Sleepwalking towards a perpetual (news?) publishers’ right in online publications

Press publisher in need of help?

The IPKat has just received and is delighted to host the following reflection by Professor Lionel Bently (University of Cambridge) on the state of the debate around the proposed EU press publishers’ right.

Here’s what Professor Bently (who wishes to thank Professors Jonathan Griffiths, Martin Kretschmer and Alexander Peukert) writes:

“As the Bulgarian Presidency of the Council pushes for a negotiating mandate with which to enter into ‘trialogue’ with the Commission and European Parliament to agree a single text of the proposed Directive on Copyright in the Digital Single Market, it is time to take a closer look at the content of, as opposed to the justifications for, the proposed press publishers’ right.

It seems the EU legislative institutions are close to adopting a press publishers’ right that accords perpetual protection to the publisher of any journal from anywhere in the world (including PRAVDA or The National Enquirer). This seems an odd way to preserve “a free and pluralist press” which makes “a fundamental contribution to public debate and the proper functioning of a democratic society” (as recital 32 claims to do) (see here).

There are plenty of questions of detail left unanswered by the various texts in circulation but, in this blog, I want to focus on three: the issues of subject matter, qualification and term.

Subject Matter: News Publications or All Publications?

Back in December 2016, in a letter to the UK IPO, a number of us highlighted problems with the definition of “press publication” in Article 2 of the Proposal. The Council Working Party has sought to clarify the definition, at least by converting the single paragraph into a generic clause coupled with one clarification and three conditions (see here). The generic clause is key: a press publication is “a collection composed mainly of literary works of a journalistic nature.” The clarification is that the collection may include “other works or subject matter”. The three conditions seem to be (i) that the collection is published under a “single title”; (ii) that the collection is intended to provide information; and (iii) that the collection is subject to editorial responsibility and control of a “service provider”.

My main worry over subject matter is that the definition in Article 2 is clearly broad enough to catch scientific and academic publications. That this is not the intention is clear from recital 33, which states that: “Periodical publications which are published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted to press publications under this Directive”. But a recital has no free-standing role, only an interpretive one. As Advocate-General Leger remarked: ‘although, as a general rule, the preamble of a directive gives the Court of Justice information about the legislature’s intention and provides it with useful guidelines for determining the meaning to be given to its provisions, if a concept stated in a recital is not given concrete expression in the body of the directive, or even conflicts with it, it is the content of the directive, in my view, which must predominate.’ (Case C-444/03, Meta Fackler, ECLI:EU:C:2005:64, [AG70])  That is, as Advocate General Mischo explained, while ‘the recitals in the preamble … cannot form the basis of a derogation from one of the directive’s express provisions.’ (Case C-162/97, Nilsson, ECLI:EU:C:1998:199, [AG 92]). There therefore needs to be some wording in the text of the Articles onto which a recital can latch. The reference to ‘service provider’ is unlikely to provide such a hook, given that academic and scientific publications are normally provided for remuneration (TFEU, Art 57 (defining ‘services’)). One possibility is that the requirement be a collection of works of “a journalistic nature” might provide the hook, but the term “journalism” has been broadly equated with the provision of information (see Case C-73/07, Satamedia (CJEU, Gr Ch) (at [61], defining ‘journalistic activities’ in Article 9 of Directive 95/46/EC, as activities where “their object is the disclosure to the public of information, opinions or ideas.”)

The Council Working Party may think it created a relevant hook by adding the condition that the collection “has the purpose of providing the general public with information related to news or other topics” (a phrase that may have found its inspiration in Art 1(a)(i) of the AVMS Directive, 2010). However, academics are increasingly told that their outputs should be available to the general public. For example, the Finch Report (2012) bemoaned the fact that “Most people outside the HE sector and large research-intensive companies, in public services, in the voluntary sector, in business and the professions, and members of the public at large -have yet to see the benefits that the online environment could bring in providing access to research and its results.” (see here pp 4-5). In the context of academic journals offering open access, it is going to be difficult to say that their purpose is not to provide information to “the general public”.

The problem could, of course, easily be fixed by moving the clause from recital 33 into the definition of the subject matter of the right in Article 2. It is a mystery why this has not been done.

Benefitting from protection

International Beneficiaries

The Proposal said nothing about how the right is to apply in international situations. It seems clear from the definition of press publication in Article 2 that for protection to arise, a collection must have been “published”. However, nothing is said about where such publication must be. Nor is there a definition of a publisher, nor an indication as to which publishers may benefit from the right. As a result, it seems, Member States would need to grant the right to any publication anywhere in the world, whatever the nationality, etc. of the publisher. Hence the bizarre result that, in the form presented in the Commission’s proposal, the new right will protect Russian and Iranian press publications as much as publications such as DIE WELT or THE GUARDIAN.

The Council text has introduced a reference to the rights being granted to press publications “published by publishers established in a Member State” (see Recital 32). Notably, the language “established in a Member State” is not typical of international or EU intellectual property law, where “nationality” and “residence” are more common terms (see eg Directive 2006/116, Art. 7). However, the concept of “establishment” is used in the TFEU, Art 54, and in secondary legislation on services such as the EU Services Directive 2006/123/EC and the Audiovisual Media Services Directive 2010/13/EU, where it is further defined in Article 2(3).  Although the use of the term , ‘established’ is more readily understood in relation to legal persons (companies, firms as defined under TFEU, Art 48), it has sometimes also been used – and is presumably intended - to apply to natural persons. Nevertheless, one may wonder how this passing reference in a recital is thought to be adequately reflected in the substance of the Articles.

A leaked compromise text being discussed by the negotiators within JURI (here) has added a condition (again) within recital 32 limiting the right to “press publications within the European Union” (emphasis added). As the definition of ‘press publication’ in Article 2 covers publications “in any media”, a concept of publication based on the circulation of manufactured copies (such as Berne, Art 3(3)) could not be appropriate. However, a concept of publication based on “accessibility” would add nothing in the online environment. Probably, the idea of a collection being published in the European Union would turn on a matter of targeting. However, none of this is elaborated, and, as with the Council amendment, much too much is being expected of a sub-clause inserted in a recital.

The question of qualification would not be hard to solve. One model would be Article 11 of the Database Directive, 96/9/EC, which looks to the nationality (etc) of the maker of the database, extends the possibility of protection to legal persons, and allows for a system of granting rights to makers based outside the EU (as the UK may soon be). Entitled ‘Beneficiaries of protection under the sui generis right’, it states:

 “1.   The right provided for in Article 7 shall apply to database whose makers or rightholders are nationals of a Member State or who have their habitual residence in the territory of the Community.

2.   Paragraph 1 shall also apply to companies and firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community; however, where such a company or firm has only its registered office in the territory of the Community, its operations must be genuinely linked on an ongoing basis with the economy of a Member State.

3.   Agreements extending the right provided for in Article 7 to databases made in third countries and falling outside the provisions of paragraphs 1 and 2 shall be concluded by the Council acting on a proposal from the Commission. The term of any protection extended to databases by virtue of that procedure shall not exceed that available pursuant to Article 10).”

Any such solution should – as with the exclusion of scientific and academic publications -  be incorporated in the substance of the Directive.

Even longer than a cat's life?

Term: Perpetual Protection?

Turning to the term of protection, the initial proposal stated that the rights “shall expire 20 years after the publication of the press publication.” The Council is now working with a period of 1 year, and the JURI Committee has, if rumours are to be believed, been discussing a 5 year term (here). Whatever the merits of particular 20, 5 or 1 year terms, the question arises: will the proposed text realise these limits?

Recall that the subject matter is “a collection”, which might exist in print copy or online. Moreover, there is no threshold requirement (e.g. that the collection must be the result of new substantial investment) or even a requirement that the collection must comprise previously unpublished material.

With print versions, it will be easy to identify when the collection was published and thus when the term will lapse. However, the proposed right will also apply to online collections which are “regularly updated” (Proposal Art 2). Every time new material is added to old, a new collection is published comprising the combined material, and a new (20, 5 or) 1 year term arises. It will only be when a publisher stops adding material that the fixed term will effectively start to run.

This problem could be avoided in a number of ways. The most obvious would be to provide that no rights will arise in any part of a press publication to the extent that has previously been published.

Conclusion

To date, a great deal of time has been spent debating the desirability of the proposed press publishers’ right, in particular the choice between it and a presumption (the preference of the draft JURI report here). Indeed, only three weeks ago, over 200 academics signed a letter opposing the proposal. (here) Nevertheless, the EU institutions seem to be moving towards adoption of the Directive, with the right intact.

Although the Council Working Party has certainly improved the quality and clarity of the drafting, it has not fixed a host of fundamental problems with the proposal. If the EU legislature is to persist with this wrong-headed proposal, attention needs to be focussed on fixing these failings. I have highlighted three such problems here, and explained how they could easily be fixed. The fact that they have not been properly addressed shows that this proposal is not nearly ready to move forward. COREPER should take note.”