Ref. Ares(2016)5668918 - 29/09/2016
For the attention of Heads of State and Government in the European Council
Press Publishers’ key priorities and concerns regarding
the Digital Single Market Strategy
ENPA, the
European Newspaper Publishers’ Association, and EMMA, the
European
Magazine Media Association, would like to highlight the main strategic priorities and challenges
of the press publishing sector in Europe, ahead of the discussion on the Digital Single Market
(DSM) Strategy at the European Council meeting of 25-26 June 2015, and propose ways in
which these priorities could be addressed.
1. VAT reform must allow Member States to apply lower VAT rates for digital press
We welcome the commitment in the DSM Strategy which states that the Commission will explore
how to address the tax treatment of certain e-services, such as digital books and online
publications, in the context of the general VAT reform. Moreover, we very much appreciate
President Juncker's subsequent announcement that the Commission will put forward in 2016 a
proposal, with the aim of providing Member States with the opportunity to reduce VAT rates for
digital press. This long overdue VAT reform needs the specific support of the Council, since it is
the Member States which should decide unanimously in favour of this essential adaption of the
VAT system to the digital economy..
The recent ruling of the Court of Justice of the European Union against France and Luxembourg,
following their consistent application of a lower VAT rate to print and e-books, has demonstrated
the need for the EU to urgently update its VAT system to the reality of today’s digital market.
Newspaper and magazine publishers regard this update of the EU VAT system as indispensable
to remove a major obstacle to the further development of the digital press market in Europe.
Lowering the VAT rate on digital press would promote the access of European citizens to
authoritative and independent press content on all platforms, which plays such a crucial role in
European democracy.
Several Member States and Members of the European Parliament have already called for this
essential adaptation of the EU VAT system to the digital age. In this context, the possibility for
Member States to apply zero, super reduced or reduced VAT rates to printed newspapers and
magazines has made an indispensable contribution to wider public policy goals.
We therefore call on the European Council to give its full support to a Commission
proposal allowing Member States to apply to digital press the same zero, super reduced
and reduced VAT rates that currently apply to printed press, while maintaining the
possibility to apply these rates for the printed press.
2. Modernisation of copyright rules must allow European press publishers to thrive,
in order to safeguard a vibrant, independent and pluralistic press
Newspaper and magazine content – delivered in print and across all digital platforms - represents
a vital contribution towards building a better-informed and engaged democratic society. Effective
copyright protection is a key factor in securing the independent journalism, news and
analysis that are fundamental elements of any democracy. Digitisation has not reduced but
increased the need for copyright protection, together with better enforcement. Press publishers
must be able to rely on copyright protection to ensure remuneration for their significant
investment and for the sustainable delivery of the high-value, quality, professional content they
produce for Europe’s citizens and businesses.
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The substantial investment of publishers in developing new business models is based on the
existing EU copyright framework, which carefully balances rights, exceptions and limitations. It is
of vital importance that the crucial decision on the future of a new copyright framework is taken in
full knowledge of the real economic impact of any new exceptions. For example, the ability of
publishers to license their content for press review and other services has long provided a
legitimate and essential revenue stream which could be
devastated by a new exception for text
and data mining. Likewise, there should continue to be the possibility for publishers to authorise
and make
appropriate agreements with libraries/universities to allow for off-premises
online consultation of works.
One of the key challenges facing press publishers in the digital environment is how to ensure that
technology companies, news aggregators and other third parties do not extract the value of their
content, without remuneration for those who created or invested in that content. Effective IPR
enforcement mechanisms and procedures are essential to combat both piracy and parasitism; as
well as to ensure that rights holders and society at large can fully enjoy the benefits of the IP
system. Therefore,
a modernised EU copyright framework should include exclusive rights
for publishers to protect their printed and digital press products, as well as promote media
pluralism, in line with long existing rights for other creative industries such as, for example,
broadcasters or phonogram and film producers.
We ask the European Council to directly acknowledge that copyright reform must under
no circumstances threaten Europe’s vibrant, independent and pluralistic press sector,
which is so crucial for our democratic society. This means rejecting further exceptions
and limitations going beyond the current framework and fully supporting the protection of
press publishers’ content in the digital environment.
3. Fair competition and transparency in the digital world is essential
In the Digital Single Market, fair competition and transparency are vital to
maintain media plurality
and to promote informed citizenship. In order to allow readers to find and access press content,
non-discriminatory and fair access of publishers to all digital platforms, as well as transparent and
fair search engines, are prerequisites for the development of attractive and sustainable content
offers.
Principles such as fair search, net neutrality and platform neutrality are key and
have to be upheld, with the intervention of competition authorities where necessary. Otherwise,
legislators must act in order to prevent gate-keeping or bottleneck effects that could hamper the
development of content offers online.
In particular, Google’s market behaviour and consequently the Commission’s investigation in the
Google competition case (AT.39.740) are crucial to press publishers’ economic viability, media
pluralism and diversity, as well as for future investments in new jobs, products and premium
content. ENPA´s Spanish member AEDE and German member BDZV, jointly with EMMA´s
German member VDZ, are formal complainants in the Google case, which has been ongoing for
five years.
We welcome the Commission’s statement of objections of 15 April 2015 regarding the self-
preferential treatment of own shopping services in a quasi-search monopoly and support the
extension of this finding on publishers’ products and services. We share the Commission’s
preliminary assessment of 13th March 2013, that Google is abusing its dominant position in the
field of web search services and welcome the Commission’s intention to find appropriate
remedies for this market distortion.
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Publishers from Germany and Spain, supported by the vast majority of publishers from across
Europe, have expressed the view that it is time for the Commission, as a highly respected
competition authority, to enforce EU Competition rules effectively.
Only a clear ban on Google´s
preferential treatment of its own services and content within its quasi search monopoly
can put an end to the anti-competitive conduct and would restore competition, innovation and
consumer choice in the digital market.
We agree with the Commission’s commitment to fair competition and a level playing field in online
activities. We welcome the way in which the DSM Strategy has identified problematic areas
regarding platforms controlling access to markets and remuneration, using strong bargaining
power and promoting their own services to the disadvantage of competitors. The Commission’s
commitment to launch a comprehensive assessment of the role of platforms is also a welcome
development
The most urgent action in this field is the ban of self-preferential treatment in a quasi-
search monopoly, which the Commission should take in the ongoing Google case. We
ask the Council and the Member States to give the Commission the full support it needs to
finalise this important case. As regards further action and the assessment of the
aforementioned tasks, we ask the Council and the Member States to acknowledge the
concerns outlined by the Commission and for their help in finding appropriate measures
to remedy misuse of market dominant positions in the online environment.
4. Data protection rules should not hamper a free and independent press
As trialogue negotiations are now set to begin on the proposed General Data Protection
Regulation, the current and forthcoming Presidencies of the EU have a mandate to negotiate.
However, Member States will continue to have a critical role in this debate to ensure
that the
final text agreed does not affect Europe’s core democratic values, which include press
freedom. In this regard, the draft Regulation must ensure that journalists can continue fulfilling
their daily mission and it must not pose a threat to the long-term economic sustainability of the
press sector.
In particular, Member States’ obligations to provide for
exemptions for journalistic data
processing under the existing Directive 1995/46/EC must not be weakened under the new
Regulation (Article 80). The draft Regulation
should also not endanger press subscriptions
and controlled circulation, which strongly depend on data processing for direct marketing
purposes based on opt-out, as allowed under the existing Directive. It is essential to keep an
adequate balance between the data subject’s rights on the one hand and the necessary use of
data for publishers’ current and future business models on the other.
We therefore call on Member States to robustly defend the Council’s approach as a
minimum solution during the forthcoming trialogue discussions on Article 80, and to avoid
an overly restrictive approach, in particular on Articles 6, 14, 19 and 20, which could
seriously and immediately affect the sustainability of press business models because it
would prevent publishers from reaching potential new subscribers and readers.
5. It is vital to maintain an exception for the press in any review of the AVMS Directive
Consultations are underway regarding the future revision of EU Directive on Audiovisual Media
Services (AVMS), which explicitly excludes electronic versions of newspapers and magazines
from its scope. As addressed in the DSM Strategy: "the Commission will consider whether the
current scope or the rules should be broadened to encompass new services and players that are
currently not considered as audiovisual media services under the Directive...".
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It is important to underline from the outset, that the press sector in Europe, in all its forms, cannot
be regulated in the same way as broadcasting and other audiovisual services which are based on
state licensing, prior authorisation and supervision of content by authorities, co-regulation and
specific, strict commercial communications restrictions. It is therefore
essential to preserve
press freedom on digital platforms by keeping digital press out of the scope of application
of the AVMS Directive – including accompanying audiovisual services not being the
principal purpose of the service.
In the interests of maintaining a vibrant and pluralistic media landscape, where the broadcast
media and the press can co-exist successfully in the Digital Single Market as vehicles of
information, policymakers must realise the importance of maintaining a sufficient advertising
share for the press in order to ensure its sustainability. The 12 minute per hour limitation for
advertising for broadcast programmes was not only established as a consumer protection
measure, but also to allow a fair distribution of advertising between different media. It is therefore
important that this limit remains in place.
Furthermore, the possibility to grant certain content providers (e.g. public service broadcasters)
privileged status with regard to their findability on these new hybrid platforms is against the
principle of net neutrality, as it would affect the availability of access to other types of content on
an equal and non-discriminatory basis, and
should therefore be rejected. We call on the European Council for its support on this matter in order to preserve press
freedom and promote media pluralism on all platforms.
6. Combatting illegal content on the Internet while respecting freedom of expression
The DSM Strategy addresses the question of removing illegal content (e.g. based on terrorism,
child pornography, copyright infringement, etc) and the role and liability of intermediaries under
the E-Commerce Directive. The press publishing sector understands the public policy objectives
to protect society against any threat to security or individual freedoms. It is therefore crucial to
ensure that any measures taken on this basis do not impede other fundamental rights and
freedoms, including freedom of expression. We therefore welcome the statement by the
Commission that there will be
due regard to the impact on the fundamental right to freedom
of expression and information.
We would however ask the European Council to recognise the need to preserve the E-
Commerce Directive, which is a cornerstone of the digital economy in Europe. Any
future legislative proposal to tackle illegal content on the Internet should not lead to
an obligation for publishers to monitor constantly blogs, forums, comments, etc. Such
an obligation would go against press freedom, as it would lead to a systematic prior
content control and censorship. The respective rules on liabilities in the E-Commerce
Directive have already enabled the balancing of the various interests.
7. EU legislation on consumer contracts and banning “geo-blocking” will have a
profound impact on press publishers’ businesses
It is vital for press publishers, which are mostly SMEs, to avoid the introduction of any legislation
that could hinder distribution and easy access by consumers to European magazines and
newspapers. Any
potential new legislative measures would make the process of agreeing
and managing contracts more complicated, in particular subscription contracts which are
becoming an increasingly important source of revenue for publishers. We are therefore extremely
concerned about the reference in the DSM Strategy to proposals for legislation for harmonised
mandatory EU contractual rights applicable to domestic and cross-border sales of tangible goods,
and for online purchases of digital content.
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