The EU Digital Single Market and Publisher’s Rights: Protecting the Public Interest

“A free press is the unsleeping guardian of every other right that free men prize; it is the most dangerous foe of tyranny.” (Sir Winston Churchill)

Freedom of the press is one of the pillars of our democracy; investigative journalism keeps the system honest. Yet today the continued existence of a thriving and independent Fourth Estate is threatened as never before. With the migration of advertising revenues online, the traditional newspaper and news magazine is hurting, and shrinking. In the US, major newspapers like the Seattle Post-Intelligencer, the Cincinnati Post and the Pittsburgh Tribune-Review have closed their print editions, likely to never reappear. In Britain the Independent has gone exclusively online. Others, including a number in continental Europe, have closed (FT Deutschland) or have become thin, pale shadows of their previous existence. There is no easy remedy as ad revenues, which in the past sustained print journalism, have moved online.

Newspapers and journals have fought back by developing digital editions, with advertising, and in some cases putting content behind paywalls. However in many cases the bulk of online ad revenues are not going to those who generate the content but rather to commercial content aggregators who use snippets of content—headlines, key paragraphs, photos and images—lifted from news publications and organized into categories to attract readers. The publishers argue that “large search engines and other distributors make publishers’ content available for free to the user without re-investing in its production while making it difficult for publishers to charge users directly for that same content. The loss of advertising share is also significant as much of this now goes directly to search and social networks which attract large user groups which include users who are reading publishers’ content on their platforms”. Among the most prominent of the aggregators, but by no means the only one, is Google News. It generally doesn’t pay for content, but nevertheless monetizes it through ads on its search platform (although not specifically on Google News). For news publishers, not being able to control the distribution of their content is a problem.

In Europe, work is proceeding on a number of fronts to develop a unified application of copyright and content distribution, a Digital Single Market (DSM), within the EU. Among the many elements being examined as the Commission moves to develop its DSM framework are revisions to the Copyright Directive, and among these is a proposal, unveiled on September 14, to provide news publishers with a publisher’s right.

What is a publisher’s right and what would it do? It would give news publishers copyright over their finished product (e.g. a daily edition of a newspaper, including the digital edition) and provide them with copyright protection similar to that enjoyed by music, film and software program producers who have the right to copyright finished works in their entirety. It will not however establish any new rights for news publications that are not already enjoyed by authors, nor will it undermine the existing copyright of individual authors. As a “neighbouring right”, it would exist side by side with but not supplant author’s rights. And why is a publisher’s right important? According to the publishers, it would “give publishers the legal right to decide on how and where their content is made available. Every publisher would have the right to waive this right, or to manage it exclusively or collectively – but, importantly, it would be their choice”

In countries such as the US and UK where journalists working for a publisher are considered employees and copyright can be assigned to publishers (or the work of journalists can be considered a “work for hire”) the issue of publisher’s rights is moot, but in continental Europe there is a gap. Both Germany and Spain sought to address this gap by establishing publisher’s rights through national legislation but these initiatives failed to resolve the issue of equitable revenue-sharing. Some have argued that attempts to give publishers the right to control the use of their content would amount to a “snippet tax” (aka “Google tax”) on the aggregators, or a “links tax” on consumers. Others argue that any form of pay for display will end up breaking the Internet.

The publishers see it differently, and with reason. The establishment of a publisher’s right will have no negative impact on consumers, who will still be free and able to link to content on social media or via apps or email. There will be no “links tax”. What a publisher’s right will do is to put control of their content—and thus some bargaining leverage–into the hands of the news publishers, who will be able to exercise it as they wish. Once they can assert their rights over their material, some publishers may seek to negotiate revenue-sharing arrangements with the aggregators for access to news content while others may continue to provide access for no payment if they decide it is to their advantage to do so. Under either scenario, there is no “snippet tax”. At the end of the day, the objective is to enhance the ability of publishers to continue to create content despite drastically declining revenues from print advertising.

While the Commission has proposed a publisher’s right, there is a long way to go before it is accepted. One of the issues is the duration of the right, if granted. Suggestions vary from two to three years to fifty years. The Commission is proposing a twenty year period of protection, which seems to be an adequate compromise, protecting the useful life of a news item without extending protection excessively. There are also other issues in play, such as a proposed carve-out from the publisher’s right when it comes to academic and scientific journals. If a publisher’s right comes into force, an exemption for academic, scientific and technical journals seems unfair and hard to justify, as Kevin Madigan has written in his Mr. Copyright blog.

In deciding whether or not there should be a neighbouring or ancillary right for publishers to control access to the finished journalistic product, consider that the final edited product is far more than just the sum of its component parts. The publisher creates a new finished work that is edited and curated, designed and marketed. There is a brand component and a market niche that is relevant to the whole product beyond the articles and photographs contained in an individual edition. As a matter of equity, that final finished product deserves protection no less than the finished product produced by broadcasters or music and film producers.

Important as equity and fairness are with regard to publisher’s copyright, the ultimate public policy consideration must be to help ensure the continued viability of news reporting, so essential for the effective functioning of our societies and political systems. The industry must stand on its own feet and meet the new challenges of the digital age; if there is a level playing field there is no reason why it cannot do so. It produces content that people want to read, but if consumers can get the essence of that content for nothing, then the industry’s ability to continue to report on, investigate and publish news stories will wither and eventually die. At that point, the aggregators will have nothing to aggregate and the search engines will have nothing to search. The public will be the biggest losers of all. The modest proposal to entrench publisher’s rights in the EU Copyright Directive is a good first step in preventing this from happening.

© Hugh Stephens 2016. All Rights Reserved.