Martin Kretschmer, Séverine Dusollier, Christophe Geiger, and P. Bernt Hugenholtz
The European Commission consulted between March 23 and June 15, 2016 on the role of publishers in the copyright value chain. This response by the European Copyright Society (1) analyses why an intervention creating a new neighbouring right for publishers is being considered in the wake of recent decisions by the CJEU in Reprobel (2015), and the German BGH (2016) in Verlegeranteil; (2) examines the rationale for neighbouring rights; (3) advises against double layering of rights; (4) assesses the implications of a neighbouring right for publishers for “open access” policies; and (5) identifies regulatory design flaws in the introduction of an ancillary right for press publishers in Germany (2013) and Spain (2014). In conclusion it is argued that value generation in itself is not a good case for intellectual property protection, and that the onus of proof needs to lie with the proponents of a new right. They need to show what the costs are, who will carry them, that the costs are necessary and proportionate, and provide verifiable evidence.
This Opinion has been accepted for publication by the European Intellectual Property Review [E.I.P.R.] 36(10): 591-595 (September 2016). It is also available on SSRN.