Regular readers of Information Matters will be aware of the European Commission's efforts to modernise and update copyright law under the auspices of the Digital Single Market Strategy . The Strategy itself includes "16 targeted initiatives to create better access for consumers and businesses to digital goods and services across Europe; setting the right conditions for digital networks and innovative services to flourish and maximise the potential of the digital economy."
The latest move is a recently-announced consultation by the Commission "seeking views on the role of publishers in the copyright value chain, including the possible extension to publishers of the neighbouring rights". This sits broadly within the Commission's drive to try and establish a fairer and better functioning marketplace for copyright – responding to suggestions that the value of copyright is not currently shared fairly between rights-holders and distribution channels.
Critics (including some publishers) have attacked the move as a "tax on snippets" aimed at making search engine operators pay for content, but which will backfire if the search engines reduce access to news content as a result.
'Neighbouring rights' (sometimes referred to as related rights) are usually contrasted with 'author's rights' (which protect literary, dramatic, musical and artistic works). Neighbouring rights extend copyright-style protection beyond authors of original works to others who are not authors in the strict sense – notably, record producers, broadcasters and performers. Similar rights are afforded to publishers of published editions and databases. Neighbouring rights might be said to protect something other than authorship, such as production or organisational investment.
The consultation, which closes on 15 June 2016, invites comments on whether to extend such a neighbouring right to "publishers of press and other print products in the digital environment". The justification would be to reward the organisational and/or financial contribution to publishing content, as distinct from the underlying copyright in the content which might be owned by someone else (eg, journalists and photographers). The underlying rights of authors, and contracts with them, would remain unaffected.
Many industry bodies have welcomed the consultation, with the Professional Publishers Association describing it as an "important step at a time when the role and the value of the press needs more than ever to be recognised in a global digital and media environment."
From a UK perspective it is worth noting that many publishers already acquire copyright in large amounts of content – automatically from employees creating content in the course of their employment; or, from freelancers, by way of assignment; and also through the separate copyright protecting the typographical arrangement. A publication such as a newspaper is also likely to attract some protection as a database (whether copyright or sui generis database right).
In this context, it may initially be difficult to see the value of the new right. However, while securing assignments from journalists may work well in the traditional print context, in a digital environment – with content (especially news content) coming from so many different sources, especially from social media, and delivery methods of that content being so different – it may be less effective. Also, while publications might have been protected in the UK by the old compilation copyright, this has ceased to be available since the advent of the sui generis database right which, at least arguably, leaves a gap in protection between those parts of a publication that are an intellectually creative selection or arrangement (protected by copyright) and those are unprotected because they fail to meet the test for a sufficient investment in "obtaining" the contents (as established in British Horseracing Board v William Hill).
Quite separately, across the continent some copyright systems make it harder at the outset for publishers to become owners of authors' rights, hence the Commission's interest in this area. In its initial response to the consultation announcement, it was striking to see the UK's News Media Association put a marker down that it will "work to ensure that a publishers' right does not encourage a 'harmonising down' of copyright" in respect of employers' ownership of material produced by employees, which they argue could weaken the position in countries such as the UK, Ireland and the Netherlands where there are stronger systems of protection in place.
Anticipating the "tax on snippets" criticism, the Commission's Fact Sheet of December 2015 said: "The Commission has no plan to tax hyperlinks. We have no intention to ask people to pay for copyright when they simply share a hyperlink to content protected by copyright." Paving the way for this consultation, however, the Fact Sheet went on to say that the Commission "will look at the activities of different types of intermediaries in relation to copyright-protected content. This is a different issue."
The Panorama Exception
For completeness, but with a completely different focus, the consultation has a second limb looking at the 'panorama exception'. This exception already exists at EU level, but is not mandatory. It allows the publication and use of images – generally photographs and videos – of works that are permanently located in the public space, be they buildings, sculptures or other works of art. Essentially the exception allows people to take photos of public art and upload them online.
However, not all Member States have such an exception. This has been highlighted by the ruling last week by Sweden's highest court against Wikimedia Sweden in relation to its provision of free access to an online database of artwork photography. Conversely, the UK does have such an exception, in the form of section 62 of the Copyright, Designs and Patents Act 1988. This permits, for example, the communication to the public of photographs or films of buildings, and of sculptures permanently situated in a public space or in premises open to the public.
The consultation asks whether the variation in approaches across the EU gives rise to specific problems in this area – by way of market fragmentation and distortion – in the context of the Digital Single Market and the drive for greater harmonisation.
The consultation (covering both issues) closes on 15 June 2016, but as with all matters EU-related at the moment, it is likely to be events of the following week that dominate attention.
If you require further information on anything covered in this briefing please contact Paul Jones ([email protected]; 020 3375 7254) or Peter Wienand ([email protected]; 020 3375 7355), or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, April 2016