NEIGHBOURING RIGHTS FOR PUBLISHERS:

ARE NATIONAL AND (POSSIBLE) EU SOLUTIONS LAWFUL?

Oxfirst Webinar, 17 June 2016

Eleonora Rosati

eleonora@e-lawnora.com@eLAWnora

Contents

• Whether national legislative initiatives are compatible with EU law• InfoSoc and Rental and Lending Rights Directive• CJEU case law

• Whether a neighbouring right for publishers may be adopted at the EU level and, if so, what changes are required

Are national legislative initiatives lawful?

National initiatives• Declining revenues in press sector … because of news aggregators?

• National responses• Private agreements between local press publishers and … Google

• Belgium (2012)• France (2013)• Italy (2016)

• Legislative initiatives • Germany (2013): a sui generis (waivable) right • Spain (2014): (unwaivable) fair remuneration right within quotation exception

A success?

National legislative solutions from EU perspective

• Have created a new category of initial rightholders, ie publishers = a category not expressly envisaged by InfoSoc Directive

• Have broadened the scope of the right of reproduction and communication to the public, by allowing publishers to control (and prevent) unauthorised provision of links to and small excerpts of relevant news content

Is this OK?

The objectives of the InfoSoc Directive

• Implementation of WIPO Internet Treaties into EU legal order

• Harmonisation of principal rights and related exceptions/limitations• Proper functioning of internal market (Recital 6)• Diverging national approaches to copyright and neighbouring rights would cause legal

uncertainties and lead to re-fragmentation of the internal market (Recital 7)• Also avoid inconsistent national responses to technological advancement (Recital 7)

CJEU case law seems to suggest: NO

Svensson (C-466/12, 13 February 2013)• Linking to lawful content freely accessible on website not within scope of

right of communication to public

• Member States cannot broaden scope of communication to public beyond InfoSoc Directive • Would otherwise defeat harmonising objectives of InfoSoc Directive• Same rationale appears applicable by analogy to other InfoSoc rights

If not by means of exclusive rights, can ‘ancillary copyright’ be OK as new neighbouring right?

C More (C-279/13, 26 March 2015) • Member States cannot grant holders of the making available right an exclusive

right as regards acts which could be classified as acts of communication to the public but which do not constitute acts of making available to the public

• However, they can broaden scope of neighbouring rights under Rental and Lending Rights Directive

The ‘acts’ covered by Rental and Lending Rights Directive can be broadened, but can new rightholders be created as well?

Reprobel (C-572/13, 12 November 2015)

• Publishers are not included in InfoSoc Directive among relevant rightholders: creation of this new category of rightholders not allowed

Conclusion

• From Svensson and C More it follows that: (1) in relation to copyright, right of communication to the public cannot be extended to

cover acts other than those mentioned by the InfoSoc Directive; (2) in relation to neighbouring rights, Member States may broaden the categories of

acts. However, it appears that – also by analogy with the Reprobel decision – the freedom of Member States in the area of neighbouring rights does not go as far as to suggest that Member States also have the freedom to create new categories of rightholders in respect of neighbouring rights

• Re-fragmentation of the internal market

Can a new EU neighbouring right be introduced?

… The DigitalSingle Market

Strategy(DSMS)

December developm

ents

Neighbouring right for publishers“The Commission has no plan to tax hyperlinks. We have no intention to ask people to pay for copyright when they simply share a hyperlink to content protected by copyright. Europeans share and post hyperlinks every day and they should remain free to do so. The Commission will look at the activities of different types of intermediaries in relation to copyright-protected content. This is a different issue. News aggregators, for example, are not only using hyperlinks but also extracts of articles and may gain revenue doing so.”

• Germany; Spain • Letter of press publishers to EU Commission (December 2015)• Public Consultation (23 March – 15 June 2016)

What is required

• Amending InfoSoc Directive and Rental and Lending Rights Directive to add publishers (whether just in press sector or also other sectors) among categories of relevant rightholders in both directives

• This inclusion necessary to allow the creation of new neighbouring right at the EU level but also (further to the C More decision) to allow Member States to possibly alter (ie broaden) its scope at the national level

Possible objection: a right of quotation?• Article 10bis Berne: “It shall be permissible to make quotations …”

• InfoSoc Directive implements WIPO Internet Treaties• Member States lost competence to give effect to Articles 1-21 Berne

• Article 5(3)(k) has optional exception

• Plus are we really speaking of quotations?• CJEU in Painer: “accompanied by comments or criticism”

Conclusion

• National initiatives may be contrary to EU law

• An EU-wide neighbouring right for publishers – whether in press sector alone or also other sectors – may be adopted by amending relevant directives, ie the InfoSoc Directive and Rental and Lending Rights Directive

• Whether this is desirable is a different issue …

Thanks for your attention

eleonora@e-lawnora.com@eLAWnora