The Parliament’s version of Article
11 would have cut the duration of the
proposed press publisher right to a
five-year term in contrast to the Commission’s original proposal of 20 years
from publication. But when it comes
to news, even five years seems unduly
long. The November 2018 compromise
text would follow the German law in
granting press publishers these rights
for only one year.
Finally, the Parliament-approved
version of Article 11 proposed requiring press publishers to provide authors
with a “proportionate” share of whatever revenues the publishers collect
from licensees of the new right. This
might well reduce (perhaps by half) the
benefits to publishers from creation of
this new IP right. Or it may instead lead
to much higher license fees to fund the
author-sharing. The November 2018
compromise text retains this proposal.
As well-meaning as the author-sharing proposal may be, it underestimates how substantial will be the
costs necessary to obtain sufficient
information to determine which authors are entitled to get what part of
each press publisher’s revenues.
A key assumption underlying the proposed DSM Directive, including Article
11, is that strengthening European
IP rights will lead to much greater licensing revenues flowing to European
rights holders from (mostly) American
technology companies. (See my November 2018 column discussing the
even more controversial Article 13 of
European press publishers have lobbied heavily for this new right and seem
on the verge of getting a significant boost
in leverage this right will give them to
negotiate for new revenue streams from
search engines and news aggregators.
The German and Spanish experiences
thus far cast doubt on the prospects for
significant successes. Whether an EU-wide right will achieve better results
remains to be seen. Maybe Google and
Facebook will pay up, but maybe not.
There is, of course, some irony in
the EU’s prospective adoption of a
Directive aimed at promoting a “digi-
tal single market” given that no one
licensing entity exists from which
technology firms can get an EU-wide
license. Each member state will have
its own implementation of the DSM
directive. Prospective licensees will
have to negotiate with every member
states’ preferred collecting society to
clear all the rights necessary to make
digital uses of European journalistic
Even if Google and Facebook decide
to take licenses from European press
publishers and can afford to negotiate
all of the necessary licenses, isn’t there
a significant risk these licenses will further entrench them as dominant players in global information markets? The
new press publisher right would seem
to impose significant transaction costs
as well as establish expensive licensing
fees for some individual bloggers, innovative startups, and small enterprises that may want to link to journalistic
contents from European sites.
While there is very little chance at
this point that Article 11 will be deleted
from the DSM Directive, some further
compromises may be negotiated by
those responsible for finalizing its text
so that freedom of information and expression are not unduly repressed by
adoption of this unfortunately ambiguous new IP right.
A closed-door “trilogue” is under
way among representatives of the European Commission, the Council, and
the Parliament, each of which has supported a different version of Article 11.
The November 2018 compromise text
will likely not be the last word. Other
nations should, however, be wary of
following the EU’s lead on this particular initiative.
1. Bently, L. et al. Strengthening the Position of Press
Publishers and Authors and Performers in the
Copyright Directive: A Study Commissioned by the
European Parliament (2017); https://bit.ly/2wL9ZhQ
2. Kretschmer, M. et al. The European Commission’s
Public Consultation on the Role of Publishers in the
Copyright Value Chain: A Response by the European
Copyright Society, European Intellectual Property
Review (E.I.P.R.) 38, 10 (Oct. 2016), 591–595; https://
3. Max Planck Institute for Innovation and Competition.
Position Statement on Proposed Modernisation of
European Copyright Rules, Part E Protection of Press
Publications Concerning Digital Uses; https://bit.
4. Ricolfi, M., Xalabarder, R., and van Eechoud, M.
Academics Against Press Publishers’ Right, Statement
from 169 EU Academics, 2018; https://bit.ly/2r3a1QD.
Pamela Samuelson ( firstname.lastname@example.org) is
the Richard M. Sherman Distinguished Professor of Law
and Information at the University of California, Berkeley,
and a member of the ACM Council.
Copyright held by author.
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