Communications of the ACM

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. 2

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
Overcome Opposition?

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
whether hyperlinking
to press publisher
contents will
generally be lawful.

Advertise with ACM!

Reach the innovators
and thought leaders
working at the
cutting edge
of computing
and information
technology through
ACM’s magazines,
websites
and newsletters.