What the New Copyright Directive Will Mean For Press Publishers and Journalists

By Giulia Priora

On 12 September 2018, the European Parliament has voted in favor of the proposed Directive on Copyright in the Digital Single Market, thus bringing it forward to the so-called trilogue (the legislative phase of negotiation between the EU Parliament, Council and Commission) and, eventually, to a vote by the Parliament’s plenary session for its official and ultimate adoption. Comments on the approved text of the Directive have followed up the decision quickly.[1]

The approved version of the proposed Directive includes several amendments to its first original drafting, yet the changes are not of substantial character when it comes to Article 11, recorded under the heading “Protection of press publications concerning digital uses”.[2] The introduction of a new exclusive right for press publishers to decide upon digital uses of their news content, has been left intact[3] in the approved version of the proposed Directive, with a few additional indications addressing the following questions:

• How long? The duration of the press publishers’ right has been set to five years.[4]
• Right to authorize digital uses by whom? The approved version of the proposed Directive clearly states that “information society service providers” will need to collect rights clearance from press publishers, while non-commercial individual users will not have to do so.[5] The goal emerging between the lines is to target specific market players, that is to say today’s big news aggregators, yet without explicitly mentioning them, not to restrict ex ante the scope of the protection, which may face further technological threats in the future.[6]
• Which digital uses? The mere action of hyperlinking, including cases when the link is accompanied by a single word, does not constitute digital use subject to required authorization.[7] Similarly to the previous question, the proposed Directive seems to target well-known commercial models of exploitation of published news content, such as the use of snippets prior to the hyperlinks, which may give the users the core information about the published content and may in fact prompt them not to open the hyperlink at all.

All these aspects create room for debate and analysis on the possible responses of the market players to such changes. Particularly interesting is the addition of the vaguely worded Paragraph 4a to the Article, according to which “Member States shall ensure that authors receive an appropriate share of the additional revenues press publishers receive for the use of a press publication by information society service providers”. How such redistribution mechanism could function and what this would imply in the news industry are important questions, lying at the core of this research project.