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Intellectual Property Update: Article 11 of the Agreed Text of The Controversial Copyright Directive

19 March 2019

In February 2019, after over two years of deliberations and protracted negotiations, the European Commission, the European Parliament, and the Council of the European Union finally reached an agreement on the final text of the proposed EU Copyright Directive. 

In this article we take a closer look at the scope of the proposed new rights protecting press publications and how both industry and academics are reacting. The proposed Directive has sparked intense debate across society in the European Union, including strong opposition and lobbying from both sides.

Background

In September 2016, the European Commission adopted its proposal for the EU Copyright Directive with the aim of adapting copyright law to the evolution in digital technologies. In May 2018, the Council of the European Union reached an agreement on a common position on the proposed directive. This opened a series of negotiations between the Commission, the Parliament and the Council. A disagreement between France and Germany on some exemptions initially stalled negotiations in January 2019. However a breakthrough compromise was reached on 8 February 2019 which enabled the sixth and final negotiation to take place on 13 February last, and an agreement on the final text was delivered.

Article 11

Article 11 proposes to give publishers like the Irish Times and the Irish Independent rights over news content shared online and will require Google, Microsoft and other online news aggregators to pay those publishers for displaying their news content and articles. These rights will fall into the category of copyright known as neighbouring rights which reward the economic and creative contribution in assembling, editing and investing in content (as opposed to the copyright that subsists in the original articles produced by the journalists). The new rights extend existing rights of reproduction and communication to the public including the making available of works to the public (as set out in Articles 2 and 3 of the InfoSoc Directive (2001/29/EU)) to such press organisations. Private and non-commercial uses of press publications carried out by individual users as well as acts of hyperlinking are not affected.

Online platform providers will be able to freely share content comprised of individual words and “very short extracts”. It is expected that guidance on what constitutes “very short extracts” may filter down from the Commission and ultimately the Courts. GIFs and memes will continue to be shareable on online platforms because uploading protected works for the purposes of quotation, criticism, review, caricature, parody or pastiche has been protected. These rights will vary in length from 2 to almost 3 years depending on the date of the publication in question (a substantial drop from the 20 years originally proposed).  

Already done before?

Both Spain and Germany have already implemented a similar form of ancillary copyright:

  • A German law from 2013 allows press publishers to be paid a fee for 'ancillary copyright' when search engines and news aggregators display digital excerpts from newspaper articles. This right does not apply to 'single words or small text excerpts' which can be displayed without gaining permission from publishers. In practice however, the law proved to be ineffective as many major publishers opted to waive their ancillary right to ensure continued indexation with key platform owners who refused to negotiate licences and threatened to de-index content.
  • Spain modified its Copyright Act in October 2014 to institute a copyright fee to be paid by online news aggregators to publishers for linking to their content. Unlike Germany, publishers cannot waive this fee, and as a result, the Spanish law makes it mandatory to pay the copyright fees to publishers. Again, to a large extent this measure proved ineffective as Google announced that due to this law, it had to remove Spanish publishers from Google News and closed the Spanish version of Google News.

Industry and academic reaction

Unsurprisingly Europe's leading press publishers' associations have applauded the agreed compromise text which aims to improve press publishers' bargaining position and protects them against the unauthorised digital reproduction and distribution of their press publications. The Federation of European Publishers (FEP) has also welcomed the provisional agreement reached. Equally unsurprisingly, the association representing online platforms, EDiMA, believes the agreed text will do little to foster innovation, but rather will reinforce the position of established rights-holders and rights-holder channels.

On the academic side, the European Copyright Society argued at the outset of this process in 2016 that the rationale for creating neighbouring rights for publishers is limited. In their view, extending neighbouring rights to publishers by equating them with phonogram producers would be unjustified, given that publishing requires very limited upfront investment in technical infrastructure. In addition, creating an extra layer of rights could generate legal complexity and may even have a detrimental impact on EU research policy's open access strategy. The same society also flagged what they see as serious regulatory design flaws, and unintended consequences of the equivalent existing legislation in Germany and Spain.

Next steps

The proposed Directive can now move to the final stages of the European legislative process.  The European Parliament and the Council of Europe are expected to take their final vote in the coming months. It is somewhat unlikely that the controversial articles will be substantively modified during this process.

Once formally confirmed the agreed text will be published in the EU official journal, following which it will come into force. Member states will then have 24 months to transpose the Directive into national law. The Directive has taken a long and winding road to this point but the end line is in sight. Those affected organisations on both sides now need to plan in earnest to deal with the consequences.

For more information relating to the potential impact of the Copyright Directive, contact a member of our Intellectual Property team. 


The content of this article is provided for information purposes only and does not constitute legal or other advice.

Discuss your intellectual property queries now with Brian McElligott.

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