The Center for
International Intellectual Property Studies (CEIPI) which is part of my
alma mater, the University of Strasbourg, published on November 28, 2016 its Opinion
on the European Commission’s copyright reform proposal (the Opinion). The
Opinion, which was written by Professor
Christophe Geiger, PhD candidate Oleksandr Bulayenko, and Senior Researcher
Giancarlo
Frosio, focuses on the introduction of neighbouring rights for press
publishers in EU law. It argues that the recent Directive proposal would make
it harder to reach the Digital Single market. The authors of the Opinion
conclude by recommending “to refrain from advancing this legislative action.” The
CEIPI sent its Opinion to the EU Commission on December 2.
What Are the Commission’s
Proposals re Neighbouring Rignts??
The Commission adopted in May 2015 its Digital Single
Market Strategy, which goal is to reduce the differences between the copyright
regimes of the Member States and to allow works to be widely accessed online across
the EU.
Following a consultation
on the role of publishers in the copyright value chain, which the European
Commission had launched on March 23, 2016, the Commission introduced on
September 14, 2016 its Proposal
for a Directive of the European Parliament and of the Council on Copyright in
the Digital Single Market (the Proposal).
The Opinion concentrates on the neighboring rights that the
Proposal would give to publishers. The Impact
Assessment on the modernization of EU copyright rules, also published by
the Commission on September 14, provides a helpful overview of the rights
provided to the publishers in various member States (see Part 3/3, p. 189-192).
The Opinion cites the example of the German law on Authors’ and
Neighbouring Rights which gives some exclusive neighbouring rights to press publishers,
such as making available for commercial purpose any publications and parts
thereof. This, as noted in the Opinion, takes “only individual words or the
smallest text excerpts” out of the scope of the law (Opinion p. 6). A Spanish
law provides press publishers the right to be remunerated for making available
online non-significant fragments of their publications. The Opinion notes that
the legality of this right has been questioned, for example here (Opinion
p. 6).
The Opinion notes that they are tensions between press
publishers and online service providers in several countries, Belgium, France
and Italy. Such tensions have been addressed by signing agreements, not by
enacting new laws. For instance, a financial fund
financed by Google has been put in place in France. It is intended to provide
financial support for projects of publishers of political and general
information sites. A similar Italian fund is also financed by Google, which
also finances the EU Digital
News Initiative (Opinion p. 7).
Article 11(1) of the Proposal directs Member States to
provide publishers of press publications with the neighboring rights provided
for in Article 2 and Article 3(2) of Directive
2001/29/EC for the digital use of their press publications. This means that
the “publisher’s neignboring rights would encompass the right of reproduction
and making available to the public for digital uses” (Opinion p. 11).
Under Article 12 of the Proposal, Member States could
provide a publisher, to whom an author has transferred or licensed a right, the
right to share the compensation for the uses of the work made under an
exception or limitation to the transferred or licensed right.
The authors of the Opinion note that the combination of
these two articles may give publishers two revenue streams, if both copyright
and neighboring rights have the same exceptions and limitations: the publishers
would receive a revenue both as holders of the neighbouring rights and as transferees or licensees of
authors’rights (Opinion p. 12).
The Proposal Would Make
it Harder to Reach the Digital Single Market
Member States have each their own copyright and neighbouring
rights laws. The Opinion states that:
“the Impact Assessment fails to
explain how an additional layer of 28 national rights might promote the Digital
Single Market. Rather the proposal poses further challenges related to the
territoriality of rights and their fragmentation” (Opinion p. 8).
This is a concern, especially since the Proposal “does not
pre-empt the re-emergence of new national legislation extending rights of press
publishers. Member States still remain free to create other neighbouring rights
in their national law” (Opinion p. 8). The authors point out that our own
Eleonora Rosati has questioned
the lawfulness under EU law of allowing Member States to create neighbouring
rights.
The authors of the Opinion are also concerned by the facts
that the exceptions and limitations to authors’ rights, which are currently
applicable to those rights in the Member States, may not be equally applied to
the neighbouring rights. For instance, national laws could regulate differently
when and if such exceptions can be overridden by contract or technical
protection measures (Opinion p. 9).
Allowing Member States to each create their own neighboring
rights and even expanding them could fragmentize the Digital Single Market, and
thus hurt it. The authors of the Opinion advocate instead for the enactment of
a unitary right (Opinion p. 9).
Proposal Would Reduce
the Economic Value of Creative Works
The authors of the Opinion argue that if more economic
actors can share the revenues of creative activities, the authors may lose part
of their revenue, as the financial pie is not getting bigger even while more
guests are invited to partake. The “pie theory” explains that “new royalties
stemming from neighbouring rights are going to be distributed at the expense of
those receiving royalties from authors rights today” (Opinion p. 11, citing
this recent article
by Joseph Pomianowski).
There is a chance that publishers from other sectors than
the press, such as music publishers, would request neighbouring rights, which
could further reduce authors’revenue (Opinion p. 9). Granting rights to more
actors “will decrease the economic value of each rights” (Opinion p. 10). However,
the “pie” is not getting bigger (Opinion p. 12).
No Causal Link Between
Publishers’ Revenues and Granting them Neighbouring Rights
Publishers generally hold the economic rights of authors,
under various legal schemes, such as contract or work for hire (Opinion p. 13).
Not every publisher believes it must have neighboring rights, and some have
even argued
that they are not necessary. Even if publishers are sometimes called into court
if a work has been infringed, granting them neighbouring rights “will not
change the burden of proof for proving ownership of authors’ rights in court” (Opinion
p. 14). For these reasons, there is no “causal link supporting the introduction
of new rights” (Opinion p. 14).
The Scope of
Protection is Overbroad
The authors of the Opinion are troubled by the fact that the
Proposal “does not limit the subject matter to works and uses presently
protected by authors’ rights.” Even unoriginal works could be protected by
neighbouring rights (Opinion p. 16). Works from the public domain could be
protected as well, and works published under a public copyright licenses could
be restricted by such rights (Opinion p. 17). Restricting the public’s use of
works in the public domain “imping[es] greatly on freedom of expression and
democratization.” This would have repercussions on the ability of people of
lesser means to disseminate their speech and would instead favor big
corporations (Opinion p.17). The Authors also argue that the proposed term of
protection, 20 years, is “way too long” (Opinion p. 18).
The authors conclude that introducing neighbouring rights
for press publishers will create new EU copyright issues instead of solving
them.
The Opinion is a very interesting read, and this is both my
impartial blogger opinion and my hometown partial Alsatian opinion.
