Vviewpoints

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
Publisher Right

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

Legally Speaking
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.
DOI: 10.1145/3306610