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A Waivable Press Publishers Right Would Be Less of a Disaster

For the entire duration of the current EU copyright reform we have advocated that the press publishers right be deleted. Publishers already benefit greatly from the copyrights they have in their content, and don’t need an additional exclusive right to protect or exploit those rights. As is clear from past experiments with the right in Germany and Spain, an additional right for press publishers will not support quality journalism, increase the diversity of media content, or grow the digital single market. Instead, it will negatively affect access to information and the ability for publishers to share using the platforms, technologies, and terms beneficial to them. The existing problem can be addressed by observing a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them.

But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.

The waivable press publishers right

Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU.

One of the worst aspects of Article 11 is that it applies whether publishers want it or not. As written by Creative Commons recently, the press publishers right “would undermine the intention of authors who wish to share without additional strings attached, such as creators who want to share works under open licenses […] forcing publishers who use CC to accept additional unwaivable rights to receive payment violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish.”

The new press publishers right and commons

CC wrote that if including some version of Article 11 is unavoidable, it should include protections for works under open licenses, or in the public domain. For instance, the Council text included a provision that said, “When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights […] may not be invoked to prohibit the use by other authorised users [or] works or other subject-matter whose protection has expired.”

The concerns of publishers

Small and medium-sized publisher are worried about the effects the unwaivable press publishers right will have on their operations too. In October the European Innovative Media Publishers sent a letter to the trilogue negotiators outlining how they will be harmed if Article 11 is adopted. They’ve also launched a petition that calls for the deletion of Article 11, or at least the introduction of mechanisms that would “reduce some of the collateral damage to small and medium-sized publishers.” The signatories believe that having their press publications incorporated into news aggregators and other online search tools obviously helps drive traffic to their content, without the need for requiring other payments from aggregators or news agencies. From their petition:

The introduction of a neighbouring right in Germany and Spain make it harder for us to grow online, reach new audiences and develop new markets. They create new barriers for entry for publishers to develop online. In Spain, we are even deprived of control over our own content, and obliged to charge via a collecting society, whether we like it or not. […]

We adamantly believe that any publisher’s right must give publishers the choice to consent to the sharing of their content online. Aggregators, search engines and other online services drive valuable traffic to publishers’ websites, particularly smaller or local ones; and this traffic referral creates huge opportunities to generate revenue through advertising.

Thus, one way to reduce the collateral damage of Article 11 is to make the press publishers right waivable. Even Google, which has basically threatened to shutter Google News throughout Europe if Article 11 passes, is now advocating for the ability of publishers to waive the press publishers right should it make its way into the compromise version of the directive. Google says, “the copyright directive should give all publishers the right to control their own business models and destiny by giving them the choice to waive the need for a commercial license for their content.”

A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).
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