however, still quite vague. Would it, for
instance, exempt a person or nonprofit
organization that regularly blogs with
links to EU press publisher sites?
The Parliament-approved version
also provided that “mere hyperlinking accompanied by individual words”
would not trigger liability. However, the
latest compromise text has retained
the Commission’s original version of
Article 11, which would extend liability
to hyperlinking if it constituted a communication to the public.
Because the communication right
in respect of hyperlinking is an ever-evolving concept under some very
confusing CJEU decisions, it remains
unclear whether hyperlinking to
press publisher contents will generally be lawful.
Yet, the November 2018 compromise text would qualify the press
publisher right by providing that
“uses of insubstantial parts of a press
publication” should not give rise to
liability. Moreover, member states
could determine what parts of press
publications are “insubstantial” by
“taking into account whether these
parts are the expression of the intellectual creation of their authors, or
whether these parts are individual
words, or very short excerpts.” This
qualification is better than nothing,
but notice how vague is the concept
of “insubstantial” and what if member states differ on how many words
are too many?
Another qualification proposed in
a recital to the compromise text indicates the rights should not extend to
“mere facts” reported in the press publications. Again, this is better than no
such limitation, but it begs the question of what “mere facts” includes and
does not include.
Article 11 would, the Statement concluded, impede the free flow of news
and other information vital to a democratic society, harm journalists who
often rely on search engines and aggregators, and create uncertainty about its
coverage and scope.
It was also unclear how the new
publisher right would interact with existing copyright laws, which typically
allow for fair quotations, and database
rights, which allow extractions of insubstantial parts of databases.
The economic case for Article 11
was, moreover, weak. The press publisher right would increase transaction
costs considerably, as well as exacerbating existing power asymmetries in
media markets. The Statement pointed to the ineffectiveness of the German
and Spanish press publisher regimes
as additional reasons not to create
such an EU-wide right.
The Max Planck Institute’s Center
for Innovation and Competition also
published a Position Statement opposed to Article 11.
3 The European
Copyright Society’s response to the
European Commission’s public consultation on the role of publishers in
the copyright value chain raised significant questions about the proposed
press publishers’ right.
The Bently et al. report noted that online journalists perceive the new right as
a threat to the nature of news communication in the modern era: “Paying for
links is as absurd as paying for citations
in the academy would be.” That report
cast doubt on the wisdom of adopting a
provision such as Article 11.
Will Compromise Provisions
To respond to concerns expressed by
various critics, the European Parliament in September 2018 approved
several amendments to Article 11. For
instance, it proposed creating an exception for individual users to make
“legitimate private and noncommercial uses” of press contents.
The compromise text made public
in November 2018 contains a similar,
although differently worded, provision. It states that the press publisher
rights “shall not apply to uses of press
publications carried out by individual
users when they do not act as information society service providers.” This is,
It remains unclear
to press publisher
generally be lawful.
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