transition to digital publishing has
been challenging and required experimentation with new business models. Press publishers are fearful these
business models will not suffice to
sustain their industry.
The moral argument said to support the new press publishers’ right
arises from a sense of unfairness that
technology companies (think Google)
and online news aggregator services
(for example, Meltwater) are making
money, either from advertising or from
subscriptions, by providing members
of the public with free access to their
news, through links and snippets,
without compensating the publishers
who provided that news.
A secondary argument has focused
on difficulties that press publishers
have sometimes encountered in proving copyright ownership in articles
written by freelancers when suing
search engines or news aggregators.
Some momentum for the press publisher right has built up in the last few
SHOULD EUROPEAN PRESS publishers be granted a new intellectual property (IP) right over online uses of their journalistic contents?
These publishers have long had both
copyright and sui generis database IP
protections for these contents. Yet the
European Commission, Council, and
Parliament have been convinced that
only by granting the new IP right will
sustainable quality journalism continue to be produced in the EU. Despite
some strong opposition, this proposal
seems likely to be adopted and made a
mandatory part of EU law.
Sometimes known by its critics as
the “link tax” provision, Article 11 of
the proposed Directive for the Digi-
tal Single Market (DSM) would grant
press publishers a new set of exclusive
rights to control the reproduction and
making available of online journal-
istic contents by information society
service providers. Under the proposed
compromise text made public in No-
vember 2018, these rights would last
for one year.
Critics of Article 11 have tried to
blunt somewhat the scope of this new
right. For instance, the Parliament’s
version of Article 11 would provide
that the right “shall not extend to
mere hyperlinks which are accompanied by individual words.” But the
Council and the Commission have
not exactly agreed to this change or to
the Parliament’s proposed exception
for “legitimate private and noncommercial uses” by individual users; negotiations to finalize the text of this
Directive are ongoing and likely to be
concluded in 2019.
Arguments for the Press
It is no secret that these are trying
times for press publishers. Paid subscriptions have generally declined,
readership has eroded, and advertising revenues that long supported
print journalism have shrunk. The
Questioning a New
Intellectual Property Right
for Press Publishers
Considering the implications of the “link tax” provision of the proposed
EU Directive for the Digital Single Market for traditional press publishers.