Neighbouring Rights for Press in the Proposed EU Digital Single Market
At the Fordham Intellectual Property Law Conference this spring, Carlo Lavizzari [1] echoed a sentiment felt by many (if not all) press publishers currently operating in the European Union: in order to have the problem of a “value gap,” you have to first have a right in the first place. This “value gap” is one of the many focuses of the proposed Directive on Copyright in the Digital Single Market submitted by the European Commission [2] last fall and currently being negotiated. More notably, however, the proposal for EU copyright reform also introduces a new “neighbouring right” for press publishers, like Lavizzari, which purports to require a national right in every Member State to publishers to protect their digitally published news content.
Under the current EU copyright regime, copyright and neighbouring rights – the right of “reproduction” and “making available to the public,” specifically, are only available to authors and not publishers of press publications. One of the major publishing issues the EU is currently aiming to address is declining advertising revenues in the press sector. Many believe this decline is largely due to the rise of news aggregators, such as Yahoo! News and Google, who pull third party news content to one location which is widely accessible to viewers.
In September 2016, the European Commission announced an agenda for a Digital Single Market across the EU. The proposal included legislative and non-legislative initiatives that aim to provide EU citizens with the free movement of digital services and goods. These regulations target reform in several areas, including media, privacy, portability and copyright reform. In particular, there was a proposal for a Directive on copyright in the Digital Single Market. The proposed Directive on copyright includes several provisions related to reform moving toward a Digital Single Market, including a key provision which attempts to combat the issue of declining revenue and proposes neighbouring rights provision for press publishers which would require member states to provide publishers of press publications with rights to control the reproduction and making available to the public rights that are currently only available to authors and would last for 20 years.[3] This right would further scrutinize the use of content snippets online, which are often used in link previews generated by news aggregators or social media sites linking out to news articles.
There has been much criticism surrounding the proposed reform from scholars as well as industry leaders and politicians. Many fear that granting a neighbouring right through legislative action would aim to remedy economic losses instead of fostering creativity and author investment. While the creativity and protecting the author are at the root of copyright law, there is a public policy argument that needs to be considered in whether the proposed Directive should include a neighbouring right for press publishers: the continuation and impact of news reporting on our political systems, the global economy and society. The press functions as a liaison for information the public, acts as a check on Government transparency and brings important issues of public concern to light. To continue its functional role in society and politics, the industry must be able to keep up with technological innovation. If press publishers are not given an opportunity to compete in the digital age, the public will suffer equally if not greater than the authors and news aggregators.
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