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,  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).]