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Ref. Ares(2016)2874320 - 21/06/2016
The impact of ancillary rights in news products
In this briefing document, EDIMA seeks to summarise research available on, so-called, “ancillary rights” in news,
so as to contribute towards an open and evidence-based policy making process. All research cited – economic,
empirical and legal - is publically available.
The research demonstrates an overwhelmingly negative impact for consumers, for news publishers and for
innovation in countries which have attempted to create such ancillary rights. Research also highlights key legal
issues such as compliance with international law and respect for fundamental rights.
Furthermore, there is compelling evidence that online services are increasing the opportunities for news providers
to reach their audiences online and develop their business in the digital age and online services are increasing
pluralism, media diversity and access to information for EU citizens.
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Negative impact on news publishers and pluralism
Publisher views on ancillary rights
The introduction of ancillary rights creates significant problems
“
There is a formidable consensus that no-one likes
for news publishers in Europe, which has led to a number of news
the law”; “as long as I am president of Prisa, no part
publishers already condemning the creation of those rights.
of the media group will collect the [Ancillary
Copyright] fee", Juan Luis Cebrián, CEO of Prisa
Ancillary rights act as
a barrier to competition and pluralism, by
(owner of leading Spanish publication such as El País,
making it harder for publishers to reach their readers online.
Diario AS and Cinco Días).
Smaller publishers, regional publishers or new online news
publishers are disproportionally affected, suffering a competitive
Rainer Esser,
CEO of German weekly
“Die Zeit”,
disadvantage. In Spain, the decline in traffic following the
refers to the German law as a “
hazardous
adoption of the law saw
smaller publishers losing twice as much
construction”.
traffic as large publishers (AEEPP/NERA, 2015).
“
This legislation is a step away from a competitive
Ancillary rights make it harder for news publishers to generate
and diverse press. It will only make it harder for us to
online traffic, creating more obstacles to the dissemination of
compete with other news outlets”, Arsenio Escolar,
their content. In Spain,
the loss for the news publishing industry,
Spanish Association of Periodical Publications,
suffered predominantly by smaller, free or online publishers, is
Benedetto Liberati, President of the Italian Online
estimated to reach EUR 10 million a year. The reduction in
Publishers Association, Alexandre Malsch, Co-
traffic threatens their advertising revenues (AEEPP/NERA, 2015).
founder and CEO of meltygroup, Tomasz Machała,
CEO and Editor-in Chief, naTemat, Łukasz Mężyk,
The
property rights and freedom to conduct a business of
Founder & Editor-in Chief, 300polityka.
publishers is negatively impacted by the creation of these rights.
Publishers are forced, through the Spanish law, to charge a fee,
“
The very few large and international publishing
through the intermediary of a collecting society, for the
houses […] want to prove that despite their
dissemination of their news products online.
dwindling journalistic influence, they are still in a
The
global competitiveness and diversity of domestic European
position to instrumentalise parliaments in Europe
publications suffers. European publications such as the Daily
for their purposes and to create obstacles for
Mail and The Guardian – respectively the 4th and 5th largest global
unwelcome competition. In my opinion, those few
audiences for news in 2014, Comscore – would find it harder to
large companies have never been after the ancillary
use online channels to reach their audiences. According to the
copyright per se, but after strengthening their
Max Plank Institute the availability of local domestic content will
future bargaining position [...]”, Wolfgang Blau, The
be reduced and non-domestic content will be more visible (MPI,
Guardian, Director of Digital Strategy.
2012).
Hanspeter Lebrument, President of the Swiss media
Association: the adoption of the Spanish law is
“
shooting yourself in the foot”.
Sources:
Max Planck Institute for Intellectual Property and Competition Law, Statement on the draft law for an amendment
of the German Copyright Act (Urheberrechtsgesetz) to include ancillary copyright for publishers, 27 November 2012.
Available in German here.
AEEP, Open Letter to Commissioner Oettinger, 10 December 2014. Available here.
El Confidential, “Cebrián dinamita el 'lobby' de la prensa”, 7 July 2015. Available here.
Schweizer Radio und Fernsehen, “Schweizer Verleger geschäften gut mit Google“, 11 December 2014. Available here.
Der Standard, 22 June 2015
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Negative impact on consumers and citizens
Ancillary right type laws create
increased search costs for consumers, as it makes it harder for them to access
news from aggregators, apps, blogging services, social networks etc. In Germany, 57% of the consumers find text
“snippets” helpful (Bitkom, 2015).
The choice and diversity of news sources available to consumers is also reduced.
Reduced access to online news aggregation services results in
users being less likely to investigate additional,
related content in depth (Chiou and Tucker, 2015).
Concretely, in Spain alone, this mean a
loss of EUR 1.85 billion a year for consumers – in so-called “consumer
surplus” (AEEPP/NERA, 2015).
Links, without context, are practically useless to consumers and Internet or app users. Without small extracts of
text, links in apps and on the Internet would be reduced to “blue URLs”. URLs themselves often include text for
instance using the title of an article. This is why the Max Plank Institute clearly states that “copyright law cannot
be applicable in such cases, as otherwise
the use of links which contain minimum indications of the content to
be found would often be blocked”.
There would be a clear impact on the ability of Europeans to exercise their right to information (accessing
information online), a chilling effect on freedom of expression and broader social and economic consequences
from such a course of action.
EU citizens also exercise their own freedom of expression online, using many online tools and services that will be
affected by an ancillary right. As an indication of the scale of those activities, in 2013, over 20% of EU news users
engaged in some form of news commentary every week. Close to 8% commented on news stories online, over 2%
wrote blogs on news or political issues, over 3% sent news videos or pictures to a news website (Reuters Institute,
2014).
Sources:
Reuters Institute for the Study of Journalism and Oxford University (2014), Reuters Institute Digital News report 2014.
Available here.
Lesley Chiou and Catherine Tucker (2015), Content Aggregation: The Case of the News Media, NET Institute Working
Paper No. 11-18. Available here.
Pedro Posada de la Concha, Alberto Gutiérrez García and Hugo Hernández Cobos (2015), Impact of the New Article
32.2 of the Spanish Intellectual Property Act, Conducted by NERA Consulting, Commissioned by AEEEP. Available here.
Bitkom (2015), Ancillary Copyright for Publishers – Taking Stock in Germany. Available here.
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Distortions of copyright and legal impact
Academic opinions on ancillary rights
Ancillary rights for publishers
distort copyright law, using copyright
to subsidise a part of the news publishing industry (Xalabarder,
Max Planck Institute for Intellectual Property
2014). The Max Planck Institute adds that “[i]ndustrial property
and Competition Law: “
When considered
rights are only required where such a market failure is imminent.
overall, the [bill does] not appear to have been
This situation does not exist in the case of published works in
well thought-through. Furthermore, it is not
relation to aggregators.”
possible to justify the draft with any objective
argument. Even the publishers are not fully
The 1886 Berne Convention protects the right to quote from
supportive of the measure”.
newspaper articles, the only mandatory exception under
international law. Incorporated under EU law via the TRIPs
Prof. Raquel Xalabarder
, Universitat Oberta de
agreement,
restrictions against quotations rights infringe EU and
Catalunya
:” The proposal amounts to an
international law (Xalabarder, 2014).
attempt to subsidise an industry at the
expense of another and it does so by distorting
Restricting the ability to link meaningfully with accompanying words
copyright law rules and infringing EU law and
of context infringes the right to
freedom of information and the
international obligations”.
right to link (MPI, 2012).
Prof. Dr. Gerald Spindler, University of
The obligation to charge a fee administered by a collecting society
Göttingen: “
The [law] is a strange entity in
infringes
the right of rightholders to conduct a business and their
copyright law and is posing several problems
right of property – or to dispose thereof (Xalabarder, 2014). This
which can’t be overcome effectively.” “[It]
includes the loss of the ability to apply creative commons licences
needs to be abrogated as press products cannot
and to allow indexing, linking and sharing freely to one’s works.
be differentiated from other parts of texts. Even
the weather forecast is covered by the AC”.
Ancillary rights generate
legal uncertainty, as they create rights
which are ill-defined and overlap with the existing rights of
Prof. Dr. Axel Metzger, Humboldt University
publishers and journalists, to such an extent that “circumstances in
Berlin: “
The [legislation] is a lobby-driven law”
which the right is based can scarcely be rewritten” (MPI, 2012).
and “created a massive bone of contention in
the information society. Legislation in this field
Sources:
seems half baked and lobby-driven”.
AEEPP/NERA, ibid. Available here.
MPI, ibid. Available in German here.
Prof. Dr. Thomas Hoeren, University of
Raquel Xalabarder (2014), The Remunerated Statutory Limitation
Münster, “
The introduction of [the legislation]
for News Aggregation and Search Engines Proposed by the
has been a disaster. One needs to have the
Spanish Government - Its Compliance with International and EU
courage to abolish it again. [...] Actions taken by
Law, IN3 Working Paper Series, WP14-004, Internet
the [German publisher association] have been a
Interdisciplinary Institute. Available here.
confession of failure and the explanation for
Bundestag Expert Hearing (2014), “Experten für den Wegfall des
this behavior are embarrassing”.
Leistungsschutzrechts“. Available here.
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A destructive solution in search of a problem: digital technology is a positive force for pluralism and news
publishing in Europe
In search of a problem
Research shows that there is no “substitution effect” – online services using links and snippets are not substitutes
for news articles and do reduce traffic to news websites or apps (MPI, 2012; Spanish Competition Authority, 2014;
Chiou and Tucker, 2015; AEEPP/NERA, 2015).
Instead, online services drive online viewers to the websites of news publishers, who then generate revenue from
advertising and / or subscriptions (AEEPP/NERA, 2015).
Further, news and other publishers can opt-out simply of the various online services that provide links or snippets
(Spanish Competition Authority, 2014).
Consumers use a vast number of different online tools to access news and inform themselves (Reuters Institute,
2014) – meaning publishers of news or others are not reliant on a single service to reach their readers.
Sources:
AEEPP/NERA, ibid. Available here.
MPI, ibid. Available in German here.
Chiou and Tucker (2015), ibid. Available here.
Comision Nacional De Los Mercados Y La Competencia (2014), “Proposal on the Amendment of Article 32.2 of the
Bill to amend the recasted Intellectual Property Act”, PRO/CNMC/0002/14. Available here.
Consumers use a broad mix of services to access news
In the EU (UK, FR, IT, ES, DE, FI, DK), according to the Reuters News Institute, close to 40% of news users directly
access news via the website of a news brand. Other tools include email, social networks, news aggregators and
micro-blogging services.
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Google News in Spain, as well as address any outstanding questions that
you may have regarding copyright and publishing.
will be in Brussels on the 26th and 27th January 2015. Should this
be of interested, I would be more than happy to follow up with your office
to find a convenient time.
Thanks you and best regards,
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development of new licences and new sources of revenue. Such a right would also be without
prejudice to authors’ rights.
Moreover, this clarification is necessary to ensure that press publishers throughout the EU will
have the legal certainty to be able to confidently assert their rights and therefore be able to e.g.,
seek remedies when there is unauthorised use of their content, or have the possibility to be
remunerated for authorised use. To give just one example, the recent ruling by the Court of
Justice of the European Union case concerning Hewlett Packard and Reprobel (C-572/13), which
concerns reprography schemes in Belgium, further illustrates the need to clarify the InfoSoc
Directive. The Court held that publishers are not considered to be ‘rightholders’ under the
relevant provisions of the Information Society Directive, and are therefore not considered to suffer
harm and be entitled to compensation.
2. Publishers have agreements with libraries and archives to provide off premises
access to digital content and must be able to continue to make such agreements
All across Europe, press publishers are involved in agreements with libraries, including for e-
lending, which enable them to fulfil their mission in a digitised society. It would be wholly
inappropriate to legislate and enforce statutory licences by means of an exception to the benefit
of libraries and to the detriment of the publishers’ core business i.e. publishing content both in
print and digitally.
Intervention by EU legislation allowing digital newspapers and magazines to become immediately
and widely available for free by libraries and off-premises, in competition with publishers, will
inevitably undermine business models and legitimate sales.
If people can access and read a
digital publication on a device away from library premises there is no reason for readers to
even consider paying for it.
It is of utmost importance that the existing exceptions, which allow libraries and other institutions
to make available works contained in their collections (and not subject to licence terms) to
individual members of the public for research or private study, remain for use within the premises
of the libraries and archives (Article 5(3)n).
Any e-lending or off-premises consultation must
continue to require a licence.
Likewise, any policy initiative extending exhaustion of the distribution right from print to digital
would represent a catastrophe for the press. There cannot be a re-sale right for “second hand”
electronic copies of publications. For instance, why would anyone buy the original of a digital
magazine when they can get it the next day in perfect condition at a fraction of the price?
3. Licensing solutions accommodate text and data mining for scientific research
purposes: an exception would put press publishers’ businesses at risk
An exception for Text and Data Mining (TDM) would be a disproportionate response to an issue
where licensing solutions are already in place and there is evidently no market failure. It is vital
that the licensing solutions available, which include one-click licences, as well as those being
further developed are fully taken into account.
Likewise, the extent of the threat posed by an exception to the competitiveness and sustainability
of European press publishers must also be taken into account. The press archives – which are of
immense commercial value to publishers – would be under threat from parties wishing to gain
free access to a full range of copyright protected works, without having to enter into a licensing
agreement. This would lead to an unjustified transfer of economic value (e.g., to multinational
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technology companies, news aggregators, media monitoring agencies) with publishers losing the
ability to manage how their content is used and for which purpose.
A TDM exception covering commercial use would damage both the primary market and
secondary markets for the content that could be mined. The ability of publishers to license their
content for press review services has long provided a legitimate and essential revenue stream for
Europe’s newspapers and magazines. Such services could be devastated by a TDM exception.
An exception for ‘non-commercial use, would also constitute a serious risk for the European
press sector, due to the difficulty of sufficiently drawing the line between research and other
activities, and between non-commercial and commercial. Any end results of research should not
become a substitute for the published content.
In 2014, a study commissioned by the European Commission concluded that a new exception is
not warranted but could harm publishers’ incentives to expand their content offerings and result in
the appearance of substitute products to those that the publishers might offer.
It is clearly to the mutual benefit of both publishers of content and miners to find licensing
solutions which permit researchers to mine works and allow them to do so as seamlessly and
easily as possible, while securing publishers’ investments in their publications. An exception
would not enable TDM on its own, as TDM is not only a legal issue but also a technical issue.
Licences are therefore much better suited. Furthermore, publishing houses have to be able to
carefully manage the TDM process, in order to prevent massive abuse or loss of their archives.
4. Any reform needs to take into account unauthorised distribution of content and its
consequences
Press publishers share concerns about the widespread unauthorised distribution of content free
riding on the creators’ intellectual efforts. Concerns have been raised for several years at both EU
and national level as regards the threat posed to the press sector from “free riding”, in particular
by news aggregation services, which undermines the ability to create the professional journalism
on which a free and democratic society depends.
We appreciate the Commission’s commitment to address concerns that certain platforms are
denying fair remuneration to right holders and the launch of its 2015 consultation on online
platforms.
It is vital that copyright continues to draw the line between reference to content and unauthorised
re-use. Aggregators of information and search engines should therefore always get the prior
authorisation of publishers before reproducing their content, as upheld by various court decisions
(e.g., Infopaq, Copiepresse, Meltwater cases).The courts have also confirmed that there are
some circumstances under which provision of a hyperlink leading to a work protected under
copyright should be subject to the authorisation of the rightholder, such as where the hyperlink is
comprised of or includes text protected as the whole or part of a copyright work, and where links
would allow the circumvention of restrictions designed to limit access to those works.
In cases such as aggregation by intermediaries where third parties generate revenue and web
traffic based on the unauthorised use of publishers’ press products, a key aspect of the solution is
that press publishers are also recognised as having
exclusive rights, like broadcasters,
phonogram and film producers have long held under the Information Society Directive (as set
out in point 1). This would also help to rebalance the relationship with dominant online platforms.
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5. Flexibility in the current EU copyright framework safeguards Europe’s cultural and
media diversity and there is no evidence of the need to expand current exceptions
The on-going EU copyright review has not yet provided clear evidence of the need to introduce
any new exceptions and limitations to copyright, to harmonise existing exceptions, or to even
make any further exceptions mandatory. The InfoSoc Directive provides the necessary flexibility
regarding Europe’s cultural diversity and different legal traditions while al owing the press sector
to deliver innovative new offerings. The substantial investment of publishers in developing new
business models is based on this Directive, which carefully balances rights, exceptions and
limitations.
It is therefore of crucial importance that exceptions should remain applicable only in certain
special cases “to avoid interference with normal exploitation of works, or to avoid unreasonable
prejudice to the legitimate interest of right holders” (in accordance with the “three step test”
enshrined in international treaties and incorporated into EU law). If further exceptions to copyright
reduce publishers’ possibilities to publish, disseminate and manage their content, Europe’s
culturally diverse landscape with its free and independent press would be seriously undermined
or even irreparably damaged.
Licensing agreements provide the better, faster and more adaptable solutions for rightholders
and users alike. Press publishers support the flexibility of the current system, with its specific list
of limitations and exceptions, along with a degree of national discretion.
Flexibility is important to ensure that the EU copyright framework matches the needs of individual
Member States, whose needs may vary. The current optional nature of exceptions and limitations
allows Member States the possibility to exercise their national competence regarding creative
and media content which, by its nature, is predominantly of local, regional and national character.
There are no indications that more mandatory exceptions and limitations would lead to a better
result than the pragmatic approach chosen by the EU, based on optional exceptions and
limitations, combined with the development of practical solutions on a case-by-case basis to
enhance harmonisation when required and appropriate.
Publishers of newspapers and magazines are strongly opposed to the introduction of an “open
norm” or “fair use” provision, which is totally unacceptable in the context of the EU copyright
framework which already provides for a comprehensive list of exceptions and limitations to
copyright. Furthermore, widely differing interpretations of this “open norm” would inevitably create
legal uncertainty.
6. Readers benefit from portability and cross border dissemination of press content
More people are enjoying press content today than ever before, on all available platforms. Once
purchased, digital content is portable across borders. Furthermore, readers can access press
websites in the vast majority of cases from outside the country of the provider, both from within
the EU and from third countries. We note that the current copyright framework is not an obstacle
to EU-wide licences.
In this context, it should also be noted that rightholders depend on the possibility to buy and sell
licences for particular national markets. This means that, for example, an innovative digital offer
can be rolled out and tested in a small market or that a small press title in a minority language
can afford licences e.g. for pictures used in that title. Often EU-wide licences might not be
affordable for publishers and thus should not be made mandatory. We support market led
solutions, which offer choice and diversity for consumers and businesses in the digital
environment.
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New EU proposals in this area should not be made unless a thorough market analysis has
been conducted demonstrating the necessity for particular action. In respect of the legal
framework for copyright, the EU should continue to pursue a pragmatic approach, respecting the
principles of proportionality and subsidiarity, in line with better regulation policy.
7. Respect for freedom to contract in the press sector
Respect for the freedom to contract and to negotiate are of fundamental importance for European
press publishers. Competence for discussions concerning contracts and remuneration lies at
national level, reflecting the different legal systems and practices, not at EU level.
Any EU action in the field of copyright contract law would be unacceptable for press publishers,
as it would contravene the principle of subsidiarity, failing to respect national legislation already in
place in the different sub-categories of contract law and in the different sectors, and would not
respect the freedom to contract. It would therefore be wholly inappropriate for any follow up to the
ongoing study examining remuneration - commissioned by the European Commission - to involve
EU action.
EMMA, the European Magazine Media Association, is the unique and complete representation of
Europe’s magazine media, which is today enjoyed by millions of consumers on various platforms,
encompassing both paper and digital formats. EMMA represents 15,000 publishing houses,
publishing 50,000 magazine titles across Europe in print and digital. See www.magazinemedia.eu
ENPA is an international non-profit organisation representing publishers of newspapers and news
media on all platforms. ENPA represents over 5,200 national, regional and local newspaper titles,
published in many EU Member States, plus Norway, Switzerland and Serbia. More information at:
www.enpa.be
Contacts:
Francine Cunningham
Catherine Starkie
Executive Director, ENPA
EMMA Director, Legal Affairs
xxxxxxxx.xxxxxxxxxx@xxxx.xx
xxxxxxxxx.xxxxxxx@xxxxxxxxxxxxx.xx
Tel: +32 2 551 0196
Tel: +32 2 536 0602
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