After several failed national attempts (notably in Germany and Spain) to secure remuneration for press publishers for the licensing of press contents by aggregation services and search engines, the proposed Directive on Copyright in the Digital Single Market grants press publishers an exclusive related right that would allow them to license (or prohibit) digital uses of their press publications for a period of 20 years. This proposal completely upsets the delicate (and necessary) balance between the protection of copyright and the non-protection of information. It is potentially contrary to international obligations (such as Art.10(1) of the Berne Convention that permits free press summaries) and inconsistent with CJEU doctrine concluding that linking to contents freely available online does not qualify as an act of communication to the public (Svensson, Bestwater, C-More Entertainment, GS Media). Because of the fundamental role that news and information play in a democratic society, and especially on the internet, any copyright rule affecting news must be carefully balanced. An exclusive right to control (authorize, prohibit or exclusively license) press contents online may have negative effects for competition in the market and for the development of the information society. As proposed, it also fails to achieve its (misguided) purpose to secure fair remuneration for the value of information, and will likely have detrimental effects for authors. If we want to “ensure quality journalism and citizen’s access to information” a related right for press publishers is not the way to go!
This Working Paper is a lightly edited transcript of the lecture provided by Professor Raquel Xalabarder on 2 November 2016 at the University of Glasgow as part of the CREATe Public Lecture Series 2016. A video of the lecture and Raquel’s slides are available from the event resource page.