EU Consults On “Neighbouring Rights” For Publishers And “Panorama” Copyright Exceptions

The European Commission is considering giving publishers the same “neighbouring” rights currently available to broadcasters and producers of someone else’s copyrighted content, it said in a 23 March consultation document. The inquiry is part of the EC’s digital single market initiative to boost Europe’s digital economy.

The document is available here.

Unlike copyright, neighbouring rights do not reward a creator’s original work, but rather its performance by a singer or actor, or an organisational or financial effort by, for example, a producer, which may also involve participation in the creative process, the EC said.

The neighbouring rights issue is controversial and has prompted fears of a so-called “Google tax” on news and other aggregation services, a claim publishers deny.

The consultation, which closes on 15 June, also seeks input on whether the current EU rules and level of harmonisation of the panorama exception – which allows governments to create copyright limitations or exceptions permitting the use of works such as architecture or sculpture that are permanently situated in public places – are hindering the digital single market.

Neighbouring Rights Issue “Misunderstood and Misrepresented”

The consultation seeks views as to any challenges faced by publishers of press and other print products in the digital environment arising from the current copyright system, the EC said. It asks about the impact of granting publishers a new neighbouring rights would have on them and on the whole publishing value chain, and whether the press’ needs in this area differ from those of other publishing sectors.

“The controversial discussion of neighbouring rights for publishers is not a new one,” Hogan Lovells attorneys Alastair Shaw, Nils Rauer and Diana Ettig wrote in a 4 April blog post. In 2013, it led to the introduction into German law of a special neighbouring right for press publishers, followed in 2015 by a similar right in Spain, they said.

The consultation could draw opposition from “many interested parties” for a variety of reasons, said Shaw, a counsel in the firm’s London office and a member of the intellectual property, media & technology practice. The main objections, however, are “likely to come in practice from news and other aggregation sites/services as it could hit their businesses hard,” he told Intellectual Property Watch.

News aggregators collect links to articles from different news sources and present them, including titles, snippets and advertisements, European Digital Rights noted in its 6 April newsletter. The revenue from those advertisements infuriated publishers, who complained in Germany about search engines and aggregators such as Google News driving traffic to their own sites. Germany responded by enacting legislation that allows an exception to this ancillary copyright right when copying “single words or snippets,” allowing publishers and aggregators to profit from the situation, EDRi said.

Despite criticism of the German law, it remains in place, and the EC is monitoring developments, said EDRi.

“This issue is already being misunderstood and misrepresented” in some of the technical press, with some asserting that the EC is proposing a German/Spanish-style ancillary right, said a European Publishers Council (EPC) spokeswoman. “This is very far from the case,” she told IP-Watch. The German and Spanish laws have been typecast as being a “lex Google or a link tax” that will break the internet and hamper access to free information, but that isn’t “strictly true,” she said.

Instead, the EC is considering a right that would broadly put publishers on par with other “producers” such as broadcasters, films and phonograms, the EPC spokeswoman said. Publishers won’t restrict sharing of their content among family and friends for non-commercial purposes, or sharing links on social media, she said.

Copying, aggregating and making available to the public is “now only a matter of clicks,” additional EPC information said. Publishers must be able to protect their massive online investments in order to generate revenues from new licensing models with new partners, but existing rules are “not clear but blurred and thus very difficult to enforce.” There’s a need for recognition at EU level that the published edition is “worthy of protection in its own right.”

Any opposition to the neighbouring right is likely to come from “those who seek to perpetuate an ecosystem where those who have not invested in the creation and production of publishers’ content benefit from the distribution commercially,” the EPC spokeswoman emailed. And “there are always the scaremongers who assert this will somehow lock up content,” when in fact all existing exceptions and any new ones agreed during the reform package will continue to apply, she said.

Panoramic Exception Murky

If “in the unlikely event” the EC proposes to make the panorama exception mandatory, “there may be strong reaction from architects and sculptors,” particularly in countries which don’t currently allow the exception, or permit it only in limited form, Shaw said. The UK already has the exception, which is broadly drafted and presents very few problems, mainly “because people generally do not expect to have to ask permission to photograph inanimate objects sited in public places,” he noted.

The uncertainty surrounding the panorama exception, however, was shown by a 4 April decision by the Swedish Supreme Court, EDRi noted. Under Swedish law, while architecture and sculpture are protected, everyone is free to make derivative works of them such as paintings and photographs, even when those works are sold commercially.

The Swedish Visual Arts Copyright Society, however, sued Wikimedia’s Swedish chapter claiming that the exception applies only to printed materials, not online. The high court sided with the copyright society, “choosing an extremely restrictive interpretation of copyright law,” EDRi said. The practical result is that people are barred from photographing a building in Stockholm and distributing it online, but may publish that same image as a paper postcard and sell it for profit, EDRi said: The decision “raises more questions than it provides answers.”

 

Image Credits: European Commission