From:
.com]
Ref. Ares(2016)5575203
Sent: Wednesday, June 15, 2016 7:02 PM
To: CNECT CONSULTATION COPYRIGHT
Subject: EURIMAG - Legal Paper on why “A Neighboring Right for Publishers is not Conform with
International Legal Obligations and EU law"
Dear Madam, Sir,
On behalf of EURIMAG, the association of the IT Imaging and Printing Industry in Europe, and in
addition to our input to the online consultation on the role of publishers in the copyright value chain,
please find enclosed our legal paper on why
“A Neighboring Right for Publishers is not Conform with
International Legal Obligations and EU law.”
Please do not hesitate to contact us in case you have any questions.
Kind regards,
Kevin Vindevogel
Associate Director
Rue d'Arlon 25
B - 1050 Bruxelles
Tel: +32 22 34 61 53
GSM: +
Fax: +32 22 34 61 71
A Neighboring Right for Publishers is not Conform
with International Legal Obligations and EU law
Brussels, 15 June 2016
Conclusion
Even if the Commission or individual EU member states may wish to set a new neighboring right in
favor of publishers, there are a number of legal barriers preventing such granting, including:
(1) international legal obligations assumed by the EU and member states in the field of copyright
(including the Berne Convention, the WIPO Copyright Treaty (WCT) and the TRIPS Agreement),
and
(2) the constitutional rules of the EU, in particular:
(i) rules dealing with free circulation of goods (art 34 and 36 TFEU), and
(ii) the Charter of Fundamental Rights of the EU.
In case there is a political aim for securing that publishers can enjoy originally (and not derivatively, as
is the case today) certain exclusive rights or, at least, a right to receive compensation for certain acts,
either at a EU or member state level, there is no need to provide them with ancillary rights additional
to those granted to authors, but protection of publishers may result either (1) from attributing them
the condition of author of certain works, or (2) from existing legal protection of databases.
Reprobel
Case
(copyright
exceptions)
-Out of
scope
1. A neighboring right for publishers is not conform with international legal
obligations
1.1. Overview
If individual EU member states, as is apparently proposed in some member states such as Belgium and
Germany, pass national legislation granting ancillary copyright to publishers that is either (i) equivalent
to those attributed to authors of either short extracts of newspaper articles or, more generally, literary
works (including books and academic journals), or (ii) restricted to certain remuneration rights, such
legislation would be contrary to their international obligations as set out in the Berne Convention (as
revised lastly in 1971) and the WIPO Copyright Treaty (WCT, 1996) and raise their liability.
Any similar initiative at EU level would also raise the direct liability of the EU under the WCT1 and
under the laws of the World Trade Organization (WTO), as the creation of ancillary rights to the benefit
1
Whereas all the EU member states are contracting parties to both the Berne Convention and the WIPO Copyright Treaty (WCT), the
European Union is a signatory of just the WCT.
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of publishers would also raise the issue of the conformity of these new rights with Art. 9(1) of the TRIPS
Agreement (1994), which requires its contracting parties to apply Articles 1 - 21 of the Berne
Convention.2
Further, if some Member States or the European Union introduced neighbouring rights to publishers
in isolation – i.e. without considering the obligations stemming from international copyright law - the
enactment of such rights would inevitably expose the whole EU or its Member States to the risk of
being targeted and sanctioned for the infringement of international trade rules under the WTO legal
framework.
Reprobel Case
(copyright
1.2. Detailed Examination
exceptions) -
Out of scope
The proposed creation of an ancillary right for publishers may infringe on international legal obligations
as set out below.
As pointed out below, the exclusivity and primacy of the rights of authors
under the current system of international copyright law restricts both the EU and its member states
from creating separate rights to the benefit of publishers
which would affect the protection of copyright or deprive the rights of
authors of a part of their value.
1.2.1. International Legal Obligations:
As the next sections show, the enactment of a new set of exclusive rights in all types of the literary
works they publish (or in short extracts from newspaper articles or press products) or a narrower
exclusive right
) for the benefit of
publishers make the EU and/or its member states infringe the following international obligations and
principles:
1. Exclusivity of the rights of authors in their writings set out under the Berne Convention (cf. Art
1, 2(6), 8 and 9(1) Berne Convention; Art. 6, 7, 8 WCT)
2. Primacy of authors’ rights over the rights related to copyright (or “neighbouring rights”)
3. Mandatory character of the quotation exception under Article 10 Berne Convention
4. Enforcement of intellectual property rights in a way that is conducive to social and economic
welfare and to a balance of rights and interests (Art. 7 TRIPS Agreement)
5. News, facts and mere items of press information should remain unprotected (and free to use)
under Art. 2(8) of the Berne Convention
1. Exclusivity of the rights of authors under the Berne Convention
The Berne Convention, which remains the main pillar of international copyright law, obliges all the
members of the Berne Union, and therefore also all the member states of the EU as contracting parties
2
All the EU member states and the European Union itself are members of the World Trade Organization (WTO) and contracting
parties to the TRIPS Agreement. As recently pointed out in the Opinion of Advocate General Campos Sanchez-Bordona in C-169/15 (
Montis
Design v
Goossens Meubelen), par. 15, the WTO membership of the European Union matters also from the perspective of the Berne
Convention, whose provisions are directly binding for the EU as a result of Article 9(1) of the TRIPS Agreement.
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to this agreement, to shape their national protection of literary and artistic property in a way that only
‘authors’ can be granted the economic rights of translation and reproduction of their works and be
regarded as original holders and beneficiaries of such rights (cf. Art 1, 2(6), 8 and 9(1) Berne
Convention).
The enactment of ancillary rights would not conform to one of the main principles of the Berne
Convention (cf. Article 2(6)), according to which copyright protection should operate solely for the
benefit of “
authors or their successors in title”. This provision of the Berne Convention explicitly obliges
the members of the Berne Union to provide authors with exclusive rights in their literary and artistic
works they can dispose of through contract.
The scope of the rights of authors was expanded significantly by the WCT (1996), which was concluded
as a special agreement under Article 20 of the Berne Convention3 and should be regarded as an
extension of the Berne Convention itself. The institutional purpose of the WCT was to adapt copyright
to the digital environment through the express recognition of additional exclusive rights such as the
rights of distribution, rental and communication to the public of their works (cf. Art. 6, 7, 8 WCT).
Under the Berne Convention the rights of authors are shaped as prerogatives of only one category of
rights-holders in relation to one single layer of ownership and protection: the ‘authors’ and their
‘literary and artistic works’. The TRIPS Agreement, which was adopted at the time of the establishment
of the World Trade Organization (WTO, 1994), restates and makes even more effective the centrality
and uniqueness of the rights of authors by providing under Article 9(1) that all the WTO members, as
a result of their membership, must comply with Articles from 1 to 21 of the 1971 version of the Berne
Convention, and in particular with its 1, 8 and 9(1).
Even though international copyright law instruments do not provide for an express definition of
'authorship', Article 2 of the Berne Convention embodies a non-exhaustive list of copyright-protected
works in a way that authors can be easily identified in relation to each distinct category of work. For
instance, as regards literary works, the fact that the Berne Convention mentions ‘books, pamphlets
and other writings’ as well as ‘lectures’ means that writers, novelists, researchers and lecturers can be
regarded as authors of such works.
Whereas the Berne Convention contemplates the possibility for its members of granting the status of
author on the grounds of the (shared) merits of the creative process - as it happens in the domain of
films - the Convention is very clear in affirming the
uniqueness of the rights of authors as well as their
transferability.
The Convention is very clear in obliging its contracting parties to shape their laws in a way that the
systems of protection of literary and artistic works benefit just the “
authors or their successors in title”
(cf. Article 2(6)). Such an explicit reference to the original entitlements of authors and the subsequent
ownership of the same titles by third parties shows that the Berne Convention intends to ensure the
creation of exclusive rights that authors of literary and artistic works can freely dispose of. According
to this provision, the rights of authors can either be inherited or transferred through contract. For this
free transferability to be ensured, as the Convention requires, there is no alternative to the creation
of exclusive rights of authors than acquisition of those rights by third parties on a derivative basis.
3
Article 20 of the Berne Convention (
Special Agreements Among Countries of the Union) reads as follows:
“The Governments of the
countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more
extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing
agreements which satisfy these conditions shall remain applicable.”
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Moreover, this means that publishers are already protected under the Berne Convention as
derivative
rights holders. Two provisions of the Berne Convention uphold the derivative character of the rights of
publishers:
- Firstly, Art. 3(3) of the Convention defines ‘published works’ as “works published
with the consent
of their authors, whatever may be the means of manufacture of the copies […]” (emphasis added).
- Secondly, Art. 15(3) provides that the publisher of an anonymous work is deemed to represent the
author and therefore may directly invoke the rights of the author.
These provisions show that the Berne Convention was aware of the prerogatives and roles of
publishers and purposely granted them limited protection, mainly as
derivative right holders.
Considering the centrality of the author as an exclusive holder and beneficiary of the economic rights
specified under the Berne Convention and the WCT, the exclusivity of these rights should also be
interpreted as entailing that a
duplication of entitlements covering the same or a too similar subject
matter would not be permissible under the laws of the countries of the Berne Union, since it would
overlap with the “exclusive” rights of authors, which will not be any longer “exclusive” of the author,
and dramatically increase legal uncertainty about rights ownership, to a great detriment of authors.
If a neighbouring right were granted to publishers under national law or at EU level, the right of the
publisher would create an additional layer of protection of literary works in which writers or novelists
already have exclusive rights. These rights are traditionally transferred or assigned to a publisher in
exchange for a fee or a royalty. The subject matter of the original rights of the authors and of that of a
hypothetical right of the publisher, and their respective layers of protection, would be identical or too
similar for them to coexist and make them preserve their value, which would inevitably be diluted. If
publisher rights were enacted, even in a more limited way, with regard to mere portions of text or
press products, it would be hard or impossible to keep such right distinct from the author's rights.
Would the right of the publisher depend on the previous acquisition of the author’s right under a
traditional publishing contract? Would not the main feature of exclusivity be lost? This is precisely
what the structure of authors’ rights under the Berne Convention does not allow.
2. The primacy of authors’ rights over the rights related to copyright (or “neighbouring rights”)
The fact that the rights of other categories of creators or persons who contribute to the creative
process could not be accommodated under the Berne Convention is historically proven by the adoption
of separate agreements that codified and aimed at protecting so-called “neighbouring rights” at
international level. The contracting parties to the Berne Convention were regarded as not allowed to
grant “neighbouring rights” without entering into additional international agreements that, with the
consent of the other contracting parties, would have complemented the protection granted to authors
under the Berne Convention while leaving intact and in no way affecting the protection of authors’
rights.
The first and most important of such agreements was the Rome Convention for the protection of
performers, producers of phonograms and broadcasting organizations (1961). Article 1 of the Rome
Convention explicitly states that the rights of performers, producers of phonograms and broadcasting
organizations (cf. as defined under Art. 2 and 3) should “
[…] in no way affect the protection of copyright
in literary and artistic works […]”. This means that no provision of the Rome Convention can be
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interpreted as prejudicing the protection of authors.4
An identical approach was followed in 1996 by the WIPO Performances and Phonograms Treaty (WPPT,
1996: cf. Art. 1(2)), which adapted the subject matter of the rights of performers and phonogram
producers to the new digital environment.
The adoption of sector-specific conventions for the enactment of neighbouring rights shows that, for
the granting of ancillary rights to publishers at national or at EU level, what would be required is not
only a new international treaty – such as the 1961 Rome Convention - but also an amendment of the
existing legislative instruments and, in particular, a substantive revision of all the provisions where the
Berne Convention and the WCT which identify ‘authors’ as the “exclusive” right holders of copyright-
protected works.
As pointed out above, if some Member States or the European Union introduced neighbouring rights
to publishers in isolation – i.e. without considering the obligations stemming from international
copyright law - the enactment of such rights would inevitably veer away from the mandatory
prescriptions of the Berne Convention and of the WCT. Considering also the incorporation of the Berne
Convention into the TRIPS Agreement, legislative initiatives aimed at creating ancillary rights would
expose the EU member states or the whole EU to the risk of being targeted and sanctioned for the
infringement of international trade rules under the WTO legal framework.
The aforementioned Rome Convention and the 1996 WPPT define the neighbouring rights of
performers and phonogram producers to ensure that these prerogatives cover distinct contributions
and distinct layers of creative works with the explicit purpose of avoiding an overlap of neighbouring
rights with the subject matter of authors’ rights. For instance, in the music sector, a performance of a
copyright song, its fixation and its incorporation into a phonogram are objectively distinct and
separate, in terms of subject matter, from the underlying musical composition that is fixed in a music
sheet.
Under Article 1 of the Rome Convention and Article 1(2) of the WPPT, the rights related to copyright
or neighbouring rights are clearly made subject to the effective protection of the rights of the author,
which should in no way be affected by the existence of those additional layers of protection and rights
ownership. This means that the acquiescence of the author is a prerequisite for performers, producers
of phonograms and broadcasters to legitimately acquire their (distinct) rights in their respective
creations. In the example mentioned above, whoever wished to perform a musical composition and
incorporate such performance into a phonogram would have to acquire permission to do so from the
author (i.e., the music composer), who is the sole direct beneficiary of the protection of literary and
artistic property right granted under the Berne Convention.
Unlike the rights of performers and record producers, a hypothetical ancillary right granted to
publishers in all literary works or in specific types of print works (e.g. newspapers, books or scientific
journals) would inevitably have to cover the text (or a portion of text) of such writings, which is
precisely the subject matter of the exclusive rights of writers, novelists and researchers.
The coexistence of rights granted to authors and publishers in the same texts and writings and the
addition of publishers to the existing layers and categories of original rights-holders would inevitably
trigger a clash between overlapping entitlements. As pointed out above, the system of protection of
literary and artistic property based on the Berne Convention requires contracting parties to ensure
4
It is worth recalling that membership of the Berne Union for the Protection of Literary and Artistic Works was (and still is) a pre-
condition to become a party to the 1961 Rome Convention (cf. Article 23 and 24(2)).
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that the creation of additional rights related to copyright do not affect the value and the effectiveness
of the rights of authors, while raising confusion with regard to their subject matter.
3. The mandatory character of the quotation exception under Article 10 Berne Convention
Granting ancillary rights to publishers at EU level would also end up disregarding provisions that make
it mandatory for contracting parties such as EU Member States to permit quotations, which are shaped
as a non-optional exception to the right of reproduction under Article 10 of the Berne Convention.
Article 10(1) of the Convention provides that quotations from a work should be permissible on
condition that their making is compatible with fair practice and their extent does not exceed that
justified by the purpose, including quotations from newspaper articles and periodicals in the form of
press summaries. Article 10(3) also provides that the source and the name of the author of the referred
work should be mentioned in the quotation. To pursue an objective of public policy, this mandatory
provision expressly refers to newspaper articles and periodicals with a clear intent to enable
quotations done for scientific, critical, informative or educational purposes.
If, in addition to the rights of authors (i.e., writers, journalist and researchers), exclusive or
compensation rights were granted to publishers in relation to the use of books, academic papers or
journals, newspapers or periodicals, the right of publishers to control and authorise extracts of text
would either (i) prevent users from making quotations, in a legitimate way, from the aforementioned
works or (ii) make users pay for extracts which are free under existing copyright exceptions. This
outcome would be in sharp contrast with the mandatory exception under Article 10(1) of the Berne
Convention and would inevitably conflict its public policy goal.
4. Social and economic welfare and balance of rights and obligations (Art. 7 TRIPS Agreement)
Granting publishers the right to control and license the use of their texts, irrespectively of the author’s
right in the same writings, would also contradict the purpose of Article 7 of the TRIPS Agreement,
which incorporates the Berne Convention as a result of its Article 9(1).5 As pointed out under Section
B.3 above, the exception of quotation provided under Article 10 of the Berne Convention has a
mandatory character and is deemed to be applicable in the digital environment and may be relied on
to enable uses by news aggregators and online search tools.
If publishers were granted the right to control and restrict the use of headlines or fragments of text,
the enforcement of this right against commercial and non-commercial users of such information (e.g.
online news aggregators, search engines, individual Internet users) would lead to the prevention
and/or obstruction of permitted uses of copyright works such as quotations. The scope of such an
ancillary right would inevitably frustrate the purpose of the quotation exception, which is that of
ensuring a better access to knowledge, an efficient dissemination of news also in the web-based media
environment and, eventually, the strike of a fair balance between the protection of the interests of
content distributors and the social and economic welfare of society at large.
Granting such ancillary
rights to content distributors such as book, journal or newspaper publishers would inevitably alter the
aforementioned balance of interests by restricting the application of copyright exceptions in certain
special cases that do not conflict with the normal exploitation of the copyright work and do not
unreasonably prejudice the interests of the rights-holder (cf. the so-called ‘three-step test’ under Art.
5
Article 7 of the TRIPS Agreement (
Objectives) reads as follows: “
The protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage
of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and
obligations.”
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9(2) of the Berne Convention and Art. 13 TRIPS Agreement). In a nutshell, if a separate, ancillary right
were granted to publishers, such right would run contrary to the prescription of Article 7 of the TRIPS
Agreement in so far as it stifled (instead of promoting) social and economic welfare and a fair balance
of opposite interests.
5. News, facts and mere items of press information should remain unprotected (and free to use), as
provided under Art. 2(8) of the Berne Convention
Finally, it should be considered that newspapers and other press products are subject to the provision
of Article 2(8) of the Berne Convention, under which ’news of the day’, ‘miscellaneous facts’ and ‘mere
items of press information’ are
not protected by copyright and remain free to be used without any
restrictions. This exemption from copyright protection is justified by the so-called idea/expression
dichotomy, which is relied on by the Berne Convention and explicitly mentioned under Article 9(2)
TRIPS Agreement and Article 2 WCT.6 This principle aims to make it sure that copyright protection does
not extend to ideas, procedures, methods of operation or mathematical concepts as such.
The exclusion of news and press items from copyright’s scope is not general. Those newspaper articles
such as editorials that because of their originality, qualify as literary or artistic works are not protected
by copyright. The provision of Article 2(8) of the Berne Convention merely aims at making it sure, in
the public interest that mere facts (i.e. news, items and data) remain unprotected and free for
everyone to use them.
What characterizes the special form of copyright protection granted to newspaper articles and
periodicals under the Berne Convention is the subjection to specific exceptions that seek to preserve
the principle of free access to (unprotected) news and facts by limiting the right of the copyright holder
to control and restrict access and certain uses of these types of works. In particular, while providing
for the aforementioned mandatory exception of quotation, Article 10(1) specifies that this exception
allows also for quotations and extracts from newspaper articles and periodicals in the form of press
summaries. Moreover, Article 10-
bis gives the members of the Berne Union the option to provide for
an additional copyright exception allowing for the reproduction and communication to the public of
newspaper articles and periodicals dealing with current economic, political and religious topics in their
own legal systems provided that the source of these works is clearly indicated and the reproduction
has not been expressly reserved by the copyright owner.
If an ancillary copyright consisting of a broad or narrow exclusive right (or a compensation right)
granted to publishers for uses of their works and products were introduced in the EU, this right would
easily encompass not only the works and/or portions of text protected by copyright, but also news and
facts that, under articles 2(8) and 10 of the Berne Convention, should be kept in the public domain or
remain freely available for purposes of news reporting in the form of press summaries and for the
pursuit of broader informative goals.
The public policy objectives embodied in the provisions of Article 2(8), Article 10(1) and Article 10-
bis of the Berne Convention would inevitably be stifled if the scope of an exclusive or compensation right
granted to publishers in their articles or press products ended up extending protection to facts, ideas
and information that the copyright system based on the Berne Convention leaves unprotected. In
short, ancillary rights granted to publishers would unlawfully restrict the freedom of accessing and
6
Article 9.2 of the TRIPS Agreement (
Relationship to the Berne Convention) reads as follows:
“Copyright protection shall extend to
expressions and not to ideas, procedures, methods of operation or mathematical concepts as such”; similarly, Article 2 WCT (
Scope of
Copyright Protection) provides that “
Copyright protection extends to expressions and not to ideas, procedures, methods of operation or
mathematical concepts as such.”
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using news and facts that is ensured not only through the exemption under Article 2(8) but also
through the specific exceptions under Article 10(1) and 10-bis. As pointed out above, facts or news
should remain freely available for quotations compatible with fair practice in spite of the inclusion of
such news and facts into newspaper articles and periodicals subject to copyright protection.
To finish, the fact that historically several attempts have been made at international level to enact a
special protection against free riding to the benefit of press agencies and other suppliers of news
services shows that under the current existing system of international copyright law, national law-
makers are not entitled to offer such protection.7 The possibility of protecting the (potentially very
high) commercial value of news products exists for EU member states
outside of the realm of authors’
rights, and in particular under Article 10-bis of the Paris Convention for the Protection of Industrial
Property (Washington Revision of 1911). This provision gives the members of the Paris Union the
option to assure to nationals of the Union effective protection against unfair competition, which could
also consist of remedies specifically targeted at unfair commercial practices in the news sector.
However, this provision excludes copyright as a legislative choice for the EU to (allegedly) enhance
protection of publishers.
As a conclusion, even if the Commission or individual EU member states may wish to set a new
neighboring right in favor of publishers, international legal obligations assumed by the EU and
member states in the field of copyright (including the Berne Convention, the WIPO Copyright Treaty
(WCT) and the TRIPS Agreement) will prevent that.
2. EU and national copyright rules must comply with the rules of the TFEU
on free movement of goods
Reprobel Case (copyright
exceptions) - Out of scope
7
The most relevant of such attempts was a draft treaty prepared by a committee of experts convened by a non-Berne body, i.e.
UNIDROIT (International Institute for the Unification of Private International Law), at Samedan (Switzerland) in 1939. This draft treaty dealt
specifically with the protection of news or press information. This was part of a broader exercise that resulted in a number of draft treaties on
the emerging subject of neighbouring rights (i.e. rights of performers, record producers and broadcasters). The text of the draft treaties,
including the so-called ‘Samedan draft’, is reported in 10
Le Droit d’Auteur (1940).
8
See at http://publishingperspectives.com/2016/05/jessica-sanger-germany-copyright-court/#.V16 mE1PpaT
9
See Section 4.3 of this Annex A.
10
Case C-169/99
Schwarzkopf [2001] ECR I-5901, para. 37; Case C-114/96
Kieffer and Thill [1997] ECR I-3629, para. 27; Case C-47/90
Établissements Delhaize frères et Compagnie Le Lion SA v Promalvin SA and AGE Bodegas Unidas SA [1992] ECR I-3669, paras. 24-24; Case C-
469/00
Ravil SARL v. Bellon Import SARL and Biraghi SpA [2003] ECR I-5053, para 86; Case C-12/00
Commission v. Kingdom of Spain [2003] ECR
I-459, para. 97.
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2.1. Quantitative Restrictions
Article 34 TFEU (ex Article 28 TEC) prohibits all quantitative restrictions on the free movement of goods
and all measures having an equivalent effect.
The CJEU has interpreted Article 34 TFEU broadly and held that its prohibition covers all Member State
measures that are “
capable of hindering, directly or indirectly, actually or potentially” trade in goods
among Member States.13 The Court has also made clear that the determining factor on whether a
measure falls within Article 34 TFEU is its effect, potential or actual, on Community trade even if the
measure is not intended to regulate trade in goods.14
Significantly, the CJEU has held that pecuniary measures may fall within the scope of Article 34 TFEU.
More particularly in the area of copyright protection, the Court has held that a national law allowing a
national copyright management society to object to the trade of goods for which no royalties had been
paid constituted a measure falling within the scope of Article 34 TFEU. For example, in
GEMA, the
Court held that a German law allowing a copyright management society to claim payment of royalties
on imported sound recordings for which royalties had already been paid in another Member State
constituted a quantitative restriction falling within the scope of Article 34 TFEU (ex Article 28 TEC).15
This view is also in line with the case law suggesting that licensing systems requiring the payment of a
fee constitute a quantitative restriction.16 The same results from recent jurisprudence of the CJEU
contained in its
Football Association Premier League and Others judgment,17 which is commented upon
below in the context of the non-application of prohibition provided in Article 34 under the justifications
available under Art. 36 TFEU.
Reprobel Case (copyright
exceptions) - Out of scope
11
Article 34 TFEU (ex Article 28 TEC) provides that
“Quantitative restrictions on imports and all measures having equivalent effect shall
be prohibited between Member States.” 12
Article 36 TFEU (ex Article 30 TEC) reads as follows: “
The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions
on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life
of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of
industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a
disguised restriction on trade between Member States.”
13
Case 8/74
Dassonville [1974] ECR 837, para. 5.
14
Case C-322/01
Deutscher Apothekerverband eV [2003] ECR I-4887, para. 67.
15
Case 55/80
Musik-Vertrieb membran GmbH et K-tel International v. GEMA [1981] ECR 147. Leading commentary on the EC rules
on the free movement of goods suggests that those royalties themselves are the quantitative restrictions, and not the power of collecting
society to prevent imports for which additional levies had not been paid (see Peter Oliver,
Free Movement of Goods in the European
Community (London: Sweet & Maxwell, 2003), pages 106 and 371).
16
Case C-189/95
Franzen [1997] ECR I-5909, paras. 68-71.
17
Joined cases C-403/08 and C-429/08, Football Association Premier League and Others.
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Reprobel Case
(copyright
exceptions) -
Out of scope
i)
-
24
Art. 5(2) a) and b) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information
society [2001] OJ L167/10 (“Copyright Directive”).
25
Joint cases C-457/11 to C-460/11,
VG Wort and Others, EU:C:2013:426, para. 37; case C-463/12,
Copydan, EU:C:2015:144, para.
65-66.
26
Case 46/76
Bauhuis v. the Netherlands [1977] ECR 5, para. 12. See alsoc ase C-362/88
GB-Inno v Confederation du Commerce
Luxembourgeois [1990] ECR I 667, para. 19.
27
The CJEU, in effect, is likely to look for guidance in the international agreements when assessing the “specific subject-matter” of
copyright. See Case C-245/00,
SENA v. NOS [2003] ECR I-1251 (for copyright); C-9/93,
IHT International Heiztechnick v. Ideal-Standard [1994]
ECR I-2789. (for trademark). See also Opinion of Advocate General Sharpston in Case C-306/05,
SGAE v. Rafael Hotles SL of 13 July 2006 (not
yet reported).
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(…)
29
Joined cases C-403/08 and C-429/08,
Football Association Premier League and Others.
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2.2.2
ii)
30
Case C-469/00
Ravil SARL v. Bellon Import SARL and Biraghi SpA. [2003] ECR I-5053.
31
Case 113/80
Commission v. Ireland [1981] ECR 442, para. 7.
32
Case C-23/99
Commission of the European Communities v. French Republic [2000] ECR I-7653, para. 43
33
Case C-200/96
Metronome Musik GmbH v. Musik Point Hokamp GmbH [1998] ECR I1953, para. 14; Case C-61/97
Vista Home
Entertainment A/S
[1998] ECR I-5171, para. 13.
34
See by analogy Case 302/86
Commission v. Denmark [1988] ECR 3607.
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.
3. Charter of Fundamental Rights of the European Union
The granting of any neighboring rights in favor of publishers must be also assessed under the Charter
of Fundamental Rights of the EU (2000/C 364/01) which has the same legal value as the European
Union treaties since its entry into force of the Lisbon Treaty in 2009.
It is settled case law that a fair balance must exist between the protection of intellectual property (as
protected under Article 17.2 of the Charter) and the protection of the fundamental rights and
freedoms of other stakeholders.37
In particular it should be assessed whether such granting may suppose a limitation – as we believe is
the case – of any rights protected under the Charter. Indeed, we believe that is the case in connection
with:
a) The freedom of expression and information, including the right to access to information, protected
under Article 11 of the Charter.
35
Case C-388/95
Kingdom of Belgium v. Kingdom of Spain [2000] ECR I-3123, para. 77.
36
Case 4/75
REWE Zentralfinanz [1975] ECR 843.
37
See judgments of the Court of 29 January 2008, Promusicae (C-275/06) 16 February 2012, Sabam (C-360/10) and 24 November
2011, Scarlet Extended (C-70/10)].
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Our Position on the Commission’s Consultation, to which this Annex is attached, provides a number
of practical examples about the implications of any such ancillary right in favor of publishers, which
undermines the right to access to information, including limited and more costly access to
information, increased levy payments resulting in increased price for devices, fewer and more
fragmented online services, reduced availability of content, more expensive access to content,
reduced media pluralism, restriction on text-and-data-mining activities, restrictions on open
publishing, etc.38
b) The freedom to conduct a business, protected under Article 16 of the Charter.
Similarly, our Position on the Commission’s Consultation provides a number of examples about
how an ancillary right in favor of publishers will limit freedom of other companies to conduct their
business, including the impact on providers of reproduction devices that may be subject to levies
in favor of publishers, the reduction in the availability of online services, limitations in traffic and
advertising revenue, increased barriers to entry, new layers of licensing obligations by online
services, impact on text-and-data mining industries and Internet Service Providers, impact on
industries growing their business based on innovation, etc.
In conformity with Article 52.1 of the Charter:
“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be
provided for by law and respect the essence of those rights and freedoms. Subject to the principle
of proportionality, limitations may be made only if they are necessary and genuinely meet
objectives of general interest recognised by the Union or the need to protect the rights and
freedoms of others”.
The limitation of rights and freedoms of such a large number of stakeholders (consumers, businesses,
other publishers, …) in the sake of publishers of online news, academic journals and/or books lacks
justification and does not conform to the stricter requirements of proportionality imposed by the
Charter itself in its Article 52(1). As described by Advocate General Cruz Villalón in his Opinion delivered
on 12 December 2013 (joined cases C-293/12 and C-594/14, paragraph 133):
“Article 52(1) of the Charter requires not only that any limitation on the exercise of
fundamental rights be ‘provided for by law’, but also that it be strictly subject to the principle
of proportionality. That requirement of proportionality, as already pointed out, acquires, in the
context of the Charter, a particular force, which it does not have under Article 5(4) TEU. Indeed,
what is postulated here is not proportionality as a general principle of action by the European
Union but, much more specifically, proportionality as a condition for any limitation on
fundamental rights.”
The proportionality requirement and the criterion of necessity were assessed in Section 2.2.2 above in
the context of the (non)applicability of Article 36 TFEU. Same findings – not meeting either the
proportionality requirement or the criterion of necessity – can be drawn in the context of Article 52.1
of the Charter.
The application of the Charter is unquestionable in case the European Commission intends to recognize
any such ancillary right for publisher by amending the Copyright Directive in order to recognize
publishers as an additional ancillary right-holder or by other EU law means.
38
See pages 9-14 of our Position on the Commission’s Consultation.
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However, some publisher representatives question whether the Charter applies in case such
recognition is provided at national level only by individual Member States, given that in conformity
with Article 51(1) of the Charter
“the provisions of the Charter are addressed to the Member States
only when they are implementing European Union law.”
In
Alemo-Herron and Others case (C-426/11)39, the CJEU stated that Directives, even when they do
not affect the right of Member States to introduce more protective provisions, must be interpreted in
light of the Charter and Member States must comply with the rights therein. Consequently, if a
Member State introduces measures that increase the protection of minimum-harmonization
Directives (
vis-à-vis, for example, workers, the environment, consumers or intellectual property right
holders), those measures, inasmuch they might jeopardize the overall objectives of the Directive, are
to be considered an “
implementation of EU Law” pursuant to article 51.1 of the Charter.
Consequently, the introduction by a Member State of an autonomous additional intellectual property
right in favour of publishers, beyond the harmonization enshrined in the Copyright Directive 2001/29,
is also considered to be an “
implementation of EU Law”, thus allowing the review of the said national
rule in light of the Charter, given that the
“actions of the Member States must comply with the
requirements flowing from the fundamental rights guaranteed in the legal order of the European
Union.”40
As a conclusion, the granting of an ancillary right to publishers will result in an unauthorized
limitation on the exercise of rights and freedoms recognized by the Charter in favour of other
stakeholders and be prohibited under Article 52.1 of the Charter.
4. Is there a legal gap in the protection of publishers by copyright law that requires providing them
with an ancillary right?
Publishers are not unprotected under copyright law. As substantiated in the following lines, no legal
gap exists that makes necessary to grant an additional ancillary right in favor of publishers as sufficient
legal protection is available for publishers under current copyright legal framework.
4.1. Publishers as derivative or original right-holders
a) Derivative right-holders, as licensees
Firstly, as anyone that is active in the publishing industry knows that under the publishing agreement,
publishers are typically assigned on an exclusive basis all the exploitation rights that correspond to
authors (reproduction, public communication, distribution, ...) on that publication, and there is nothing
that legally prevents them from granting sublicenses – as they do - of those rights to third parties
and/or defend their rights in front of infringers (for example, seminal
Infopaq case41 in front of the
39
In
Alemo-Herron and Others case (C-426/11), the Court came to the conclusion that a national provision that protected workers in
more protective terms than those enshrined in the Directive, was in breach of the right to conduct a business as laid down in Article 16 of the
Charter. In particular, the Court provided that “fundamental right covers, inter alia, freedom of contract, as is apparent from the
explanations provided as guidance to the interpretation of the Charter (OJ 2007 C 303, p. 17) and which, in accordance with the third
subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into account for the interpretation of the Charter (Case
C-283/11 Sky Österreich [2013] ECR, paragraph 42)” and that “
Article 3 of Directive 2001/23, read in conjunction with Article 8 of that
directive, cannot be interpreted as entitling the Member States to take measures which, while being more favourable to employees, are liable
to adversely affect the very essence of the transferee’s freedom to conduct a business (see, by analogy, Case C–544/10 Deutsches Weintor
[2012] ECR, paragraphs 54 and 58).” (see paragraphs 23-25 and 31-36)
40
See Fransson case (C-617/10), paragraphs 17-21.
41
Case C-5/08, CJEU judgment of 16 July 2009.
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CJEU was a litigation filed by DDF, a professional association of Danish daily newspapers, which
function is inter alia to assist their members with copyright issues).
Reprobel Case (copyright
exceptions) - Out of scope
b) Original right-holders, as authors
Secondly, publishers may be acknowledged under national legislations as having the condition of
author.
The Berne Convention leaves the notion of ‘authorship’ open to its determination to the Union
States42. This means that there are cases where the members of the Berne Union are entitled to confer
the status of ‘author’ to persons or entities that have acquired merits in the creation of a certain type
of work, for instance collective works such as encyclopedias or anthologies (cf. 2(5) Berne Convention)
or cinematographic works (cf. Article 14-bis).
Therefore, EU member states have the freedom to estimate, under certain circumstances, whether
publishers can be regarded as ‘authors’ because of their contribution to the creation of original works.
Publishers have been held to be authors of collective works created under their initiative and
coordination.43 In such situations, the legal protection of publishers results from their own status as
authors and not their status as publishers.
Therefore, given that Article 2 of the Berne Convention leaves the issue of authorship determination
to the Union States, EU member states have the option of looking into whether there are merits in
defining publishers as authors under certain circumstances, in consideration of the specific
contribution of publishers to the creation of original works. This would also render considerations and
attempts to provide publishers with a neighboring right that overlaps with the exclusive rights of
authors superfluous.
4.2. Protection of publishers as database makers
A “database” is broadly defined as “
a collection of independent works, data or other materials arranged
in a systematic or methodical way and individually accessible by electronic or other means” (see article
1.2 of Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the legal
42
Professor Sam Ricketson, the leading authority on the Berne Convention, acknowledges
(“The Bern Convention 1886-1986”; Section
6.4 (1987)) that:
“This means, in turn, that there are different national interpretations as to what is required for "authorship" and as to who is
an "author." In this regard, the Berne Convention provides only limited guidance: while it lists a series of works in article 2 that each Union
country is to protect, it does not ... contain any correlative definition of the term "author."
43
For instance, in virtue of judgment of the Spanish Supreme Court of 13 May 2002, the publisher of newspaper La Vanguardia was
recognized as the author of its newspaper as a collective work and was granted got protection against unauthorized copying of its classified
ads. A similar protection has been granted to newspapers publishers against press-clipping practices under a judgment of the Spanish Supreme
Court of 25 February 2014.
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protection of databases). This definition may cover newspapers, academic journals and book
collections, for instance.
Publishers who create databases may be protected either as authors by means of the exclusive rights
when the database is subject to protection by copyright protectable, or by means of the special
protection conferred by the sui-generis right specifically provided by the Directive 96/9/EC.
a) Databases protected by copyright
An ancillary copyright for publishers would be redundant and counterproductive in relation to
newspapers and academic journals and other collective works such as encyclopedias and anthologies
insofar as these works qualified as compilations of data and other materials that, “
by reason of the
selection or arrangement of their contents”, constitute intellectual creations and are protected as such
(see art. 3.1 Directive 96/9/EC).
Publishers may be granted with the condition of authors and original right-holders of the database.
Moreover, the arrangements applicable to databases created by employees are left to the discretion
of the Member States; therefore nothing prevents Member States from stipulating in their legislation
that where a database is created by an employee in the execution of his duties or following the
instructions given by his employer, the employer exclusively shall be entitled to exercise all economic
rights in the database so created, unless otherwise provided by contract (see art. 4.1, art. 4.2 and
recital 29).
As clarified under Article 5 WCT and Article 10(2) TRIPS Agreement, the protection of the exclusive
rights granted to the author of an original database does not extend to the data or the material itself
and is without prejudice to any copyright subsisting in the data, items or works embodied in the
compilation.
This means that, at least for works that qualify as original compilations, a set of rights for the publishers
to authorize the reproduction, distribution and communication to the public of their works already
exists. The crucial difference between this right and a hypothetical set of ancillary rights granted
directly to publishers is that the scope of the copyright in compilations of literary works and press
products is firmly limited by copyright exceptions, in particular the mandatory exception of quotation
under Article 10 of the Berne Convention. Moreover, both the TRIPS Agreement and the WCT specify
that any copyright subsisting in the data or works contained in a database should remain unaffected
by the exclusive rights in the whole database.
b) Databases protected by “sui-generis” right
EU and national lawmakers should also consider that publishers may already benefit from the special
regime of protection granted to database makers by means of the sui generis right provided under
Article 7 of Directive 96/9/EC. Article 7 of such Directive protects those publishers showing that there
has been qualitatively and/or quantitatively a substantial investment in either the obtaining,
verification or presentation of the database contents. This special protection may play an important
role, in particular, in the context of online news publishers.
The existence of the special protection under Article 7 of Directive 96/9/EC shows that, at least in the
EU as a whole and in the EU member states, databases are protected not only on the grounds of the
selection or arrangement of their contents – as prescribed by international copyright law conventions
- but also on the grounds of mere aggregation of data, through the application of a (narrower) sui
generis right.
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While considering the legitimacy and desirability of ancillary rights for publishers, lawmakers should
therefore bear in mind that publishers may already benefit from the 15-year exclusive right granted
under Directive 96/9 to mere compilations of data such as newspapers as well as academic journals
and book collections. For instance, if a newspaper publisher were regarded as a holder of a sui generis
right in a database (i.e. the newspaper itself and/or the related collections), this right would be broad
enough to grant the publisher the power to restrict quotations or extractions “
which conflict with
normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of
the database” (art. 8.2 Directive 96/9/EC).
Publishers’ sui-generis right on databases plays an important role in particular in the context of online
news publishers. In such regard, as referred by the Commission44 itself “
in December 2005 the
European Commission published an evaluation report on database protection at EU level. The aim of
the evaluation was to assess the extent to which the policy goals of Directive 96/9/EC had been
achieved and, in particular, whether the creation of a special sui generis right has had adverse effects
on competition. The evaluation finds that the economic impact of the sui generis right on database
production is unproven. However, the European publishing industry, consulted in an online survey
(August - September 2005) argued that this form of protection was crucial to the continued success of
their activities.”
Reprobel Case (copyright
exceptions) - Out of scope
at http://ec.europa.eu/internal market/copyright/docs/databases/evaluation report en.pdf
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As a conclusion, in case there is a political aim for securing that publishers can enjoy originally (and
not derivatively, as is the case today) certain exclusive rights or, at least, a right to receive
compensation for certain acts, either at a EU or member state level, there is no need to provide them
with ancillary rights additional to those granted to authors, but protection of publishers may result
either (1) from attributing them the condition of author of certain works, or (2) from existing legal
protection of databases.
Reprobel Case (copyright
exceptions) - Out of scope
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