This week we learned about a research study requested by the Legal Affairs committee regarding the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive on Copyright in the Digital Single Market. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs.
We are especially interested in the assessment of Article 11—the provision that would create new rights in press publications that would allow to press publishers to control digital uses of even the smallest snippets of their content. COMMUNIA has long advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.
The European Commission, which came up with this idea, has offered no data about how a new right would increase revenues to sustain a free and pluralist press.
On the other hand previous Academic research as well as statements from the media companies themselves confirm that Article 11 won’t accomplish its aims, and is a danger to access to news online. The independent analysis commissioned by JURI conforms this once again, which should finally put the nail in the coffin on the press publishers’ right. The report concludes:
There are real concerns surrounding the rather uncertain effects of the right, and many of the problems facing press publishers can be resolved by a much less controversial intervention. We therefore approve the proposal made in the draft JURI Opinion, namely that the press publishers’ right be abandoned and replaced with a presumption that press publishers are entitled to copyright/use rights in the contents of their publications. (p. 8)
The authors of the research take a look at instances where a press publishers’ right has already been implemented, such as Germany and Spain. They conduct interviews with stakeholders on the ground to analyse the implications and effects of the ancillary rights there.
Their research confirms that even if a press publishers right were able to generate revenue to support quality journalism (which there is no evidence to support), it would create other negative consequences to access to information and competition in the digital single market. It would add another right into the already complex thicket of IP rights regime in Europe, including the problematic sui generis database rights. These additional transaction costs borne by users and potential market entrants will inhibit the delivery of quality news, and inhibit innovation and investment in new technologies and services.
But essentially there is an easier and more effective way to promote the aims of quality journalism and the ability of press publishers to sustain their efforts without a new right. The report suggests that there should be a presumption that press publishers retain ownership of the content they share. This framing, which draws from Directive 2004/48/EC on the enforcement of intellectual property rights, already provides a robust legal framework for the protection of content without the negative aspects of introducing a new right.
The report also addresses the widely-criticised expansion of the press publishers’ right to include academic publications that was adopted by the European parliament’s by ITRE committee The analysis echoes our concerns that that such a move “could have serious negative implications for open access policies.” (p. 38)
As we and many others have pointed out, providing protection to academic publications (specifically excluded in the Commission’s original proposal) would mean that users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications. And any such new right to control and monetise use of snippets of academic articles would significantly limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances.
A final note on transparency. In her post on the report, MEP Felix Reda points out that there’s some confusion as to when (or if) this research will be presented to the Legal Affairs MEPs. She notes that the authors have been invited to share their research with the committee in session on the afternoon 21st November. he problem is that the whole exercise would be moot if JURI has already voted on their amendments to the Commission’s proposal (currently scheduled for the morning of 21st November). The Parliament should ensure that this research can be presented to the JURI members well in advance of the vote. What we don’t need is more research pushed down the memory hole.