost any reuse of news
content might appear infringing. To illustrate: reproducing and making
available to the public even minimal excerpts that would not qualify as
original or as the result of significant investment would be infringing under
the proposal.
Arguably, the
right as proposed could help press publishers protect and license news content
in which they have invested. At the same time, however, over-extensive protection
may unnecessarily threaten the various legitimate interests served by other
activities in which news content is discussed or reused. Not all these
activities threaten the incentives of press publishers. Moreover, it is unclear
if the related right would remedy imbalances in bargaining with online services.
Concerns about
rigid, broad protection could be alleviated by better taking into account the
diverse circumstances in which the proposed rights would apply. Protection
could require originality, while infringements could be limited to situations
where reuse of content is most problematic for press publishers’ incentives and
not justified by other legitimate interests. It is also worth considering
whether EU legislation allowing press publishers to rely on copyright in press
publications, as proposed in the Parliament, could resolve the issues
identified by the Commission satisfactorily and with fewer problems.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]
