Ref. Ares(2016)6796283 - 05/12/2016
Annex I – Gestdem 2016/5882
Documents
1. Dr Richard Danbury, Is an EU publishers' right a good idea? - Final report on the
2
AHRC project: evaluating potential legal responses to threats to the production of
news in a digital era, CIPIL, 15/06/2016, (Ref. Ares(2016)5575203)
2. Paper from EDiMA, Impact of ancillary rights in news, 25/11/2016
87
(Ref.Ares(2016)2874320)
3. EPC, Draft Position Paper: Presenting the Case for a Publishers' Exclusive Right,
31/08/2015 ( Ref. Ares(2016)5575203)
95
Links to others documents
4. Publishersright.eu, Publishers in the Digital Age, Frequently Asked, Questions,
04/05/2016 – See
http://www.publishersright.eu/
5. Transcript of the Amsterdam Conference "Copyright, related rights and the news in
the EU: Assessing potential new laws", CIPIL, April 2016 - See:
http://www.cipil.law.cam.ac.uk/projectsappraising-potential-legal-responses-
threatsproduction- news-digital-environment-ahrc
1
Document 1
Dr Richard Danbury, Is an EU publishers'
right a good idea? - Final report on the
AHRC project: evaluating potential legal
responses to threats to the production of
news in a digital era, CIPIL, 15/06/2016,
(Ref. Ares(2016)5575203)
2
Is an EU publishers’ right a good idea?
Final report on the AHRC project: Evaluating potential legal responses to
threats to the production of news in a digital era
This work is an output of a two-year study funded by the AHRC (grant
H/L004704/1), entitled
Appraising Potential Legal Responses to Threats to the
Production of News in a Digital Environment. The Principal Investigators were
Professors Lionel Bently and Ian Hargreaves, and the Research Associate was Dr
Richard Danbury. This final report was the work of Dr Danbury, and he gratefully
acknowledges the enormous help and assistance he has received, while owning
that any errors or omissions remain his responsibility. It does not necessarily
reflect the views of Professors Bently or Hargreaves.
Dr Richard Danbury,
Centre for Intellectual Property and Information Law
Faculty of Law
University of Cambridge,
UK
xxxxxxx@xxxxxxxxxxxxxx.xxx
15 June 2016
3
Executive Summary
This is a discussion about commercial news production, and copyright-related laws in
Europe. It is a response to the consultation opened by the European Commission in
March 2016 about whether to create an EU-wide neighbouring right, in the copyright
family of intellectual property rights, that will benefit publishers. It examines four
arguments for a news publishers’ right. These are:
• it will provide a necessary incentive to the commercial production of news, an
activity that is valuable to a democratic society;
• commercial news publishers are treated unequally by EU copyright law, and a
publishers’ right will resolve this;
• online re-distributors of published news are free riding on the effort of
commercial news publishers, and a publishers’ right can be expected to restrain
this;
• commercial news publishers have a natural right to the news they publish, and
such rights are being breached by online re-distributors of news: a publishers’
right can be expected to protect them.
The incentive argument
The incentive argument provides a cogent set of reasons to intervene to benefit the
commercial news industry. This is because on balance, the commercial news industry can
be seen as contributing to a healthy democracy in a valuable way, and there is insufficient
reason to expect it to be replaced by something as useful if it fails. There are also cogent
reasons to expect that the difficulties in which the commercial news industry finds itself
are severe, and long-term. If many commercial news operators go bankrupt or withdraw
from expensive but democratically important activities, this is likely to significantly
impair communication valuable to our democratic states. This leads to the conclusion that
an intervention would be useful and beneficial.
However, the incentive argument contains some manifest weaknesses. There is a risk of
benefitting those who do not need it, or do no longer need it, or for doing things we do
not want to incentivise. The industry has had in the past remarkable levels of
profitability, and it would be an error to intervene and replicate these. We must not
confuse the need to protect the function of journalism with the need to protect its form,
and we need to disregard any arguments from the commercial news industry or others
that seek to collapse these together. But, on a balance of risk, it seems appropriate to
intervene.
What is less clear is that any incentive should be by a right related to copyright, and even
less clear that any such right should be harmonized across the EU. There must remain
concerns about whether a publisher’s right would be effective, particularly given the
experience of the copyright-related laws that were adopted in Germany and Spain in an
attempt to benefit commercial news producers. It may well provide a marginal benefit,
which would be welcomed by the news industry, but there is also a very real risk that any
benefit will become less significant in the future, given the changing patterns of news
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distribution in an online world. And, given differences in the news businesses in Member
States, intervention might be better if it were not at a European level.
Also significant are the concerns that a publishers’ right may harm or damage others. The
risk of this should be weighed in the balance against any benefits a publishers’ right
might be expected to deliver to society. At present, this is difficult because we have no
text to consider.
The equality argument
The equality argument seems simple, but this is deceptive. It may, perhaps, be true that
news publishers are not afforded neighbouring rights, while other entrepreneurial content
producers are, and that this appears inconsistent. But before this can amount to a reason
to bring in a new neighbouring right for news publishers, a variety of complex judgments
need to be made. What, in detail, will a new right entail; what were the reasons that the
old rights were afforded; do those reasons pertain now; are they sufficient to support
providing news publishers with rights?
Moreover, other questions need to be answered, that are raised by the equality argument:
what other inconsistencies might be created by establishing a news publishers’ right, and
can these be defended, given the fact that we wish to pass a publishers’ right to avoid
inconsistencies? And, finally, and importantly, the question arises of the costs that a
publishers’ right may impose on others. What will these be, and how can they be
justified? Any justificatory argument will have to look beyond the fact that publishers are
currently treated in an unequal way. Hence, the equality argument is not, by itself,
sufficient reason to establish a publishers’ right.
The free riding argument
The free riding argument for a publishers’ right is based on the assertion that online re-
distributors of news are deriving an illegitimate benefit from the actions of news
producers: they are, to quote the nineteenth century English judge North J, reaping where
they have not sown. Whether this is the case or not is an issue susceptible to empirical
proof, but it appears that this has not yet been unequivocal.
What should one do in the absence of an unequivocal answer? It is the disruptors, the
online re-distributors of news, who bear the burden of proving their actions amount to
promotion rather than substitution. If they are unable to do so, then a publishers’ right
may be appropriate under the free riding argument.
However, there are some caveats to this conclusion. One is that online redistribution of
news may be a different market, and that would undermine the argument that a
publishers’ right would be appropriate. Another is that what the evidence does show, is
that there are differences between the interests of various publishers, and this may result
in different answers in respect of different publishers. This means there is an inherent risk
that a publishers’ right may skew the market in favour of larger players. This is a
significant concern, particularly for those who value media plurality and diversity.
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5
It is not clear, therefore, that the free riding argument provides a compelling case for a
publishers’ right, without further evidence.
The natural rights argument
The natural rights argument for a publishers’ right is persuasive, insofar as valid, as
labour, skill, judgment and creative choices are involved in the production of an edition
of published news. However, there are cogent reasons to be wary of a publishers’ right,
nonetheless. A first arises because of the integral nature of published news to a
democratic state. This connection exists because news is seen as a powerful force in a
democracy, and that means that it is advisable for policy makers to think long and hard
before increasing any protection afforded to news, including by means of a publishers’
right that might entail greater control over information.
Moreover, the natural rights argument for a publishers’ right is undermined by the
common practice of news publishers frequently not to respect any natural rights that
might exist in news that are possessed by other publishers. And finally, even if the
natural rights argument for a publishers’ right is viable, it should only lead to a limited
and restricted right, as can be the case with other natural rights arguments.
On balance, intervention to benefit the commercial news industry is merited, but a
publishers’ right has not been demonstrated to be an appropriate way to intervene to do
so.
Other issues
These concerns about the absence of a specific text lead to some final necessary
observations, sketching out some further difficulties related to the wording of any
publishers’ right that haven’t been canvassed so far. The first relates to definition, the
second to duration, and the third to the wider doctrinal context into which any publishers’
right must fit.
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Table of contents
Executive Summary .......................................................................................................... 2
The incentive argument .................................................................................................. 2
The equality argument .................................................................................................... 3
The free riding argument ................................................................................................ 3
The natural rights argument ............................................................................................ 4
Other issues ..................................................................................................................... 4
1 Introduction ................................................................................................................... 7
What’s being considered? ............................................................................................... 7
How will it be considered? ............................................................................................. 7
Four arguments for a publishers’ right ........................................................................... 9
2 The incentive argument – ‘exposing wrongdoing’ or publishing ‘ordures’? ......... 10
The argument ................................................................................................................ 10
News is a democratic as well as an economic good ................................................. 10
The economic difficulties of commercial news publishers ...................................... 11
The need for incentives in the commercial production of news ............................... 12
Causes of the decline ................................................................................................ 14
How might a publishers’ right help? ........................................................................ 16
Why might a publishers’ right be appropriate? ........................................................ 17
Summary ................................................................................................................... 19
Counter-arguments ....................................................................................................... 19
Challenging the democratic argument ...................................................................... 19
Challenging the notion that the news business is not thriving .................................. 21
Challenging the idea that a publishers’ right should be part of the solution ............ 25
Evaluation ..................................................................................................................... 30
The challenge to the democratic assumption ............................................................ 31
The challenge to the notion that the news business is not thriving .......................... 37
The challenge to the idea a publisher’s right should be part of the solution ............ 40
Conclusion .................................................................................................................... 43
3 The equality argument ................................................................................................ 45
The argument ................................................................................................................ 45
HP v Reprobel ........................................................................................................... 47
Counter arguments ........................................................................................................ 47
Truly similar? ............................................................................................................ 48
More inconsistencies will be created ........................................................................ 49
The costs this will incur ............................................................................................ 51
Conclusion .................................................................................................................... 55
4 Free riders – ‘reaping where they have not sown’ ................................................... 57
The argument ................................................................................................................ 57
Counter arguments ........................................................................................................ 59
Promotion or substitution? ........................................................................................ 59
A new commercial activity? ..................................................................................... 64
Conclusion .................................................................................................................... 66
5 Natural rights argument – news, coal, and cabbages ............................................... 67
The argument ................................................................................................................ 67
The strong version .................................................................................................... 68
5
7
The weaker version ................................................................................................... 68
Counter arguments ........................................................................................................ 69
The unattractive idea of news as property ................................................................ 70
The implications of mutual copying ......................................................................... 73
The limits of the notion ............................................................................................. 74
Conclusion .................................................................................................................... 75
6 Conclusion .................................................................................................................... 77
The four arguments, considered separately .................................................................. 77
The arguments, aggregated ........................................................................................... 78
Other problems with a publishers’ right ....................................................................... 78
Problems of definition .............................................................................................. 78
Problems of duration ................................................................................................. 80
Other doctrinal concerns ........................................................................................... 81
Appendix: Some prominent relevant copyright-related cases ................................... 83
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1 Introduction
What’s being considered?
This is a discussion about commercial news production, and copyright-related laws in
Europe. It is a response to the consultation opened by the European Commission in
March 2016 (‘the Consultation’) about whether to create an EU-wide neighbouring right,
in the copyright family of intellectual property rights, that will benefit publishers (‘the
publishers’ right’).1
Any such right would be the latest in series of similar developments in many countries
around the world, as there have been a number of copyright related interventions
designed to benefit commercial news producers.2 These legal interventions have included
litigation and legislation, and negotiation that has taken place against the threat of legal
action. Such interventions have been prompted by a variety of factors, including the
decline in fortunes of many parts of the commercial news industry in many parts of the
world, and the rapid growth of online re-distribution of published news. The suggestion
that an EU publishers’ right might be appropriate can be ascribed to similar factors.
These will be discussed in more detail below.
However, the foregoing interventions differ from the proposed EU publishers’ right in a
number of ways. One is that the Commission is consulting on whether to create a right
that is wider than those seen elsewhere. As well as proposing the idea of a right to benefit
news publishers, it is also considering whether to adopt a publishers’ right that will
benefit publishers in general.3
The legal interventions in other countries – notably Germany and Spain - have been
deeply contentious.4 It should be no surprise, therefore, that the idea that there should be
an EU publishers’ right –whether confined to news publishers or of wider scope - is also
contentious. This work is intended to contribute to this debate, and evaluate the proposed
publishers’ right.
How will it be considered?
This paper focuses on the question of whether a
news publishers’ right is appropriate.
This is because the analysis draws on a two-year study funded by the AHRC, entitled
Appraising Potential Legal Responses to Threats to the Production of News in a Digital
1 European Commission, 'Public consultation on the role of publishers in the copyright value chain and on
the 'panorama exception' (2016) <https://ec.europa.eu/digital-single-market/en/news/public-consultation-
2 A selection of cases can be found in the appendix. Legislation was introduced in countries such as
Germany in Spain, and was discussed session 2 of the Amsterdam Conference – see text to and n7
3 The differences between news and other publishers will be discussed in the text to nn 8, 44, 91, 196
4 These were discussed in session 2 of the Amsterdam Conference.
7
9
Environment, which concentrated on the position of news publishers.5 Hence when we
discuss a ‘publisher’s right’ in this paper, we are only to referring to a news publishers’
right. The Principal Investigators were Professors Lionel Bently and Ian Hargreaves, and
the Research Associate was Dr Richard Danbury. This final report was the work of Dr
Danbury, and he gratefully acknowledges the enormous help and assistance he has
received, while owning that any errors or omissions remain his responsibility. It does not
necessarily reflect the views of Professors Bently or Hargreaves.
This study consisted of extensive primary legal and interview-based research; and
secondary research into sociological, economic, historical and other materials. This was
supplemented by a series of workshops and a public conference. In terms of the primary
interview-based research, at least thirty-five people contributed, from eight different
jurisdictions: UK, Denmark, Belgium, Germany, Finland, Italy, Spain, and the USA. The
interviews were semi-structured, designed to discover the views of the interviewees on
the nature and extent of any difficulties suffered by the commercial news industry, and
the merits of any copyright-related policy response to these. Those who contributed
publicly include representatives from, Cutbot, NLA Media Access,
The Guardian, News
UK and RELX. Many others contributed privately, including other news publishers,
online redistributors of news, academics, practitioners and policy makers.
A semi-public workshop was held at the Institute of Advanced Legal Studies in London
on 3rd November 2015, a summary of which can be found online.6
Private meetings and
workshops took place in the USA from the 10th to the 13th November 2015, and a public
conference was held at IViR at the University of Amsterdam on 23rd April 2016
(the
‘Amsterdam Conference’). A recording of the Amsterdam Conference, and a transcript
can be found online. 7
Three unpublished working papers were prepared: a comparative study of copyright-
related legal interventions that focussed on Denmark, Germany and Belgium; an analysis
of prominent sociological and communications studies literature that considers the place
of commercial journalism and its contribution to democracy in digitally networked
world; and a comparative analysis of freedom of speech and copyright and related laws in
the US, EU and ECHR. A number of presentations were delivered at a variety of
conferences based on this work, in the UK, Italy, America and China. The feedback that
was received from these was incorporated into our work.
5 Centre for Intellectual Property and Information Law University of Cambridge,
<http://www.cipil.law.cam.ac.uk/research/appraising-potential-legal-responses-threats-production-news-
digital-environment-ahrc> accessed 13 June 2016
6 R Danbury, 'Evaluating legal responses to threats to news in a digital environment , London workshop' (7
January 2016) <http://ials.sas.ac.uk/research/infolawcentre/docs/R-Danbury-Public-Summary-of-London-
Workshop1.pdf>
7 Centre for Intellectual Property and Information Law University of Cambridge, 'Conference: Copyright,
related rights and the news in the EU: Assessing potential new laws' (2016)
<http://www.cipil.law.cam.ac.uk/seminars-and-events/conference-copyright-related-rights-and-news-eu-
assessing-potential-new-laws> accessed 13 June 2016
8
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Four arguments for a publishers’ right
From this research, four main normative arguments emerged for a news publishers’ right.
These are:
• it will provide a necessary incentive to the commercial production of
news, an activity that is valuable to a democratic society;
• commercial news publishers are treated unequally by EU copyright law,
and a publishers’ right will resolve this;
• online re-distributors of published news are free riding on the effort of
commercial news publishers, and a publishers’ right can be expected to
restrain this;
• commercial news publishers have a natural right to the news they publish,
and such rights are being breached by online re-distributors of news: a
publishers’ right can be expected to protect them.
The paper evaluates these arguments, and finds that, on balance, intervention to benefit
the commercial news industry is merited, but these arguments do not establish that a
publishers’ right is an appropriate way to intervene.
There are other arguments for and against a publishers’ right, and other issues that a
publishers’ right engages. Many will turn on the exact nature and wording of any right, as
there are significant practical problems with a publishers’ right, and doctrinal debates are
to be had about whether such a right is in accordance with regional and international law.
But the Consultation did not provide a legal text to consider, and so it is difficult to
engage with these questions. A short summary of the main further issues to consider will
be given at the end of the paper.
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2 The incentive argument – ‘exposing wrongdoing’ or publishing
‘ordures’?
The incentive argument is perhaps the most important argument for a publisher’s right
that emerged from our research. It is worth considering in detail.
In essence, the argument observes the turmoil through which the commercial news
industry is going, and suggests that there is reason to fear that the market will not, if left
to itself, provide sufficient incentive for news producers to provide, in sufficient quality
and quantity, the news that a democratic society considers valuable. It is therefore
appropriate to intervene to create an incentive to produce news, and it can be appropriate
for this intervention to be by means of the creation of a publishers’ right.
The incentive argument provides a
prima facie case for a publishers’ right, but there are a
number of ways in which it has been challenged. These will be described, and then
evaluated. The conclusion is that the argument provides a quite strong argument for
intervention to assist the commercial news industry, but only weaker support for the idea
that this intervention should be by means of a publishers’ right.
The argument
News is a democratic as well as an economic good
The argument starts with the assertion that commercial news generation is of great value
to a democratic society. Such an assertion is a relatively common one to make, and has
been advanced since at least the eighteenth century. It is the headline quote, for example,
on the website that a group of European publishers have set up to explain why they think
a publishers’ right is needed, www.publishersright.eu. This begins by citing Thomas
Jefferson, who famously wrote in 1787: ‘were it left to me to decide whether we should
have a government without newspapers, or newspapers without a government, I should
not hesitate a moment to prefer the latter’.8
The website goes on to say:
The role of press publishers remains inextricably linked with the vital role that a
free and independent press plays in democratic societies: enabling the open
exchange of information and opinions, exposing wrongdoing and corruption,
holding public officials accountable in the public eye, publicising difficult or
important matters that need attention or scrutiny, and helping citizens to make
informed decisions often creating communities of interest or concern.
The relevance of this for a discussion about a publishers’ right is that it emphasizes that
when we consider the commercial news industry, we ought to be aware that political
8 European Publishers Council and others, 'Publishers' Right in a Digital Age' (2016)
<http://www.publishersright.eu> accessed 13 June 2016
10
12
issues of fundamental importance to the democratic structures of EU Member States are
engaged, as well as mere economic considerations about a content creation industry. Any
damage to commercial news publishers may result in damage to the fundamental
democratic structures that make up our societies. The desire to avoid such damage can
lead to a strengthened case for intervention to assist the commercial news industry,
including intervention by means of a publishers’ right.
The economic difficulties of commercial news publishers
The argument continues by emphasising that the commercial news industry is
increasingly finding it difficult to thrive. These difficulties, particularly those of the
legacy newspaper industry, are widely known. True, sceptics have asserted that claims
that the industry is in difficulties are nothing new, as commercial journalism – like many
other activities – regularly claims to be beset by crisis.9 But there is now more substance
to the claim than there has been in the past.
Evidence of the decline in the fortunes of the European commercial news publishing
industry was presented at length in the first session of the Amsterdam Conference, an
account of which can be found online.10 But it is useful to highlight some of the points
made here, to help establish the incentive case for a publishers’ right.
The decline in the fortunes of the commercial news industry has been dramatic. In 2010,
the average operating margin for publicly reporting US news companies, for example,
had fallen from a high of 20% to 5.6%.11 And a similar picture emerged in many parts of
the commercial journalism industries in Europe. In the UK, for example, a recent survey
found that in 2011, newspaper groups had lost about £2 billion of revenue over five
years, down to £6 billion.12
The Guardian has made losses every year since 2004;13 and
the proportion of operating profit the Daily Mail and General Trust makes from
newspapers fell from 86% in 1996 to 27% in 2009.14
9 D Ryfe,
Can journalism survive? : an inside look at American newsrooms (Polity, Cambridge 2012) for
example, cites an article in the
Los Angeles Times article that argued that ‘newspapers [were] challenged as
never before’, and asked ‘are you holding an endangered species in your hands?’. It was published as long
ago as 1976. M Welch, 'When Losers Write History' in R McChesney and V Pickard (eds),
Will the Last
Reporter Please Turn out the Lights (The New Press, New York, London 2011) notes predictions of the
industry’s imminent demise from 1999.
10 N 7
11 G Ellis,
Trust ownership and the future of news : media moguls and white knights (Palgrave Macmillan,
Basingstoke 2014) 16.
12 Mediatique,'A Report for Ofcom (Annex 6 to Ofcom’s advice to the Secretary of State for Culture,
Olympics, Media and Sport)' (Mediatique, London 2012). Globally, newspaper advertising revenues fell by
22% between 2008 and 2012: Ellis (n 11) 17.
13 Ellis (n 11) 184
14 The underlying figure - £75 million – was the same in both years, which as Ellis observes, shows how
the DMGT has diversified away from news publishing. Ibid.
11
13
In some cases, these numbers may appear to be still relatively healthy, but in others they
are much less so.15 And, overall, the decline in profitability has led to or is associated
with a number of consequences, many of which pose cause for concern for the
contribution that commercial journalism makes to democracy. It is, for example, linked
to falling sales and circulation,16 declining numbers of journalists employed by
commercial news organisations,17 a net loss of titles,18 and, ultimately, the insolvency and
bankruptcy of many companies.19 Regional commercial journalists working in both
newspapers and radio have been hit particularly hard.20 Financial difficulties are likely to
restrict the ability of commercial news organisations to undertake expensive, but largely
unprofitable, journalistic activities such as investigative work.
Alan Rusbridger, former editor of
The Guardian, recently summed up the difficulties the
commercial news industry is facing when he wrote to his former staff in May 2016:
We all currently do our journalism in the teeth of a force 12 digital hurricane.21
Studies have found similar patterns in other parts of the news market in many Member
States in Europe.22 However, it is true that there are significant differences between the
businesses in different European countries, and between different sectors of commercial
news publication, and that the extent to which the commercial news industry is suffering
has been challenged. These points will be discussed below.23
The need for incentives in the commercial production of news
The decline in the fortunes of the commercial news industry is likely to remove a key
incentive that motivates the production of news by the commercial news industry.
15 J Herrman, 'Media Websites Battle Faltering Ad Revenue and Traffic'
New York Times, (17 April 2016)
<Media Websites Battle Faltering Ad Revenue and Traffic> accessed 13 June 2016, R Tofel, 'The sky is
falling on print newspapers faster than you think' (Medium.com 20 January 2016)
<https://medium.com/@dicktofel/the-sky-is-falling-on-print-newspapers-faster-than-you-think-
c84a2f9a9df4#.3o4eba9pk> accessed 13 June 2016
16 I Hargreaves,
Journalism: A Very Short Introduction (Oxford University Press, 2014) 112, 121. For a
more detailed discussion, see text to n 111.
17 Ibid. 111; R Levine,
Free Ride: How the Internet is Destroying the Culture Business and How it can
Fight Back (Vintage, London 2012) 111; Ellis 29, 120
18 The
Press Gazette reports that between 2005 and 2011, 242 local newspapers in the UK closed, and only
708 new titles launched: Hargreaves 112; and in the UK in 2003 there were 1165 regional and local titles,
but only 1054 in 2013: Ellis 30.
19 Ellis 16, 31 – 32.
20 Ibid. 161, 162, 230
21 M Champion, 'Alan Rusbridger Steps Down As Chair Of The Guardian’s Owner' (BuzzFeed 13 May
2016) <https://www.buzzfeed.com/matthewchampion/alan-rusbridger-steps-down-as-chair-of-the-
guardians-owner?utm_term=.hg0m86705#.rr2YaV0wL> accessed 13 June 2016
22 DAL Levy, R Nielsen and Reuters Institute for the Study of Journalism.,
The changing business of
journalism and its implications for democracy (Reuters Institute for the Study of Journalism, Oxford 2010)
23 Eg, text following nn 61, 122, 131
12
14
Without such an incentive, the commercial news industry will be less likely to produce
the type of news, or the amount of news, that is valuable in a liberal democracy.
News as a merit good
One important reason for this is because news, particularly general interest
democratically salient news, is generally conceived to be a merit good.24 This means that
this type of news has a value to society that is greater than the price that people are
prepared to pay to read or watch it. Moreover, readers are seldom prepared to pay a
sufficient amount to cover the cost of publishing the news that a democratic society
considers valuable.
This means that, if left to the market alone, news would be produced in lesser quantities
than would be optimal. Some way of incentivising the production of news is therefore
required, above and beyond mere payment by customers.
There have been many methods by which the merit good problem has been addressed by
commercial news producers. One, not related to subsidy, has been the technique of
bundling different types of news together into a package, so they can cross-subsidise each
other.25 But there have also been overt and covert subsidies provided by many states to
news production. The US, for example, provided postal subsidies, and many countries
have provided zero rating for newsprint for tax purposes, and distributed valuable
electro-magnetic spectrum to news broadcasters for free.26
The two sided market of sales and advertising
But one of the most important means of subsidising news has, for the past 300 years or
so, been advertising revenue. In the US, it was said that Wal-Mart funded the Bagdad
bureau,27 and the point is also valid in Europe.
24 See generally the work of Picard, but a good introduction can be found in chapter 6 of L Hitchens,
Broadcasting pluralism and diversity : a comparative study of policy and regulation (Hart Publishing,
Oxford 2006).
25 Discussed in text to n 95
26 Silberstein-Loeb,
The International Distribution of News: The Associated Press, Press Association, and
Reuters, 1848-1947 (Cambridge University Press, Cambridge 2014). An account of action taken after 1927
League of Nations Conference of Experts of the Press, UNESCO memo, Paris 12/10/1947 says: “The
Association of Journalists accredited to the League of Nations pointed out that the press could not live on
its sales and that it constituted a real “public service” in the same way as teaching (but without being able
to avail itself, like the latter, of any form of subsidy); the Association accordingly suggested that the answer
to the problem be sought in a systematic lessening of the financial demands made by the State on the press
(postal and telegraphic charges, duty on paper, taxes, etc.).” H Tworek, 'Protecting News before the
Internet' in R John and J Silberstein-Loeb (eds),
Making News: The Political Economy of Journalism in
Britain and America from the Glorious Revolution to the Internet (OUP, 2015)
27 C Shirky, 'Newspapers and Thinking the Unthinkable' in R McChesney and V Pickard (eds),
Will the
Last Reporter Please Turn out the Lights (The New Press, New York, London 2011); Levine; G Brock,
Out of Print (Kogan Page, London 2014) 99; Hargreaves 110.
13
15
Advertising has underpinned the profitability of much commercial news since at least
1624, when the first English language news publication carried an advert.28 That event
heralded the development of the two-sided market that is characteristic of news
publishing in many countries throughout the Europe, and much of the rest of the world.29
Publishers sell news to readers, and readers’ attention to advertisers.30
This is a business model that has been extraordinarily robust. It has been the dominant
model until recently, yet was well established by the early part of the eighteenth century,
and is described in an English pamphlet from 1728:
[newspaper proprietors] are paid on both hands; paid by the advertisers for taking
in Advertisements; and paid by the coffee men for delivering them out: which (to
make use of a homely comparison is to have a good dinner every day, and be paid
for eating it ‘Here’s luck, my lads!’ Never was there so fortunate a business31
Causes of the decline
There are a number of reasons for the decline in the fortunes of the commercial news
industry, some of which are less relevant to the arguments for a publishers’ right. For
example, it has been proposed that the decline may well be down to sociological and
demographic changes, as younger people lose the habit of buying and consuming news.32
It is difficult to see how a publishers’ right could reverse any such change.
Some effects of digitization and the Internet
Other factors, though, are more relevant to a publishers’ right, and relate to the Internet
and its associated technologies. The publishersright.eu website explains:
technology has radically changed where our readers find and read our content –
with profound consequences for the future viability of professionally produced,
independent quality journalism and general press content. With a growing shift
from print to digital, the problem of funding an independently edited digital press
is increasingly challenging. Indeed online press is in most cases still cross-
subsidized from the print side of the business where sales and advertising
revenues are declining.33
28 RB Walker, 'Advertising in London Newspapers, 1650 - 1750' (1973) 15:2 Business History 112
29 Although the exact proportions of revenue made up from subsidy, subscription and advertising vary from
country to country, as will be discussed later: text to n 61.
30 The economics of broadcast news are different, as they can include a third side to the market – the selling
of broadcast formats to third parties.
31 A Coffee-Man,
The Case of the Coffee-Men of London and Westminster. (G Smith (1728), Gale ECCO
Print Editions (2010), London 1728), 16
32 Mediatique, Ryfe 34 f.
33 European Publishers Council and others, (accessed
14
16
Part of the problem, from the point of view of news publishers, is the fact that digitization
makes the perfect copying and re-distribution of published news a quick and easy task.
This has had a number of effects. It disrupts, for example, the first to market advantage –
the scooping by one paper of its rivals – from which news publishers have traditionally
made money, because digital redistributors can immediately redistribute news content
produced and placed online by news publishers. This affects sales and subscription
revenue.
But digitization also disrupts advertising revenue. It means online redistributors of news
can attract audiences interested in news without producing their own content. The
attention of these audiences is valuable, as online operators can sell it to advertisers.
Online redistributors can attract an audience by carrying news in general, and because
they carry material published by, say,
the Guardian, or
Die Welt, or
El Mundo. The
different brand reputation of the news publisher can alter the type of audience that a site
can attract, and different audiences will have different values to advertisers. And a site
can benefit even if it doesn’t sell advertising against news content, because it may enjoy a
boost to its perceived utility because it carries news. Being seen as useful will, in turn,
mean a site will attract more attention, and this – as has been seen – is a valuable
commodity.
Online redistributors can also use Internet-related tools to collect information about the
preferences of the audience who are attracted by news, by analysing their online
behaviour. This is particularly valuable information, which has been called ‘the new oil’,
for which advertisers will pay a premium. (This is a controversial development that has
been called ‘surveillance capitalism’, but the controversy is not immediately relevant to
the discussion about a publishers’ right.) If the audience encounters published news on
the site of an online redistributor, rather than that of a news publisher, then it will be the
online redisbributor who will enjoy this benefit.
This extraction of value from commercial news publishers is, as the Commission
economist Bertin Martens explained at the Amsterdam Conference, part of a wider trend.
It’s indeed very hard to beat platforms and especially large platforms when it
comes to the revenue and the attraction that they offer and so there is the risk and
we’ve seen that in many industries, not only in newspapers is that content
providers, the ones who actually publish or produce the content, whether it’s
digital services, media services or even goods, they become a sort of almost a
subcontractor to the platform. And the platform has a lot of leverage on the prices
and on the margins they extract from them, we see that in the hotel business, we
see that in airline bookings, we see that in so many industries and the same is
happening to the newspaper industry.34
34 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference,
Bertin Martens, Session 3, transcript 42
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How might a publishers’ right help?
The incentive argument says that a publishers’ right may help provide a flow of revenue
to incentivise the production of news that society considers valuable. There are a number
of ways this may happen.
A publishers’ right, it was argued in our research, could help news publishers control the
use of the news they produce. They could control when and under what conditions online
digital operators could redistribute it, where this is not already regulated by copyright and
related rights. It might thereby provide a means of obtaining a share of sales and
advertising revenue that flows to online redistributors of news. A publishers’ right could
in essence be an extra card that publishers can use when negotiating with Internet search,
aggregation, social media and other companies.
Other reasons why a publishers’ right might help that were highlighted in our research,
which relate to enforcement. So, for example, a news publisher in the UK described the
difficulties in using copyright to enforce their rights in a particular situation. This occurs
when they distribute their news online behind a paywall, and when media monitoring
organisations or others scrape the collected material on their site without permission.
Such an action potentially results in a variety of authors and copyright owners having
their rights infringed, in respect of a wide range of copyright material. It can be difficult
to establish that the publisher is entitled to sue for each individual breach of copyright,
when pursuing the infringer who has scraped the publisher’s collected material. If there
were a publishers’ right, the interviewee argued, enforcement would be much easier.
Such issues of enforcement are even more important in Member States without a work
for hire doctrine. Here, it can be even more difficult for a publisher to establish that they
are entitled to sue for breach of copyright, when they publish a variety of different
copyright works. A German interviewee explained the point in this way:
In the continental tradition, copyright comes into existence to the creator, and
then is transferred to the publisher. There is no idea of work for hire, or
producer’s copyright, as there is in the UK. As a media publisher you’ll have
journalists as employees – and these can fully transfer their title by a buyout of
their copyright. This isn’t so difficult to show. The publisher has exclusive rights
for this content. But a publisher will also have thousands […] of freelancers, and
a publisher will get non-exclusive rights when you publish their material. So as a
defence for the claim against someone like Google News, the defendant says the
rights that are being enforced are non-exclusive right. To win such a claim, you
are forced to give evidence in each case of claim of title. This is impossible if
there are, for example, 22,000 articles.
A publishers’ right can be expected to help resolve this difficulty by simplifying the
process of proving that a publisher has title to sue, when large amounts of published
material is redistributed by, say, Google News.
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Why might a publishers’ right be appropriate?
Not only might a publishers’ right be useful, but it might be appropriate. After all, part of
the problem as characterised above has arisen from the digital duplication and
redistribution of news published by commercial news organisations, which
prima facie invokes issues of copyright.
This is certainly the view of some news publishers. At the Amsterdam Conference, Matt
Rogerson of the
Guardian, placed copyright and related rights at the heart of the matter.
He considered that online redistributors of news have been able to flourish because
publishers have not in the past sought to enforce their IP rights in the content they
publish.
We have rights and we could enforce them if we decided that we wanted to. It’s
probable, I think, that in doing what they’ve done over the past decade or so, the
caching of articles and the distribution of articles, Google has, you know, it’s
infringed rights under UK copyright law but it’s a conscious decision by ‘The
Guardian’ not to pursue against infringement because they have, kind of,
generated this enormous reach. I think what’s going on in Europe is publishers
wanting to have similar rights; the ability to go after people who infringe
copyright in the same way as UK publishers, Irish publishing and Dutch
publishers are able to35
This view, though, is contentious. Google and others have denied that it is correct, as a
matter of doctrine, and have fought legal actions on these grounds in various Member
States. For example, Google fought an action in respect of news aggregation in Belgium,
arguing that their actions did not open them up to copyright liability. They argued
(amongst other things) that the news material aggregated on their site was not covered by
copyright, that they were not performing infringing acts when they aggregated published
news, and that even if the material was copyright and they were infringing, that they were
protected by one of the copyright exceptions.36 Similar disputes involving copyright and
related issues have taken place in a variety of Member States, including France, Sweden,
the UK, Germany, Italy, and Denmark.37
In many of these disputes, and on many of these issues, Google lost. Nonetheless,
Google’s position has been strengthened somewhat by some recent decisions by the
CJEU on the question of what particular acts performed online are regulated by
copyright. Prominent amongst these is the case of
Svensson v Retriever Sverige AB,38
which found (in very general terms) that hyperlinking to a copyright protected work was
not necessarily an act that infringed copyright. This, on balance, can make it more
35 Ibid., session 1, transcript 9.
36
Google v Copiepresse Presented 11/5/2011, Cause List No: 2007/AR/1730 (Court of Appeal of
Brussels, 9th Chamber)
37 The appendix lists some of these.
38
Svensson v Retriever Sverige AB C-466/12, [2014] Bus LR 259, [2014] ECDR 9
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difficult for news publishers to argue that some of the actions of online redistributors of
news are infringing.
There are other decisions that are also relevant to this issue.39 It is not necessary for
present purposes to describe these, as the point is that they confirm that copyright – and
so a publishers’ right – might be an appropriate tool to use here, to help assist news
publishers.
Indeed, this appears to be the view of Commission, because in December 2015, they
issued a Communication that identified copyright and related laws as one of the sources
of the difficulties in which news publishers find themselves.40 The Communication
distinguished three aspects to this.
• The first related to the definition of certain acts performed online that are
protected by copyright. These are the rights of ‘making available’ and
‘communication to the public’. The Commission indicated that it considered that
there are grey areas around these concepts, particularly the ‘communication to the
public’ right. They held that this ambiguity created unwelcome uncertainty both
for Internet users, and for participants in the market. The ambiguity for news
producers and online distributors of news is said to be whether in an online
context, ‘the basic principle of copyright that acts of exploitation need to be
authorised and remunerated’.41
• The second area that the Commission see as highlighted by this issue is whether
the current set of rights recognised by EU law is appropriate. This is on the basis,
the Commission indicate, that ‘for news aggregators … solutions have been
attempted in certain Member States, but they carry the risk of more fragmentation
in the digital single market.’42
• A third area the Commission describe as relevant is the question of the
applicability of the exemptions from liability contained in the e-Commerce
Directive,43 and more generally the view by some internet platforms that they are
not engaging in copyright-relevant acts.
39 For example,
BestWater v Mebes C-348/13 .
40 European Commission,'Communication from the Commission to the European Parliament, the Council,
the European Economic and Social Committee and the Committee of the Regions: Towards a modern,
more European copyright framework' (European Commission, 2015)
41 This has been disputed: see text to n 74
42 This is relevant as it may provide a competency for EU action – see text to n .221
43 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic commerce, in the Internal Market (Directive
on electronic commerce)
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These issues, the Commission said, would inform its consideration of how value is
created and shared by new forms of online distribution of copyright-protected works. In
particular, they would inform the evaluation of whether action is needed on the definition
of the rights of ‘communication to the public’, and ‘making available’, and whether any
action ‘specific to news aggregators is needed’.
The mooted publishers’ right is another way to address these issues.
Summary
In summary, then, there is a
prima facie incentive case for a publishers’ right. This is on
the grounds that that news is a valuable commodity in a democracy, that the commercial
news industry is suffering a serious decline in its fortunes, that the general interest
democratically salient news has always needed a form of subsidy because it is a merit
good, that in the past this was frequently supplied by advertising revenue, that one reason
for loss of advertisement revenue and the rise of online re-distributors of commercial
news has been aspects of the EU’s copyright and related rights law, and so copyright and
a publishers’ right can be seen to be a useful and appropriate response to the difficulties
in which news publishers find themselves.
Counter-arguments
Our research uncovered a number of counter-arguments that can be advanced against the
incentive argument, of which three of the more significant will be described here.
The first critiques the case that there is a heightened reason to intervene because news is
a democratic good. The second argues that any economic difficulties through which the
news industry are going are insufficient reason for an EU publishers’ right. The third
challenges the notion that, even if there are difficulties and these engage democratic
concerns, this should have anything to do with copyright or related laws.
Challenging the democratic argument
The first counter-argument is that news publishers have overplayed the risk of damage to
democracy that may occur, if they are not provided with assistance. One reason for this is
because the alleged link between the commercial news industry and a healthy democracy
is not as strong as the industry asserts. Indeed, the link between the commercial press and
a functioning democracy, as well as being proposed since the eighteenth century, has
been challenged since about that time. Thomas Jefferson, who it will be remembered is
cited on the publishers’ website that defends the need for a publishers’ right, was also
highly critical of the press. In 1814, he wrote to a correspondent, Walter Jones:
I deplore… the putrid state into which our newspapers have passed, and the
malignity, the vulgarity and the mendacious spirit of those who write for them…
[t]hese ordures are rapidly depraving the public taste, and lessening its relish for
sound food. As vehicles of information, and a curb on our functionaries, they
have rendered themselves useless, by forfeiting all title to belief. 44
44 LW Levy (ed),
Freedom of the Press from Zenger to Jefferson (Bobbs-Merrill Company, Inc, 1966) 373.
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21
This critique of the case about the strength of the links between a viable commercial
news publishing industry and a healthy democracy resonates today, and was expressed at
the Amsterdam Conference. Professor Naughton asserted that:
the public sphere is one of the most important things about a liberal democracy. I
think we should, as it were, feed one red herring immediately to the nearest
available cat and that is the idea much put about by publishers, especially by giant
multimedia corporations, that they are great contributors to the public sphere.
By contrast, what he thought was needed is: ‘truthful, high quality journalism … and
when people fret, as indeed they have even today here, about the future of newspapers,
they are confusing form with function and it’s the function that’s really important’.45
Others attending the conference agreed, and indicated that if we are to intervene with
copyright, that we should identify more precisely what we want to incentivise.
I’m interested in thinking about whether or not the ultimate public good is over
the generation of new information and how do we achieve that46
I think we all have to make sure that there is enough quality journalism to apply
the needed check on power, whether it’s in the hands of elected officials or
private sector or whoever else. But the question is, how do you get there?47
I personally am open to public support, particularly for investigative journalism,
which everyone from Clay Shirky to, well, most people in this room, would
regard as the most important thing that media does other than facts and opinion
which are free48
Outside the Conference, this is an argument that has been advanced by others. Benkler is
one of the most prominent proponents of this idea, and has argued that one may not need
professional commercial news organisations at all, so there is no need for any
intervention . This is because, he argues, networks of individual citizen reporters can
replicate the useful democratic functions currently undertaken by news publishers.
Benkler calls this the ‘networked public sphere’. 49
That was a view that was echoed at the conference:
45 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference,
John Naughton, session 4, transcript 60f
46 Ibid., Chris Beall, session 2, transcript 37.
47 Ibid. Marietje Schaake MEP, session 3, transcript 58
48 Ibid. James Mackenzie, session 4, transcript 65.
49 Y Benkler,
The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale
University Press, New Haven 2006)
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The Panama papers was an effort by journalists to collect news that wasn’t really
under the auspices of a single news organisation and I’m interested in the extent
to which the public is still receiving information that it needs to govern itself.
They’re not receiving it all the time from news organisations. They’re receiving
it from other sources and that may not be a bad thing50
But Benkler purses this line further, and argues that interventions, including copyright
interventions, to assist the news publishing industry are not only unnecessary, but will be
positively harmful. This is on the grounds that as they will inhibit the fuller development
of a networked public sphere:
[w]e still stand at a point where information production could be regulated so
that, for most users, it will be forced back into the industrial model,
squelching the emerging model of individual, radically decentralised, and
nonmarket production and its attendant improvements in freedom and
justice.51
If true, these arguments undermine the incentive case for a general publisher’s right. The
weaker version of the argument asserts that we ought not to incentivise all commercial
news publishing, only some of it. A strong version of the argument asserts that we ought
not to intervene at all, as in doing so we damage the prospects of a networked public
sphere – an alternative to the commercial news publishing industry - developing.
Challenging the notion that the news business is not thriving
The second counter-argument against the incentive case for a publishers’ right takes issue
with the notion that the news publishing industry is in sufficient crisis to merit
intervention, by copyright or otherwise. The argument suggests that sufficient incentives
remain to make intervention unnecessary, because the crisis in the industry isn’t as acute
as has been suggested, or is no longer so acute, or is not as acute in all sectors of the
industry, and moreover there are significant differences in how it has been experienced in
different parts of EU.
A number of different claims can be distinguished in this argument.
Excessive profits
The first is that, in the words of the analyst and former journalist John Morton in the
American Journalism Review, perhaps one ought to ‘stop the ax-wielding and accept that
the era of exceptional profitability is over’?52 Professor John Naughton took the same
line at the Conference:
50 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Chris Beall, session 2, transcript 38
51 Benkler 26.
52 Quoted in J Kaye and S Quinn,
Funding journalism in the digital age : business models, strategies,
issues and trends (Peter Lang, New York ; Oxford 2010) 85.
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23
Every time I hear a spokesman for a very large multimedia company, for
example, before the US Senate, shedding crocodile tears about the way in which
this awful internet is doing terrible damage to poor authors living in garrets what
it reminds me of is something that one of my heroes, Samuel Johnson, once said,
a great 18th century British writer and journalist, he said that, “How is it”, he said,
“The loudest yelps for liberty are heard from the drivers of slaves?” He didn’t
use the word ‘slaves’, he used a word that would not be politically correct now,
but that was the point and when I hear publishers complaining about what the
internet is doing to them what I’m hearing sometimes are the complaints of
organisations which are having to get used to the idea that the era of monopoly
rents might be coming to an end.53
If true, this may mean that there is no need to incentivise commercial news, as publishers
are merely experiencing an adjustment of their profit levels to more reasonable levels
more equivalent to those attainable in other industries. It would be better for the news
industry to acclimatise itself to a more sustainable level of revenue, than for there to be
any intervention.54 But it may also mean that, even if the industry is experiencing real
long-term systemic financial trouble, there is a risk that the commercial news industry
may be over-benefitted by a publishers’ right, were one to be designed to re-establish the
excessive profit levels of the past.
A return to profitability
Even if this is not a persuasive argument, some see a publishers’ right as inappropriate
because some news publishers appear to have returned to financial health. To look at
News Corp and the UK for instance, while the company itself recorded an operating loss
of £35m in 2014, its titles the
Times and
Sunday Times and
Sun had returned to profit.
According to the
Press Gazette, the
Times and
Sunday Times reported their first operating
profit since 2001 (£1.7m), and while the
Sun’s revenues were down 5.5% to £489m, this
resulted in an operating profit of £35.6m – though this was down year on year from
£62.1m.55 And the trend may be replicated in other areas, such as local news. In 2013,
Johnston Press, following a debt restructuring in 2009, reported an increase in operating
profit for the first time in seven years.56 Similar evidence can be found in other countries.
Indeed, a questioner at the Amsterdam Conference noted that the German company
Springer Verlag increased their turnover by 8.5% over the last year.57
53 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
' (accessed John Naughton, session 4, transcript 61
54 This is related to the argument for creative destruction, which will be considered below, text to n 84ff
55 <http://www.pressgazette.co.uk/news-corp-records-operating-loss-£35m-down-£51m-profit-company-
spends-£100m-legal-costs-and-msc> accessed 17 December 2014
56 Ellis 32
57 Germany’s Axel Springer, for example, saw revenues rise by 12.7% in the first quarter of 2015: , 'Axel
Springer profits from digital growth in the first quarter' (Axel Springer 2015)
<https://www.axelspringer.de/en/presse/Axel-Springer-profits-from-digital-growth-in-the-first-
quarter_23325474.html> accessed 16 June 2015
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24
Again, there are at least two conclusions that could be drawn from this. The first is that
no intervention is required, because the worst is over, and companies are beginning to
find a route back to profitability. The second is that even if this is not the case for all it is
true for some, and one should be wary of any intervention because it will unduly benefit
profitable companies, despite the laudable intention of assisting others who are
struggling.
Other sectors remain profitable
So far, we have just concentrated on the legacy print industry: but some other sectors of
the commercial news producing industry are also doing rather well. It’s important not to
equate the fortunes of some in the legacy print industry, with the entire commercial
news-publishing sector. The economics of the television, radio and online industries are
different to print, so generalising from the experiences of some in the print industry to
make a case about the whole of commercial journalism is inappropriate.
And some online news organisations, such as
Buzzfeed,
Vice News and
Huffington Post,
are far from being in crisis, but have continued to attract funding.58 Furthermore, there
are salient and important differences in the way money is made in different parts of the
news value-chain, and the fact that news publishing is suffering doesn’t necessarily mean
that news gathering, selection, writing or producing is in difficulty.59 The continuing
vitality of companies that make their money from providing news selecting services may
be taken as evidence of this. If this is so, there is less of a reason to intervene with a
publishers’ right, as other sectors of commercial news publishing with more viable
business models can be expected to step into the breach vacated by legacy print
operators, who are suffering economic difficulties.60 A publishers’ right would be a
mistake, as it would impede this.
Differences between Member States
And even for those legacy print news publishers who have not seen a return to rude
financial health, there are other concerns about a publishers’ right. There is a risk that a
publishers’ right risks over-benefitting industries and sectors in some Member States that
do not need it, to ameliorate the situation for others who do.61
58
Buzzfeed for example, has attracted $70 million of venture capitalist funding: E Bell, 'The Rise of Mobile
and Social News and What it Means for Journalism' in N Newman (ed)
Reuters Institute Digital News
Report 2015 (Reuters Institute for the Study of Journalism, Oxford 2015)
59 A very useful analysis of the different activities can be found in Mediatique,'The Provision and
Consumption of Online News - Current and Future' (Mediatique, 2014)
60 Again, this argument is related to the creative destruction argument, which will be considered below, text
to n 84ff.
61 There is some evidence that the news industries in countries less affected by the crisis have benefitted
from copyright interventions, for example, in China: Staff Reporter, 'Beijing Tightens Copyright
Legislation for News Media' (WantChinaTimes.com 2015) <http://www.wantchinatimes.com/news-
subclass-cnt.aspx?id=20150426000003&cid=1104> accessed 27 April 2015, National Copyright
Administration General Office (China) and Rogier Creemers (tr), 'Notice Concerning the Standardization
of the Online Reprinting Copyright Order' (Creemers, Rogier 2015)
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25
Research has indicated that there are significant and important differences in the revenue
models of commercial news producers in countries in the EU. This was established by
work undertaken by the Reuters Institute for the Study of Journalism in 2010,62 and
continues in the Institute’s annual
Digital News Reports. These track changes in the
business and consumption of news in various countries each year.63
The picture here is complex and changing, but for present purposes, the essential point is
that this work establishes that the division between subscription and advertising – both
legacy print and online - as a source of revenue for news publishers differs in different
countries in the EU. Moreover, there are changing patterns in online reading of news, and
old-fashioned reading of print newspapers in different Member States. This leads to the
concern that any legal intervention, including a copyright related intervention, to assist
the commercial news publishers whose business model is at risk in some parts of the EU,
risks over-benefitting those in other parts of the EU, who have a different revenue model.
This is a particular concern, for example, if the rationale for a publishers’ right is founded
on the need to replace advertising revenue, as the news businesses of some countries in
the EU depend less on advertising, and more on subscription and sales for revenue. A
harmonised publishers’ right is inappropriate, says this argument, given the variety of
business models and news consumption patterns in each Member State.
Reuters’ work on Denmark and Germany can be used to demonstrate this, both of which
have seen legal interventions in the past decade to protect the position of news
publishers.
To take Denmark first, one can focus on 2008, a date that is illustrative as it was in the
middle of the seminal
Infopaq litigation, which dealt with copyright and news
publishing.64 In this year, just over 60% of Danish newspaper revenue came from sales,
as opposed to advertising. This compares with the position in Germany, where sales
contributed around 10% less to total revenue – 50%. (This can also be compared with the
US, where sales amounted to only around 15% of revenue).65 It seems that the extent to
which the protection of news content as a commodity to package and sell, rather than the
protection of the ability to sell advertising to companies on the basis that people read
news material, is of relatively more importance in Denmark than in Germany. Moreover,
<https://chinacopyrightandmedia.wordpress.com/2015/04/17/notice-concerning-the-standardization-of-the-
online-reprinting-copyright-order/> accessed 27 April 2015.
62 Levy, Nielsen and Reuters Institute for the Study of Journalism.
63 For example, N Newman and DAL Levy (eds),
Reuters Institute Digital News Report (RISJ, Oxford
2014).
64
Infopaq v Danske Dagblades Forening C-5/08, [2009] EUECJ C-5/08 (16 July 2009) ,
Infopaq v Danske
Dagblades Forening C‑302/10, [2012] EUECJ C-302/10 .
65 Levy, Nielsen and Reuters Institute for the Study of Journalism. 12.
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far more people read newspapers online in Denmark or downloaded them in 2008 (52%)
than a comparable group in Germany (21%).66
Thus, even if there it is true that news publishing is suffering financial difficulties,
research shows that the mechanisms by which this is happening is different in Denmark
and Germany. Any harmonized EU publishers’ right is likely to be insufficiently
nuanced to recognise these differences, and may over-benefit Danish publishers because
it seeks to assist German publishers who have suffered to a greater extent from the
decline in advertising. The same point, no doubt, can be made in relation to other
Member States.
Challenging the idea that a publishers’ right should be part of the solution
The third argument challenges the idea that even if there is a problem, and even if the
problem is serious because is engages democracy, that a publishers’ right is part of any
solution. It says (amongst other things) that a publishers’ right is inappropriate for such a
task, it would be harmful, ineffective, and would impede the development of a new
sustainable model of funding commercial news.
A publishers’ right would be inappropriate
One senior policy maker we interviewed was sceptical as to whether, even if news was a
democratic good and was going through financial difficulties, copyright should be part of
the solution. They suggested that if the problem is the decline of the business model of
commercial journalism caused by the rise of the Internet, then they were not sure that
there was any reason to bring in a publishers’ right.
This scepticism was shared by
Professor Hugenholtz at the Amsterdam Conference:
realising fully the crisis in which news production, news publishing finds itself in
and it is very serious and I know this industry very well too, it is a very serious
[…] I don’t think intellectual property is going to help us out of this crisis, I really
think we should not even waste our energy thinking along those lines67
There are a variety of reasons that have been proposed as to why one might not look to IP
as part of the solution. One involves the rationales for copyright in a European context.
While some countries might consider it appropriate to use copyright as a tool to
incentivise the activities of news producers, this is not clearly the case in all Member
States. Professor Xalabarder explained:
if we’re going to look at it from a copyright perspective, it should be the authors
who get the remuneration and no-one is talking about them, right, and the
newspapers go to Google and they ask remuneration for them. The authors are not
going to get anything, so if it was really a matter of copyright enforcement, we
would be talking about completely different ballgame here. So, I think that if the
66 Ibid. 27
67 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Bernt Hugenholtz, session 3, transcript 47
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news publishers have some sort of freeriding concern against what Google is doing,
that should be fought in another area, not within copyright, but maybe in fair
competition or whatever else it’s going to be, but not copyright because we’re
distorting it.68
But even if one only considers an entrepreneurial right to be uncontroversial as a matter
of principle, there remain problems. One arises if a publishers’ right is intended only to
encourage journalism that is worthwhile in a democracy, as discussed above. If this is the
case, there must be doubts as to whether copyright or related rights are an appropriate
tool to achieve this.
These doubts again engage questions about the function of copyright and related rights.
Copyright and related rights are generally considered to be a relatively content-neutral
doctrine, in that the nature of the content of a copyrighted work is frequently not relevant
to the fact of copyright protection. (There are exceptions to this broad statement, and the
US Copyright Clause, for example, explicitly envisages copyright being intended to bring
about useful content, and there are content-based restrictions on copyright protection in
the UK.69) However, it can be asked whether it is evident that the function of copyright in
the EU should be to distinguish between 'good’ content, which is to be encouraged, and
bad content, which is not to be encouraged. That seems to be, at least by the account
described earlier, one requirement of a publishers’ right.
A particular reason why it might not is the fact that one is dealing with highly subjective
judgments of what is good and bad content. This is a notorious issue in relation to
journalism, and indeed is a key element in discussions about the appropriate limits of
freedom of speech and the Press. This is not least because opinion is likely to vary as to
whether journalism is good or bad. Harm, for example, and the incurring of it by
journalism, is an insufficient criterion for distinguishing between good and bad
journalism, because many people will be harmed by journalism that may be useful to
society. A famous journalistic aphorism makes the point: ‘news is what someone,
somewhere doesn’t want you to know: all else is advertising’. Indeed, this is a central
problem to the whole of free speech and free press theory and law, and it would be a
brave copyright policymaker that steps into this area unawares.
And there are further doubts about whether copyright would be an appropriate tool, even
if one can be clear what we mean by ‘good’ journalism. Does copyright have appropriate
mechanisms in-built to its doctrine, to be able to police this boundary? Is it, other words,
likely to be an good way of regulating journalism to improve quality? Moreover, is this
something that should be done at an EU level, or is it better achieved by Member States?
And even if a harmonised EU approach is appropriate, are there not other EU tools - such
as the Audio Visual Media Standards Directive, currently under review – which are likely
to be more appropriate, and a better fit for the job?
68 Ibid. Raquel Xalabarder, session 2, transcript 38.
69 For example, s 171(3) Copyright Designs and Patents Act (1988).
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A publishers’ right would be harmful
There are also a set of concerns are about the potentially harmful effects that can be
expected from any change in copyright and related law that is designed to benefit news
publishers. These will be discussed in more detail in the next section,70 but it’s worth
describing them briefly here.
The risk that a publishers’ right may cause harm has been articulated forcefully by the
MEP Julia Reda, who is particularly concerned about the effect of such a right on users
of the Internet. Reda is concerned, amongst other things, that any publishers’ right will
amount to a ‘tax on hyperlinks’, which at best would create a significant financial drag on
the operation of the World Wide Web, and at worst severely hamper the Web’s
operation.71
The publishersright.eu website says that there will be little impact on normal internet
activity, and the Commission have been at pains to emphasise that a publishers’ right will
not amount to a tax on hyperlinking.72 But it is difficult to see whether this will be so
without seeing the text in question. Indeed, if an EU publishers’ right alters the position
established by the CJEU in
Svensson,73 for example,
that would have a dramatic effect on
the operation of the Web, which would be felt beyond the interests of news producers. If
it does not, it is difficult to see how it might bring in sufficient revenue to be useful to
publishers.
Similarly, Reda raises concerns about the case put forward by the Commission as to why
copyright and related rights are
prima facie relevant. She has challenged the notion set
out in the Commission’s December Communication that there is ambiguity about the
concepts of making available and communication to the public, which acts to the
detriment of commercial news producers. Copyright is relatively clear, Reda argues, and
the idea that a publishers’ right may be appropriate to resolve this ambiguity is
misleading.74
A publishers’ right would be ineffective
Even if copyright is appropriate, some argue that will be ineffective. This was the view of
James Mackenzie, one of the founders of a small aggregator called Cutbot at the
Amsterdam Conference:
70 Text to n 146
71 J Reda, 'Ancillary Copyright 2.0: The European Commission is preparing a frontal attack on the
hyperlink' (Reda, Julia 6 November 2015) <https://juliareda.eu/2015/11/ancillary-copyright-2-0-the-
european-commission-is-preparing-a-frontal-attack-on-the-hyperlink/> accessed 11 January 2016
72 European Commission, 'Making EU copyright rules fit for the digital age - Questions & Answers' (2015)
<http://europa.eu/rapid/press-release_MEMO-15-6262_en.htm> accessed 14 June 2016
73
Svensson v Retriever Sverige AB 74 J Reda, 'Reform of Copyright Law in the European Union' (2015) <https://juliareda.eu/2015/12/ancillary-
copyright-open-letter/> accessed 14 June 2016. See text to n 41, above.
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Think about this: we did not cause the decline in newspaper industry revenue.
Squeezing a little bit of revenue out of us won’t save it. Putting us out of business
won’t save the newspaper industry. They need to find their own models ….75
There are figures that validate the claim that a publishers’ right would be unlikely to raise
much revenue. Industry research in the UK, for example, found that ‘[i]n a typical week,
over 13,000 articles from 5 major newspapers are cut and copied into other sites. These
are often professionally run sites supported by advertising and ecommerce services. One
site alone took 488 articles in one week.’76 This, clearly, represents a loss of sales,
attention and therefore revenue to news publishers. A broad-brush indication of how
much this is worth, at least in terms of sales, can be found in the
Meltwater litigation in
the UK, where it was indicated that the licensing of newspaper articles by the members of
the newspapers’ collecting society, NLA Media Access, raised about £20 million per
year. 77 In 2015, the NLA raised a greater amount, £32 million.78
These may not represent the position in all countries in the EU, but it is plausible to
assume that they represent the general scale of revenue that we are dealing with when
considering a publishers’ right. Are they enough to solve the problem? Are they, in other
words, sufficient to re-incentivize the production of commercial news, lost from the
decline in advertising revenue? That is unlikely. They remain small beer given the scale
of revenues involved in commercial news production. For example, the entire £32 million
raised by the NLA in 2015 would just about have covered the losses incurred by the
Guardian’s newspaper division in 2012-2013.79
The concern about the efficacy of a publishers’ right was raised at the Amsterdam
Conference, when a comparison was made with the utility of the broadcasting right:
Another interesting thing is that the neighbouring right of the broadcasters does
not bring them very much, it brings them a little bit of a share in the private
copying levy and it gives them a right to take action against rebroadcasting,
retransmission, which is always the live rebroadcasting. So it is the signal piracy
actually, it’s a very short term of protection, it’s about ten seconds protection, it’s
not even 24 hours, it’s only against a live rebroadcasting that it’s actually used in
some cases. 80
75 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference,
James Mackenzie, session 4, transcript 65.
76 G Shepherd, A Hughes and NLA Media Access,'Copyright Infringement and Newspapers, Online Article
Tracking System (OATs)' (NLA Media Access, 2014), 2.
77
Meltwater v Newspaper Licensing Agency Ltd CT114/09, 14 February 2012 (Copyright Tribunal
(Interim Decision)), [6].
78 ,'Annual Report' (NLA Media Access,, London 2015)
79 Ellis, 184
80 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
session 3, transcript 52
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Another speaker, the Danish lawyer, Søren Christian Søborg Andersen
agreed:
I also had the privilege of representing quite a lot of broadcasters and they have,
and have had for decades, an ancillary right and I can tell you that they’re hurting
too. You know, so they blame YouTube which is essentially also Google but
they’re also… their business is declining because the behaviour of their
consumers is changing. Okay. So, I propose to you that if the intended result is
to generate more revenue for news publishers, the example of the broadcasters tell
you that the way to achieve it is not to introduce a new ancillary right. You have
to find something else.81
Moreover, there are reasons to believe that a publishers’ right will become less effective,
as the online market in news develops. Social media platforms are fast becoming more
important than search engines and aggregation as the main routes by which people find
news that has been published online.82 It’s not clear how effective a publisher’s right
would be at deriving a flow of income from such organisations. Facebook’s Instant
Articles platform, for example, is based on permission, and sharing of advertising
revenue.
There is a further argument that a publisher’s right is unlikely to be effective, based the
experience of news-related copyright laws that have been passed in Member States,
particularly those passed in Germany and Spain. These were subject to detailed analysis
in the second session at the Amsterdam Conference, and the conclusion was that they had
been ineffective in bringing in a revenue flow to news publishers.83
A publishers’ right would be counter-productive
A final reason against a publishers’ right is the argument, at least pursuant to the
incentive argument, is that it may impede the development of new business models that,
in the long term, will be more sustainable and beneficial to the commercial news
industry.
A central idea here is Schumpeter’s notion of creative destruction. The Internet can be
seen as one in a long history of disruptive technologies that have forced those who seek
to make money out of news to change the ways they act. This argument against a
publishers’ right is that it would be a foolish attempt to preserve doomed business
structures. This is an argument that is widely proposed in the wider literature that
considers the place of journalism in a digital era. Authors such as Hargreaves,84 Picard,85
81 Ibid. session 2, transcript 34.
82 Levine 127, 128; ‘Facebook and Google continue to build some of the world’s most profitable
companies based on targeted advertising wrapped around relevant and interesting content.’ ,
Reuters
Institute Digital News Report (Reuters Institute for the Study of Journalism, 2015) 19. Bell.
83 Text to n 129
84 Hargreaves chapter 8.
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Xalabarder,86 Brock87 (and others,88 including in interview) have suggested that the best
thing to do might be to let market forces restructure the commercial news business, rather
than intervene, for example with a publishers’ right. A simile that has been used to
advance this point, is that that attempting to preserve the business models of commercial
news publishers is like attempting to preserve the interests of buggy whip manufacturers
after the development of the motorcar.89
Professor John Naughton developed the point at the Amsterdam Conference:
as the discussion went on today, some names of past thinkers came to my mind;
one of them was Joe Schumpeter and his view about how capitalism evolves. As
you know, Schumpeter’s view was that capitalism renews itself in ways of what
he called creative destruction. We’re all living through one such wave and it’s
both creative and it’s both destructive and it is true that some great things, very
valuable things, are being destroyed and it’s also true that some very interesting
and perhaps potentially very important things are being created. But much of the
discussion about this consists of the wailing of incumbents who are now
threatened with destruction.90
This point is related to Benkler’s suggestion intervention may impede the development of
a networked public sphere, but is distinguishable. That is because Benkler’s proposal was
intervention may impede the development of an activity that replicates the function of
commercial journalism. This creative destruction argument against intervention turns, in
contrast, on the idea that intervention may impede the development of new business
models that can help sustain commercial journalism.
Evaluation
I will consider each of the three counter-arguments in turn. It will become clear that the
first two are in some ways similar, as they include a similar critique of a publishers’ right.
This is that a publishers’ right risks over-benefitting those who, for policy reasons, we
have no compelling reason to benefit: we risk over-benefitting poor-quality news content,
85 RG Picard, 'see p000 check' in R John and J Silberstein-Loeb (eds),
Making News: The Political
Economy of Journalism in Britain and America from the Glorious Revolution to the Internet (2015)
86 R Xalabarder, 'The Remunerated Statutory Limitation for News Aggregation and Search Engines
Proposed by the Spanish Government; Its compliance with International and EU law' (infojustice.org 2014)
<http://infojustice.org/archives/33346> accessed 10 October 2014 19
87 Brock
88 For example, P Schlesinger and G Doyle, 'From organizational crisis to multi-platform salvation?
Creative destruction and the recomposition of news media' (2014) Journalism: Theory, Practice and
Criticism
89 Ryfe 29; W Patry,
How to Fix Copyright (OUP, Oxford 2011) 3; D Simon, 'Build the wall' in R
McChesney and V Pickard (eds),
Will the Last Reporter Turn Out the Lights: The Collapse of Journalism
and What Can be Done to Fix it (2016) 50.
90 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Professor John Naughton, session 4, transcript 61
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and already profitable news organisations. On this basis, the question of whether they are
persuasive or not will come down to an assessment as to whether it is appropriate to
provide these benefits to people who may not need them, set against the costs of not
benefitting those who do need them. It is here that the relevance of the commercial news
industry to democracy becomes significant.
The third counter-argument is somewhat different, as it criticises the notion that
copyright and related rights are an appropriate tool to bring to bear on any problem that
exists. This is difficult to evaluate without seeing a definite text– and in particular, it is
difficult to asses what the costs and harm will be caused (if any) by a publishers’ right.
However, some general observations can still be made, which lead to the conclusion that,
whilst intervention itself may be appropriate, it’s far from clear that intervention by
means of an EU publishers’ right is the way forward.
The challenge to the democratic assumption
It will be remembered that the first challenge to the incentive argument had two parts – a
strong and a weak argument. The weaker argument was that the commercial news
industry damages the public sphere as well as benefits it, and a publishers’ right would
over-benefit harmful acts we ought to deprecate. The stronger argument asserted that a
publishers’ right would be inappropriate, as it would impede the emergence of Benkler’s
networked public sphere, which can be expected to replace the commercial news
industry. Neither are convincing.
The weak argument
The weaker argument against the incentive case is that a publisher’s right will benefit the
malignity, vulgarity, mendacious spirit, and the ordures, to use Jefferson’s words,
manifest in contemporary journalism. This is true: it will. Even those who support
commercial news production should accept that it can both detract from democracy, and
contribute to it, and indeed this was conceded at the Amsterdam Conference. But does
that mean that a publishers’ right is inappropriate?
A first way of could seeking to resolve this is by asking whether commercial journalism,
on balance, promotes democracy more than it harms it? If commercial journalism on
balance promotes more than harms democracy, a publishers’ right becomes appropriate.
If harm comes to the fore, it is not.
However, this is a complex debate with an extended pedigree. It predates the current
dilemma, and indeed the Internet, by centuries, and has raged in many different countries.
As the briefest of example, Habermas is perhaps the most prominent contemporary
European critic of the argument that the advertising funded commercial news industry
contributes to public sphere,91 and I have already cited Thomas Jefferson’s 1814 letter to
91 J Habermas,
The Structural Transformation of the Public Sphere: an Inquiry into a Category of
Bourgeois Society (Polity, Cambridge 1989). A recent American, but relevant to Europe, critique has been
made by R McChesney,
Digital Disconnect (The New Press, New York, London 2013).
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a similar effect.92 But this view remains deeply contentious.93 It cannot be expected that
this question be resolved before any right can be said to be appropriate.
Perhaps, then, one could seek to incentivise only the production of democratically useful
– ‘good’ journalism, and impede the production of harmful journalism? This sounds like
an attractive way of resolving the dilemma, but it is in practice, not. Two reasons show
why this is so.
The first is, as has already been mentioned, because of the extreme difficulties in
defining ‘good journalism’. Even if one adopts a more nuanced definition, say
democratically salient journalism, there are legitimate differences of opinion as to what
this entails. These are manifest, for example, in the jurisprudence of the European Court
of Human Rights about the appropriate balance between article 8 rights of privacy and
article 10 rights of freedom of speech.94 ‘What content is it in the public interest to
publish?’ these cases ask, an issue very closely aligned with the question of what
journalism is ‘good’ journalism for present purposes. It is difficult to see a publishers’
right being a mechanism that could be expected to provide a convincing way of
determining what is democratically salient or ‘good’ journalism, given the content-
neutral nature of copyright and related law.
A second point is that a problem arises for the idea of incentivising only good journalism
from the observation that disseminating content is only one part of the picture of what a
news publisher does. The other half is encouraging the audience to read or consume the
content. Journalism is, by its essence, an activity that involves communication not just
dissemination. This is commonly achieved by mixing democratically salient news with
other forms of journalism designed to attract the attention of the audience.
This process of mixing content has been called ‘bundling’ when describing print
journalism, and hammocking when describing broadcast journalism. Bundling or
hammocking are undertaken for various reasons. One is economic – to attract more
audience to make more money. But another is psychological: popular, but less
democratically salient journalism attracts the attention of an audience to more worthy
journalism, and - in effect - cross subsidises the attention deficit in democratic
92 Text to n 44. Not that it is relevant to the current argument, but the criticisms are distinguishable:
Habermas objects to advertising-funded journalism, Jefferson objected to partisan journalism.
93 Such a wealth of work exists on this subject in a variety of disciplines that it can be misleading to select
any examples to demonstrate the point. Habermas himself has spawned a large secondary literature.
However some important material relied on in this research that tends to support the argument that
commercial news remains of great value to democracy in a digital era includes CR Sunstein,
Republic.com
2.0 (Princeton University Press, Princeton ; Oxford 2007), M Schudson,
The Sociology of News (2nd
Edition edn W W Norton & Company, 2011), and some of the essayists in R McChesney and V Pickard,
Will the Last Reporter Turn Out the Lights: The Collapse of Journalism and What Can be Done to Fix it (New Press, New York 2011).
94 This can be illustrated by the trio of Von Hannover cases:
Von Hannover v Germany (No 1) (2006) 43
EHRR 7
Von Hannover v Germany (No 2) 55 EHRR 15 (Grand Chamber)
Von Hannover v Germany (No
3) [2013] ECHR 835
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journalism. It is the psychological point that is relevant to the argument about a
publishers’ right.
Now, if copyright were to incentivise the production only one type of journalism –
investigative work, for example, ironically there is a strong chance that this would lead to
consequences we may not wish to see. At the least, there is no guarantee that using
copyright and related laws to encourage the production of one type of content would
necessarily increase the consumption by the audience of this content, which is ultimately
the purpose of incentivising democratically relevant content.
This is because it is not clear that encouraging commercial news publishers to produce
one type of content will change the psychological fact that some news is less attractive to
the audience other sorts of news. Encouraging the production of some type of content
will not necessarily encourage its consumption.
The irony is, therefore, that if copyright incentives are tailored to encourage commercial
news publishers only to produce more democratically useful content, such as
investigative work, this might not lead to an increase in the amount of people would in
the end read or watch this content A publisher’s right might incentivise production, but
not necessarily attention.
Indeed, one reason for this is due to the Internet. This has facilitated the unbundling of
print journalism, and the de-hammocking of broadcast journalism. As Brock, for
example, argues:
[the internet] works against the logic of bundling a varied collection of content for
delivery to the reader. The internet […] allows [readers] to go straight to the
material they want without passing through the rest of the package95
If this is so, then we return to the central dilemma. It seems one cannot avoid the
difficulties raised by this critique of a publishers’ right, by asking whether commercial
journalism on balance promotes democracy, or by attempting to promote only one type of
content. Accepting that some commercial journalism damages democracy, then, the
question becomes whether this is sufficient reason to not intervene? Should one, to put
the point another way, refrain from benefitting the good because one will also benefit the
bad?
There is no clear answer to this. Sceptics of a publishers’ right are wary of benefitting the
producers of harmful material, but advocates of a publishers’ right emphasise what good
there is that would be lost. At the Amsterdam Conference, for example, Andrew Hughes
said:
95 Brock 151. See also J Keane,
Democracy and Media Decadence (Cambridge University Press,
Cambridge 2013) 7 -8.
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Not all newspaper activity is good, that’s for sure, and we picked up some
references to that. But I was in Washington last week and visiting AP and also
‘Washington Post’ who are proudly clutching a couple of Pulitzer prizes:
‘Washington Post’, for having created a database of the police shootings of
civilians, which is having a direct and positive impact on public policy there; and
AP for having invested in creating a story about slavery in the fishing trade in the
Pacific and tracing how fish caught using slaves, literally a camp on an island of
slave labour, is being fed back through into not just American but other Western
restaurants. That kind of activity, I think, is very easy to see as terribly important.
What ‘The Guardian’ have done with Snowden is a classic and more local
example of that. So, that’s a statement of the bleeding obvious, but it’s worth
restating, I think, and losing that is what we’re talking about and copyright policy
has to fit into that view.96
But one resolution may be found in the words of the author of America’s First
Amendment. James Madison famously said in 1876 ‘some degree of abuse is inseparable
from the proper use of every thing: and in no instance is more true that that of the
press.’97 The context of Madison’s argument is of course different from the current
dilemma, and there is no reason for a European necessarily to pay regard to Madison’s
opinion. But the point he articulated remains forceful in a contemporary European
context: one has to accept the risk of harm if one is to encourage an activity that can also
produce good. The more attractive view is, therefore, that the fact that the commercial
news industry can create harm should not be a reason, by itself, not to intervene. Hence
the failings of the commercial news industry are not by themselves a reason to refrain
from a publishers’ right.
That said, one should bear in mind Professor Naughton’s point that we should ultimately
not confuse form with function. What we seek to protect is journalism’s contribution to
the public sphere, and the activity of engaged participatory journalism. It just happens to
be the case in our society that these functions are largely performed by the commercial
news industry. But this may not always be the case.
The strong argument
This leads to the strong argument, which argued that no intervention at all is appropriate,
as this may hinder the development of a networked public sphere that may replace
commercial news. The expectation is, in other words, that a new form can be expected to
arise to undertake the functions of the commercial news industry.
A problem with this suggestion is that it’s difficult to believe that such a development
would truly replicate the scale and resources of commercial professional journalism.
These resources include access to lawyers, collective expertise, various professional
96 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Andrew Hughes, session 1, transcript 9.
97 4 Elliot’s Debates on the Federal Constitution at 571
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codes (which are more respected in broadcast, perhaps, than print, because broadcast is
more highly regualted) and the like. This means that institutions, in short, can do things
that networks of individuals cannot (or are unlikely to be able to). This has been argued
by a variety of authors, such as Jones,98 Schudson,99 Levine,100 and Starr 101 Indeed, the
point was also made at the Amsterdam Conference by Matt Rogerson, drawing on his
experience at the Guardian:
the idea that kind of an individual blogger could have done the Panama Papers at
all so is ridiculous. An organisation like The Guardian or the Times that did the
Lance Armstrong story, it requires teams of journalists and teams of lawyers to go
through a story line by line so I think this idea that kind of bloggers on their own
can survive and can produce public interest journalism is kind of fantasy.102
And yet, many will be unconvinced by this. Indeed, this is another debate with a
substantial pedigree, as even before the development of the Internet, scholars were
arguing about whether citizens with pens, or lonely pamphleteers, who perform
functional journalism, can replicate the activities of institutions that do journalism.103
Clearly it cannot be resolved conclusively in a discussion about a publishers’ right.
What can be said, though, is that even if - as Benkler expects to happen - these qualities
can be replicated by networks of individuals, that hasn’t happened yet. In fact, it seems
that a quite different pattern is emerging. Some research has shown that the networked
public sphere is actually, to a large extent, dependent on the work of the commercial
news industry. It recycles and churns content produced by legacy print journalists.
This was the conclusion of research has been done in the US into the provenance of
online stories. This found that newspaper journalists generated the vast majority of news
reporting, with one estimate putting the figure as high as 85% of the total material
produced in a particular area at a particular time. Another, a frequently cited Pew Centre
survey of news in Baltimore in 2010, reported that 95% of stories with new information
98 A Jones,
Losing the News: The Future of News that Feeds Democracy (Oxford University Press, Oxford
2009)
99 Schudson
100 Levine
101 P Starr, 'Goodbye to the Age of Newspapers' in R McChesney and V Pickard (eds),
Will the Last
Reporter Please Turn out the Lights (The New Press, New York, London 2011)
102 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Matt Rogerson Session 3, transcript 57
103 This was an issue in, for example, .
Branzburg v Hayes 408 US 665 (1972) . The case concerned, in
basic terms, the question of whether the Press were sufficiently functionally distinct in the US state to merit
special protection under the First Amendment to the Constitution. The Supreme Court decided they were
not, because individuals could perform the same tasks as institutional journalists. The issue generated a
large amount of discussion, some of which is collected in part 1 of E Barendt,
Media Law (International
library of essays in law and legal theory, Dartmouth, Aldershot 1993).
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arose from traditional media, of which newspapers produced the lion’s share.104 This is
perhaps unsurprising, as US newspapers used to employ three times as many journalists
as were employed by other media.105
One cannot be sure that this US research reflects what is happening in the EU. But there
are reasons to expect that it does. As Levy and Neilsen argue in their comparative study
of the news business in an online world, the legacy print industry is the engine room of
journalism and the flow of news.106 Indeed, even in the UK, which might be expected to
reflect a different picture because its news ecology is dominated by the non-commercial
journalistic behemoth of the BBC, a similar position about the important contribution
made by print journalists has been established.107
This evidence makes it is reasonable to suggest that it is too optimistic to base the
justification for failing to intervene to protect commercial journalism, and in particular
print journalism, on the hope that something equivalent will arise to take its place.
Benkler himself has conceded that it is unclear whether this is happening.108 A more
likely view of the facts is that commercial journalism, particularly legacy print
journalism, is unlikely to be replaced by something functionally equivalent any time
soon, and so the incentive argument remains viable. There may well develop a symbiosis
between the two forms of production of journalistic information, as Naughton has
argued,109 but that is insufficient reason to refrain from taking steps to protect the
viability of commercial news.
Summary
Neither the weak nor the strong argument are a compelling reason not to create a
publishers’ right. However, it is appropriate to recognise the limitations of the democratic
argument for a publishers’ right. Publishers do harm as well as good, and one should not
confuse protecting the function of journalism with its form. This means any intervention
bears the risk of rewarding content that is harmful to democracy,
104 Levine 132; McChesney 179
105 N Gamse, 'Legal Remedies for Saving Public Interest Journalism in America' (2011) 105 Northwestern
University Law Review 329
106 Levy, Nielsen and Reuters Institute for the Study of Journalism.
107 Ibid. 4. One survey found that that the majority (65%) of the spending on news in the UK is accounted
for by the print sector, with the national press spending about £875million and the regional press £470
million. Mediatique,'A Report for Ofcom (Annex 6 to Ofcom’s advice to the Secretary of State for Culture,
Olympics, Media and Sport)'.
108 Y Benkler, 'Giving the Networked Public Sphere Time to Develop' in R McChesney and V Pickard
(eds),
Will the Last Reporter Please Turn out the Lights (The New Press, New York London 2011)
109 J Naughton,
From Gutenberg to Zuckerberg: Disruptive Innovation in the Age of the Internet (Quercus,
New York, London 2014)
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The challenge to the notion that the news business is not thriving
The second area to address is the notion that the commercial news publishing industry is
not faring as badly as it seems, and so no intervention is necessary. Here, again, there are
a variety of points that can be made.
Concerns about the long term remain potent
The first is that it may be premature to conclude from any returns to profitability that
parts of the industry have enjoyed, that any crisis has been successfully weathered. There
are reasons to expect that the longer-term trends in the commercial news industry will be
downwards, due to substantial long-term systemic problems. Intervention, therefore,
remains potentially appropriate.
These fundamental difficulties have been widely noted. Indeed, one example has been
discussed above, namely the decline of the traditional advertisement revenue model,
which was for so long a stalwart of the news industry’s finances.110 Another long-term
problem is the protracted and extended decline in circulation figures that show little sign
of being reversed. People in Europe and the USA seem to be, in general, consuming less
and less news, and printed news in particular,111 and while this is particularly true of the
young, social and demographic changes have also been identified as reasons why older
people are also losing the habit of purchasing news.112 Falling circulation figures have
knock-on effects that create a vicious circle for the commercial news industry, as
advertising revenues are frequently linked to circulation figures.113 Moreover, declining
revenues makes it more difficult to spend sufficiently to create good quality
journalism.114
Indeed, when Professor Dr Hegemann was pressed at the Amsterdam Conference on how
a publishers’ right may be justified when Axel Springer had returned to profitability, he
said:
rising turnover and profits are not stemming from the traditional news business.
As you might know, Springer has sold quite a group of its traditional regional
newspapers, […and…] decided some years back to completely restructure its
activities and to invest almost more than a billion into internet or digital-based
companies that have not much or nothing to do with the traditional publishers’
110 Text to n 9.
111 Ryfe 1, 34; Hargreaves 112, 121; Schudson 225; S Wunsch-Vincent, 'Online News: Recent
Developments, New Business Models and Future Prospects' in DAL Levy and R Nielsen (eds),
The
Changing Business of Journalism and its Implication for Democracy (2010); ,
Reuters Institute Digital
News Report 64-66.
112 Starr. Some have argued that it may be that these figures are misleading, and there is a decline in the
consumption of print journalism only – and there is less of a decline when consumption of digital
journalism is taken into account. However, this has not been demonstrated yet.)
113 Ellis 33, provides a survey of other problems that have been identified.
114 Kaye and Quinn 5
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business. The publishing side of the business today is ‘Die Welt’, ‘Bild’, and so
on, and the ‘Bild’ is profitable; ‘Die Welt’ is not, as you know. But Springer has
understood that they will not be able to keep on their traditional content,
journalist-driven content business without backing it with activities that are far
away from the classical journalism.115
Other sectors, and the commercial news industry
This suggestion was that there should be no general intervention to benefit the legacy
print news industry, because such an act will benefit other sectors – such as broadcast and
online – that are not suffering to the same extent. An answer is that, to begin with, it’s not
clear that this statement is true, and if it is, whether it is likely to be true for long: there is
evidence of significant closures of local radio stations that might have transmitted
news,116 and there are concerns that the Internet will undermine television’s advertising
model, as it did that of print.117
Moreover, for example, optimism about the long-term prospects of digital native
commercial news producers is not clearly well-placed. They have not been around long
enough for us to have a robust idea of their continued viability, and indeed many of them
are funded by venture capitalist money, or philanthropy, or other means rather than by
profit, which may not be sustainable in the long run.
BuzzFeed, for example, recently
announced it missed its financial targets by over $80 million,118 and
Vice Media recently
laid off 20 staff, including two foreign correspondents.119 It is too early to tell whether
online digital news operators have developed sustainable business models that will
generate valuable news content, as opposed to – for example – paid advertising material,
dressed in the garb of journalism.
But perhaps more importantly, there remain other cogent reasons to pay particular
attention to the legacy print industry, as legacy print journalists constitute the prime
motive force of the news industry. This was argued earlier, based on research that
analysed the provenance of various forms of news in circulation.
This shouldn’t be taken as an argument for the preservation of the dissemination of news
by ink on paper: a confusion, in Professor Naughton’s terms, form with function. Rather,
115 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR
Conference, Jan Hegemann, session 1, transcript 15 -16.
116 GMG Radio, the UK’s third largest radio broadcaster in 2010 suffered losses of £68.6m, which were
greater than losses of Guardian and Observer together. It was sold in 2011 Ellis 162
117 McChesney 128
118 S Thielman and M Sweney, 'BuzzFeed cuts projected revenue by half after missing 2015 financial
target'
The Guardian (12 April 2016) <http://www.theguardian.com/media/2016/apr/12/buzzfeed-
projected-revenue-cuts-missed-financial-target>
119 B Quinn and J Jackson, 'Vice Media lays off 20 staff in restructuring plans' ibid.(24 May 2016)
<http://www.theguardian.com/media/2016/may/24/vice-media-lays-off-20-staff-in-restructuring-plans>
accessed 14 June 2016
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as Ellis observes ‘[t]he concern should not be with the predicted demise of the ink-on-
paper edition but with the possible death of the type of serious journalism for which the
printed page has become an idealised metaphor.’120 Perhaps even more so, the argument
should be to attempt to preserve those who are skilled and trained to undertake ‘difficult
journalism in the public interest – either requiring large resources or resilience against
attack’, who for historical reasons exist in large, predominantly print-based companies,
that can cross-subsidize news operations and afford expensive staff lawyers.121
Excess profits
These points aside, there remains force in other aspects of this argument against a
publishers’ right. In particular it is a fair to say that the levels of profitability that
commercial news expected in the past were excessive, and some drawing in of belts is
appropriate. A publishers’ right that is intended to bring back the historic levels of high
profitability enjoyed by commercial news publishers would be indefensible.
That said, there are some complicating factors that need to be taken into account. One is
that there are reasonable grounds to believe that, given the longer-term trends affecting
the commercial news industry that were described earlier, any financial adjustment will
be not merely to levels of profitability that are closer to those found in other industries.
These long term trends give us reason to suspect that the decline may well be to levels
insufficient to support a large-scale news industry. This is likely to have a detrimental
affect on the ability of the commercial news industry to perform some of the tasks we
have come to expect of it in our democracy.
Specifically, a reduction in profitability may well have an affect on the character of the
news material that is generated. The absence of a generous profit line may encourage
some commercial news producers to produce cheaper, and lower common denominator
material that will please advertisers and pander to audiences, rather than more expensive,
less popular and less remunerative journalism, such as investigative work. Indeed, to
some extent, this appears to have been the pattern in broadcast news, in some
countries.122
Differences between Member States
The fact that there are differences in business models, and the patterns of economic
difficulties predicated on differences in subscription, sales and ad revenue in different
Member States is a significant argument against a publishers’ right. It leads to the
concern that a EU harmonized publishers’ right may risk of over-benefitting those whom
there are policy reasons not to benefit. In this respect, when evaluating the publishers’
right, one again comes to the question of whether it is acceptable to provide a benefit to
those that may not need it – in this case, some profitable commercial news businesses in
some Member States.
120 Ellis 17.
121 Brock 122.
122 Hitchens chapter 6.
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But it is true that, as was the case earlier, the better view is that the concerns about the
seriousness of the potential cost in democratic terms, of losing the commercial news
industry are greater than the concerns about providing a benefit to some elements of the
industry who do not need it. But that does not mean that measures cannot be taken to
attempt to reduce the levels of over-benefit. One way of achieving this is to ensure that
the targeting of benefits to assist those who need them is done at the level of Member
States, rather than a European level. This is because Member States will be better placed
to calibrate the benefits of a intervention so that it deals with the specific problems in its
news industry. Clearly, however, this would lead to the development of different
solutions in different Member States, and therefore would be in tension with the desire to
create a digital single market.123
The challenge to the idea a publisher’s right should be part of the solution
The final set of arguments to assess suggests that there is no sufficient reason to think
copyright as part of the solution to any problem. Again, there are a variety of points to be
made.
The suggestion that a publishers’ right is not appropriate
One preliminary question was the issue about whether copyright and a publishers’ right
was an appropriate tool to incentivise the production of commercial news. An aspect of
this was that it was not appropriate, on the grounds that copyright and related rights
should, as a matter of principle, focus on the interests of authors. This seems to be a bad
point, as far as it goes. A publishers’ right could be an entrepreneurial right.
Entrepreneurial rights are already part of the EU’s copyright acquis, and are designed to
protect financial investment in the production of content by other content producers.124
There is therefore nothing problematic
per se in the creation of a publishers’ right as
another entrepreneurial right.
Indeed, the fact that news publishers do not already benefit from such a right leads to the
claim that news publishers suffer from unequal treatment, as other content producers
benefit from these entrepreneurial rights, but news publishers do not. This leads to the
equality argument for a publishers’ right, which will be discussed at length below.125
By contrast, another point that was raised is more telling. This is the argument that
copyright and related rights are ill-suited to incentivise the production of a particular
content or type of journalism. For reasons discussed earlier, it is unlikely that a
publishers’ right could incorporate a test that appropriately distinguished some content
from others, and only incentivised content that was desired – even if there could be
consensus about what journalistic content was desirable. This means that if a publishers’
123 This is an aspiration of the Commission, and a rationale for EU legislation see text to n 42.
124 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society. For a discussion,
see L Bently and B Sherman,
Intellectual Property Law (OUP, Oxford 2014) 32-33, chapter 13.
125 Text following n 132.
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right is intended to achieve this outcome, it is likely to be a bad choice as a means of
intervention.
More difficult to assess are the questions that have been raised about the appropriateness
of a publishers’ right by, for example, by Julia Reda MEP. Some of the concerns here are
that a publisher’s right may give rise to harmful unintended consequences on others. The
harms that may arise will be set out in more detail in the next section,126 but it is
sufficient to mention here that they present a considerable challenge for the notion that a
publishers’ right is an appropriate means of dealing with the difficulties that face the
commercial news industry.
The suggestion that a publishers’ right is not effective
The second argument was that it is unlikely that a publishers’ right would be effective. It
would not bring in sufficient income to create an incentive of the sort required to produce
commercial news in the future. Here, it is true, a publishers’ right is unlikely to be
sufficient.
However, while a publishers’ right will not resolve news publishers’ financial
difficulties, it may well help. As Andrew Hughes said at the Amsterdam Conference,
‘copyright reform is not the solution to the news problem, but the solution to the news
problem is a much bigger and more challenging issue than that’. And this was the
argument advanced at the London Workshop by representatives of the publishing
industry, who ‘observed that even if copyright wouldn’t provide enough revenue to
resolve the difficulties facing the news industry, it would likely help. It should be seen as
an ‘and-and’, not an ‘either-or’. Newspapers are not looking, it was said, for a magic
bullet, but for help in areas that are ‘leaking revenue’’127
More difficult, though, for those seeking to defend a publishers’ right, are other concerns
about its efficacy. One of the more pertinent is the worry that a publishers’ right may be a
solution to yesterday’s problem, not tomorrow’s. It was described how a publishers’ right
seems primarily aimed at the problems publishers have with news aggregation, but
aggregation is becoming eclipsed by social media, particularly Facebook, as a means by
which news is distributed. A publishers’ right is unlikely to be well-tailored to enhance
the generation of more revenue from the distribution of news by social media platforms.
A further serious concern about the efficacy of a publishers’ right derives from the
experience of the Spanish and German laws. As Professor Xalabarder and Professor Dr
Gruenberger described at length at the Amsterdam Conference, these were not an
effective way of raising revenue. Professor Xalabarder said that after the Spanish law,
‘Google was not affected. Google simply closed the Google news site and went on with
its business. Instead, such a provision puts a Damocles sword on top of the small
126 Text to n .146
127 Danbury
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aggregators and blog sites which fear that maybe one day the newspapers will come and
ask for the compensation’.128 Of the German law, Professor Dr Gruenberger said:
The ancillary right in Germany has been a complete regulatory failure. It
promised way more than it could ever deliver. Eventually, it re-created, with
regard to Google, exactly the same de-facto situation as before, however, with
substantially higher transaction costs. The ancillary right – and this is a point
regulators really should look into, particularly with regard to Google – is also
responsible for possible competitive disadvantages of other search engines.
Finally, copyright law needs technology and media sensitive access rules. The
German press publisher’s right as an exclusive right does not meet that
standard.129
Clearly, though, a publishers’ right is likely to be different in form to either of these
examples, so perhaps it might fare better? Whether this is so, or not, again depends
largely on the wording of any provision. But there are some reasons to be pessimistic. If,
for example, a publishers’ right is not a mandatory right, then Google may respond to it
in the way it responded to the German News Publishers’ Ancillary right, and make
indexing and listing on its servers conditional on publishers signing a waiver. If, by
contrast, it is mandatory, there is a real risk that Google may respond in the way they
responded to the Spanish amendment to the quotation exception, and shut down their
news aggregator. This is because – given the size and revenue model of Google – that the
news industry needs Google more than Google needs the news industry. The same,
arguably, applies to the other major online redistributors of published news.
Creative destruction
That leaves the argument about creative destruction, that we ought to leave the
commercial news industry alone, so that the hidden hand of the market can develop a
new viable business model, just as it did out of advertising some three hundred years ago.
‘Creative destruction’ is a powerful metaphor, but there are a number of problems with
applying it to the real world, some of which have been prefigured in the related
discussion about the networked public: it hasn’t happened yet, and how can we be sure it
will happen? Of these, perhaps the most pertinent is how can we be sure that any
destruction will be creative? And why should we be phlegmatic about the levels of
destruction? Given the fact that a commercial news publishing industry is (on balance)
valuable to democracy, there are significant concerns about what will happen if it is
destroyed.
How, in other words, can we be sure that anything that replaces the commercial news
industry will be of equal or greater value to that which may be lost? How can we be sure
128 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
transcript 31
129 Ibid., transcript 23.
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that the new business models that evolve will create something that is functionally
similar, rather than functionally worse? Indeed, some evidence –namely the rise of
advertorials, sponsored content, and click-bait journalism, and the continuing failure to
find an effective business model that replicates the type of journalism we have today,
leads one to be sceptical. Andrew Hughes made this point at the Amsterdam Conference:
I agree absolutely with John that, you know, the Schumpeter diagnosis of creative
destruction is what we’re going through and it’s going to be a very exciting time
to see what emerges from that. You cannot hold on to what you’ve got and hang
on to it and assume you have got a right to your model lasting forever. I think
everybody would agree with that. I just hope that the new models that emerge are
not dominated by PR paid for by corporate rather than independent journalism, of
admittedly very varying qualities over the years130
Here, we must balance risks. Even if there is creative destruction at work, this does not
rule out the fact that intervening – for example with a publishers’ right. Such a right
would still be appropriate, on the grounds that what we stand to lose is of such value to
democracy, and after recognising that the production of democratically salient journalism
has always been subsidised.
Conclusion
The incentive argument provides a cogent set of reasons to intervene to benefit the
commercial news industry. This is because on balance, the commercial news industry can
be seen as contributing to a healthy democracy in a valuable way, and there is insufficient
reason to expect it to be replaced by something as useful if it fails. There are cogent
reasons to expect that the difficulties in which the commercial news industry finds itself
are severe, and long-term. If many commercial news operators go bankrupt or withdraw
from expensive but democratically important activities, this is likely to significantly
impair communication valuable to our democratic states. This leads to the conclusion that
an intervention would be useful and beneficial.
However, the incentive argument contains some manifest weaknesses. There is a risk of
benefitting those who do not need it, or do no longer need it, or for doing things we do
not want to incentivise. The industry has had in the past remarkable levels of
profitability, and it would be an error to intervene and replicate these. We must not
confuse the need to protect the function of journalism with the need to protect its form,
and we need to disregard any arguments from the commercial news industry or others
that seek to collapse these together. But, on a balance of risk, it seems appropriate to
intervene.
What is less clear is that any incentive should be by a right related to copyright, and even
less clear that any such right should be harmonized across the EU. There must remain
concerns about whether a publisher’s right would be effective, particularly given the
experience of the copyright-related laws that were adopted in Germany and Spain in an
130 Ibid., Andrew Hughes session 4, transcript 70.
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attempt to benefit commercial news producers. It may well provide a marginal benefit,
which would be welcomed by the news industry, but there is also a very real risk that any
benefit will become less significant in the future, given the changing patterns of news
distribution in an online world. And, given differences in the news businesses in Member
States, intervention might be better if it were not at a European level.
Also significant are the concerns that a publishers’ right may harm or damage others. The
risk of this should be weighed in the balance against any benefits a publishers’ right
might be expected to deliver to society. At present, this is difficult because we have no
text to consider.
In summary, the incentive argument leads to the conclusion that some intervention is
appropriate, but it does not lead to the conclusion that a publishers’ right is the
appropriate means of intervention. As Professor Hugeholtz said at the Amsterdam
Conference:
it is a common reflex, look at IP law, it’s always IP law that is at fault here, but I
don’t think IP law in any imaginable world is going to help us out of this
conundrum. Other business models surely are, that’s not my department of
course, I’m not competent here but I would obviously look at that. Subsidies,
always interesting, I’m from the Netherlands, we love subsidies, I’m all in favour
of that. Re-routing money that now goes to public broadcasts to the press, I’m all
in favour of that. More taxing Google and having them pay their taxes in the
countries where they’re really making money, yes please. 131
131 Ibid., Bernt Hugenholtz, session 3, transcript 47.
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3 The equality argument
The second argument, the equality argument for a publishers’ right, has only emerged
recently. It is less complex than the incentive argument, but is more involved than at first
appears. It is not, by itself, sufficient reason to establish a publishers’ right.
The argument
The equality argument has arisen because news publishers claim that they are not treated
the same way in EU copyright law as others who conduct similar activities. They argue
that other content producers – phonogram producers, broadcasters and film-makers –
receive rights under the Related Rights Directive in respect of reproduction,
communication and making available to the public and distribution, but news producers
do not. This is a point that the Commission have acknowledged is relevant to their
considerations about a publishers’ right, and is on the Commission’s consultation
website:
Current EU copyright law grants neighbouring rights to performers, film
producers, record producers and broadcasting organisations. Publishers are not
among the neighbouring right holders at European level.132
This is unequal treatment, publishers argue, and inconsistent. A senior decision maker
interviewed for our research explained: ‘why should broadcasters, record producers have
neighbouring rights, but [publishers] don’t?’ This inconsistency, publishers argue, can be
remedied by the creation of a publishers’ right.
The equality argument sounds simple, but there are other aspects to it. It is not merely a
claim for equal treatment, but is a claim that equal treatment is merited given the fact that
the activities undertaken by news producers are of a similar nature to those undertaken by
producers who already enjoy these neighbouring rights, and that these activities are
valuable to society.
Publishers have indicated what some of these activities are. The democratic argument has
been discussed at length,133 but there are others. A significant example is the result of
financial investment that publishers make in producing news. Such an investment is
important because it sustains the legal, professional and other institutional aspects of
news publishing that contribute to the value in a democracy of commercially published
news. But such investment also, as the publishersright.eu website argues, has wide
economic benefits, equivalent to those created by other neighbouring rights-holders.
132 European Commission, 'Commission seeks views on neighbouring rights and panorama exception in EU
copyright' (2016) <https://ec.europa.eu/digital-single-market/en/news/commission-seeks-views-
neighbouring-rights-and-panorama-exception-eu-copyright> accessed 14 June 2016
133 Text to nn 8, 44, 91, 196
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Being acknowledged, as rightsholder is an important basis for publishers to
maintain sustainable journalism and would benefit employees, freelancers and
photographers alike. It will allow for further investment in digital skills and the
creation of new jobs. This would ultimately benefit the EU’s economy as well as
society.134
This was an argument that was forcefully expounded at the Amsterdam Conference.
Andrew Hughes said:
You employ 1,000 people to make and create news for you and then when you get
into the courts in Europe, less so in the UK, you aren’t recognised as existing at
all in copyright here. It’s an obvious nonsense that needs to be addressed and it
will simplify and streamline licensing. It will put news organisations, who are not
dissimilar, particularly in the digital age, from the other publishing organisations
that have that protection135
Publishers also argue there is a creative act in the production of commercial news that
should be recognised, and this is another reason why a copyright-like publishers’ right is
appropriate. This arises because a news publisher does not just collate news reports, but
creatively selects, edits, and produces news in such a way that the brand identity of the
publishers is adhered to and promoted, and an audience attracted and retained. As the
publishersright.eu website explains:
A press publisher does not merely publish content created by journalists and
photographers. The publisher is responsible for overseeing the entire operation
involved from the initial concept to the financing, production and management of
a newspaper or magazine, in print or online, and takes legal responsibility
together with the editor for the making available to the public of the final
published edition(s) and any updates thereafter. Crucially, the publisher creates an
editorial brand.136
This will be discussed in a little more detail later, as it is relevant to the natural rights
argument for a publishers’ right.137
The equality argument suggests a relatively easy way of creating a publishers’ right. The
Information Society Directive, and/or the Related Rights Directive, could be amended to
recognise news publishers as rightsholders in European copyright acquis.
134 European Publishers Council and others, (accessed
135 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Andrew Hughes, session 1, transcript 11.
136 European Publishers Council and others, (accessed question 5
137 Text to n187.
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HP v Reprobel
The equality argument has become more significant of late because of the recent CJEU
decision in the case of
Hewlett-Packard v Reprobel.138 This decision has limited the
extent to which publishers – and not only news publishers – are entitled to certain types
of compensation. The compensation in question is that payable under the reprography
and private copying exceptions, as provided for in article 5 (2) of the Information Society
Directive. The CJEU indicated that only authors are entitled to such remuneration. This
means that article 5(2), properly construed, precludes national laws from allocating a part
of that compensation to publishers, where the publishers are under no obligation to
ensure that the authors benefit from this allocation of funds.
The funds in question can be substantial in many countries in Europe, and publishers
would feel their loss acutely. Professor Dr Hegemann explained at the Amsterdam
Conference how the decision would affect German publishers, by referring to a recent
German case.
Following a decision of the European Court, the Federal Court, Civil Court, ruled
that the publishers are not any longer more qualified to get money out of these
reproduction fees but rather will have to repay what they got in the last couple of
years to the authors which will sum up to a three digit million. This causes really
a danger of insolvency for small and mid-sized book publishers.139
However, if by applying the equality argument, publishers can establish themselves as
rights-holders in EU copyright law of equal status to other neighbouring rights-holders,
they might have a greater chance of sharing the revenue restricted by the
Reprobel ruling.
The creation of a publishers’ right may achieve this.
This provides an incentive for publishers other than news publishers to seek recognition
as EU rights-holders, as the
Reprobel ruling applies to all publishers. It presents a threat
to all of their income. This may be one reason the Commission’s consultation is now
envisaging creating a neighbouring right for all publishers, a proposal that was not
canvassed in the Commission’s Communication in December 2015.140
Counter arguments
There are a number of problems with the equality argument. First, though, it is important
briefly to discuss one aspect of the
Reprobel decision. This is because it is appropriate to
distinguish the case for a news publishers’ right from the case for a general publishers’
right. It was discussed at some length in the last section how the publishing of news
138
Hewlett-Packard Belgium SPRL v Reprobel SCRL Case C-572/13 (CJEU (Fourth Chamber))
139 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Jan Hegemann, session 1, transcript 6.
140 European Commission,'Communication from the Commission to the European Parliament, the Council,
the European Economic and Social Committee and the Committee of the Regions: Towards a modern,
more European copyright framework' (
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engages issues related to the functioning of a healthy democracy,141 but these arguments
only apply to news publishing. They do not to publishing more generally. It follows from
this that the arguments about whether news publishers should benefit from a copyright-
like right are different from the arguments about whether publishers in general should
benefit from such a right. To conflate news with general publishing will create confusion:
it will either inflate the importance of general publishing to democratic communication,
or to undervalue the importance of news publishing.
Turning to the equality argument more generally, the claim that the law is inconsistent
needs further investigation – is it, and is it in ways that are important? And even if the
law is inconsistent, resolving this inconsistency may create other inconsistencies, and this
is something we wish to avoid. Indeed the force of the equality argument derives from its
desire to remove inconsistencies from the law, and it must be an error if by changing the
law we create more inconsistencies. Moreover, even if the creation of other
inconsistencies is not a problem, the fact that changing the law will incur other costs,
including harm to others, will need to be justified. They cannot be justified merely by
claiming that the law is inconsistent, and other considerations will have to come into
play.
Truly similar?
The first point rests on the claim that publishers undertake similar tasks as those
performed by phonogram producers, film-makers and broadcasters. Do they? And, what
do we mean by ‘similar’? To answer that, we need to find out what reasons were put
forward at the time of the Related Rights Directive to explain why the law should afford
rights to these entrepreneurs. We then have to consider the similarities and differences
between news publishers and those who currently hold rights, and establish whether any
similarities engage the reasons that were advanced for creating the original neighbouring
rights. If they do not, then the claim of inconsistency falls.
This is quite a task, and we do not have space to undertake it here. That may seem
unsatisfactory, but it is sufficient for the moment to note that the equality argument is
more complex than it first appears. If it is to be persuasive, this work needs to be done to
establish that there is indeed an inconsistency.
Moreover, there are reasons to believe that the original rationales for the introduction of
the other neighbouring rights in EU law may have been, in fact, rather different from the
reasons that publishers are now seeking a right, This was a point suggested by Professor
Hugenholtz at the Amsterdam Conference:
I would like once again to draw the comparison with the neighbouring rights for
the broadcaster. First of all, of course, the funny thing is why did we get that
right in the first place? Most people were involved in getting it here in the 1960s
are dead but I have been told that the only reason why this right came about was
to give them something where they would be the people who had to pay for the
141 Text to n 44, 91, 196
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other new neighbouring rights. So it was the performing artists who got their own
right and obviously the Phonogram producer got that right because they were the
strong lobbyist at the time and especially the public broadcaster at the time were
very much against it, especially in the Netherlands as late as the 1990s were
against it, and only when they were convinced and was absolutely sure that the
Olympic Games would come to Amsterdam in 1992 and that it was necessary for
them to have their own neighbouring right at the time were they convinced it was
a good idea. So it was a funny reason why we got the neighbouring right for the
broadcasters in the first place.142
We also need to ask whether, whatever the reasons why the original set of neighbouring
rights were granted, these reasons remain apposite. A lot has changed since the Related
Rights Directive was passed, and the rationales for its existence may no longer be
persuasive. That means that it cannot necessarily follow that the mere fact that news
entrepreneurs were left out of the Related Rights Directive in the past, that there is
sufficient reason to provide them with rights now. A hard look is required into the
question of the ways in which the Internet has changed things, and the effect of such
changes on the normative question of whether neighbouring rights are appropriate, before
we can accept the equality argument as providing a reason for a publishers’ right.
In any event, evaluating the claim that an inconsistency would be removed by a
publishers’ right is hampered by the fact we do not know, at the moment, what a
publishers’ right would entail. This makes assessing whether there is or is not an
inconsistency very difficult, as Professor Bently explained to the Amsterdam Conference:
people who know something about what neighbouring rights contain know that
they all differ. So having a consultation about having a new neighbouring right
for publishers just doesn’t tell you anything about what the content of the right
that’s being proposed is, and how can you possibly respond to a consultation
when you don’t know what the content of the right being proposed is?143
More inconsistencies will be created
The second set of difficulties arises because if one admits publishers into the class of
recognised rightsholders under EU law, who will now be left out? Who, in other words,
will then have a claim that they have been treated inconsistently? For if consistency is
our watchword, and we are motivated by a desire to ensure that the law is treating anyone
consistently, we need to be very careful not to leave out another group if we create a
publishers’ right.
Part of the problem here is in identifying who we want to benefit, and how, and drafting a
publishers’ right in such a way that that they are benefitted in the way we want, and
142 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
, Bernt Hugenholtz, session 3, transcript 52
143 Ibid., session 3, transcript 53
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others are not. These problems were articulated by Professor van Eechoud at the
Amsterdam Conference:
there are too many worrisome concepts that we need to pin down: what type of
use are we talking about; by whom; can we make meaningful distinctions
between different actors in the light of changing technologies about who should
be limited from doing what exactly? Can you make a meaningful distinction
between commercial and non-commercial uses? I’m not sure, particularly if you
start looking at social media, you know, and who should be the addressees of this
norm? Is it just traditional search; is it news aggregators; is it all kinds of
platforms? Very importantly, also, who are the beneficiaries? How would you
demarcate those? Even in an ideal world where you could actually come up with
a legal provision that clarifies this enough to provide a certain level of legal
certainty then the other question, of course, is okay, that’s the law in the books
and what happens on the ground? How does it actually affect the market? How
does it play out in markets?144
But, even if it is possible to identify and specify to whom and to what we wish a
publishers’ right to apply, any line drawing exercise will leave some people out. These
people may then themselves have a claim that they have been inconsistently treated, and
this is a problem. Three possible groups of claimant can be readily identified.
The first are the wire services – news wholesalers – like Reuters, Associated Press, the
Press Association, and Agence France Presse. These, and similar organisations, provide a
task that is similar to news publisher, in that they collect and distribute news. But the
difference, historically at least, between news publishers and wire services is that news
distribute news to the audience, and wire services – the news wholesalers - distribute
news to the publishers.
Will the creation of a publishers’ right extend to news wholesalers, as well as news
publishers? We do not know at the moment, because we do not have the text of the
legislation to consider. But if it does not, then we will have created a further
inconsistency in our attempts to remove one. The wire services will surely have the same
type of claim of inconsistency that the publishers have now.
The second group of people who may have a claim are others who undertaken
functionally similar tasks as news publishers. In other words, people who gather and
distribute news in our society. Now, it is notorious that the Internet has made everyone –
arguably – functionally equivalent in terms of news gathering and publishing to those
who used to buy ink by the barrel. The barriers to entry to the news market have fallen.
Given this, there is a claim by any citizen journalist or blogger who publishes news
online to be treated the same way as news publishers. 145 If the text of any legislation
144 Ibid., Mireille van Eechoud, session 4, transcript 67. See also text to n 209.
145 It was argued earlier that individuals and networks of individuals are unlikely to be functionally
equivalent to institutional commercial journalism. However, aspects of what individuals and networks of
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omits these people, then – again – they may have a claim to equality of treatment under
the law of the same type as is currently being advanced by news publishers.
A third group of people may also have a claim to inconsistency, but it’s unlikely that
they’ll voice it. That is because the inconsistency that they face may be beneficial to
them. The people in question are the broadcasters, who already are afforded rights under
the Related Rights Directive. If the law is changed in such a way that those who publish
news are benefitted, then there is a risk that they’ll receive two sets of benefits – both
under the Related Rights Directive as broadcasters, and when they publish news as news
publishers. Is that a defensible situation? It’s unlikely that it is, and if it is not we will
have created a new inconsistency – one group of people benefitting twice – from our
attempt to resolve an old one.
It may be that with appropriate and subtle drafting, these problems – particularly the last
one - can be avoided. But, however subtle the drafting, there is always a risk – a systemic
risk from the nature of drafting laws that include some and exclude others – that
resolving one consistency will create others. The upshot of this is that a claim of
inconsistency is not by itself enough to justify establishing a publishers’ right, and it also
ceases to look like a simple argument.
The costs this will incur
The third problem with the equality of treatment argument is the fact that making the law
consistent – assuming that it isn’t consistent at the moment, and that it can be made
consistent without creating other inconsistencies –will cause costs to be placed on others.
This, of course, is a consideration that the Commission have recognised. They say:
The Commission will take into account the impact that introducing a new
neighbouring right for publishers would have on all relevant stakeholders and
ensure the coherence of any possible intervention with other EU policies.146
One of the curiosities of the equality argument is that it does not, by itself, provide us
with a reason why we should accept these costs. To understand why it might be
appropriate for others to bear any costs created by a publishers’ right, we have to
examine other arguments beyond questions of equalty. This makes the equality argument
by itself deficient as a rationale for adopting a publishers’ right.
Who might suffer these costs? There are at least three types of people whose interests
should be considered. The first class is Internet operators who currently redistribute
published news online. The second is individual users of the Internet. The third is society
in general.
individuals do undoubtedly replicates some of the activities of news publishers, and it is on this that any
claim would lie.
146 European Commission, 'Commission seeks views on neighbouring rights and panorama exception in EU
copyright'
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Online operators
A specific example of the first type of person who will suffer costs is, of course, Google
– whether in respect of their provision of search tools, or news tools. Indeed, imposing
costs on Google and others who redistribute published news online is exactly one of the
results of a publishers’ right is intended to bring about, as the incentive argument
showed, and the free riding argument will show. But a publishers’ right is also likely to
also affect media monitoring organisations, and other news aggregators. This was
emphasised at the Amsterdam Conference by James Mackenzie, who runs a small media
monitoring organisation called Cutbot.
We are not the target. Even if you get this through you would aim at Google; you
would miss. They would close down Google News or they would take Spain out
of it or take Belgium out of it and you would hit us and you would be putting
small businesses out of work in a failed attempt to try and get big businesses who
do behave unethically. […] 147
Leaving aside, for the moment, the question of whether the imposition of such costs are
appropriate,148 the point is that the interests and legitimate expectations of these online
operators need to be taken into account, when considering whether to establish a
publishers’ right.
Users of the web
The second group of people who may suffer from the introduction of a publishers’ right
comprises ordinary users of the web.
One reason that users of the Web may suffer costs from a publishers’ right is if a
publishers’ right placed a financial drag on hyperlinking or embedding to news content.
This is a point on which Julia Reda has campaigned, as was mentioned earlier.149 At the
moment, generally speaking, after
Svensson150 and similar cases, there is frequently no
such financial liability. But Reda and others are concerned that a publishers’ right would
create financial obligation that would arise when news material was hyperlinked to, or
embedded. Many would find this deeply problematic, as Professor Naughton said at the
Amsterdam Conference.
There are some people in this discussion, although I hope nobody in this room,
who actually thinks that we should do something about hyperlinking. If anybody
thinks that the publishing industry will do anything about what has become one of
147 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR
Conference, session 4, transcript 72
148 This will be addressed in the text to n 159.
149 Text before n 72.
150
Svensson v Retriever Sverige AB C-466/12, [2014] Bus LR 259, [2014] ECDR 9
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the most fundamental technologies of the whole world then I begin to wonder
what these people are smoking. […]151
It was described earlier how both the publishers’ website, publishersright.eu and the
Commission have strongly asserted there is no intention to create a ‘tax on hyperlinking’.
But, be that as it may, it is difficult to assess whether there is any damaging effect on
users of the web by a publishers’ right, as predicted by Reda or in another way, on
because we don’t have a text to consider.
Even if a publishers’ right has no effect on hyperlinking and the like, there are other ways
in which it might have a detrimental impact on users of the web. It may deprive them of a
benefit to which they have become accustomed because, for example, they have become
used to services that would be curtailed by a publishers’ right.. This was a point raised by
the representative of the BEUC, the European consumers’ association, at the Amsterdam
Conference.
Of course, I’m not defending here Facebook or Google, you know, they have all
these trade associations in Brussels so they can do the job, but we have to
acknowledge that these have given the possibility for consumers to reach or
creators also to reach their audiences in a greater way. 152
The economist Bertin Martens provided a reason why this is so:
people go to aggregators because you get an overview of all the newspaper
articles anywhere in the world or in your country, in your language or on your
subject and that’s where if you’re more targeted research. So that is the main
advantage of these news aggregators from a consumer perspective153
Society
The third class of people who may suffer a cost from providing a publishers’ right, and so
making the law consistent, is society in general. This is a less evident point, but society in
general may suffer a cost if a publishers’ right curtails beneficial activities. One concern
is about suppressing innovation. Society may lose the possibility to benefit from
something that does not exist yet, and could not develop if a publishers’ right is created.
This may seem somewhat remote, and indeed the notion was expressly challenged at the
Amsterdam Conference by Andrew Hughes.
creating a connection between looser copyright laws and innovation is utterly
ridiculous. I don’t see any evidence and I don’t think any of you can produce any
evidence that relaxing copyright law creates innovation. All it does is encourage
151 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR
Conference, John Naughton, session 4, transcript 62
152 Ibid. Agustin Reyna, session 4, transcript 63
153 Ibid., Bertin Martens, session 3, transcript 54
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people to sit in bedrooms and play with taking other people’s content and trying
to resell it, that’s not innovation and I think we should be clear in our heads about
that.154
But this is too strong a view. It’s important to recognise it is at least plausible, and many
think it has happened. Indeed the Hargreaves review was (in part at least) set up because
of a concern that Google would not have been permitted to arise in the UK because
copyright law would fetter this type of innovative use of content created by other
people.155 And there are extensive works that describe how loosening copyright can be a
spur to innovation: either to those who are not motivated by profit, or who are motivated
by profit in particular ways.156
Andrew Hughes’ assertion was challenged at the Amsterdam Conference, Marietje
Schaake MEP, for example, responded:
Well I think exceptions for example are crucial for remixing just to give you an
idea for access to culture, for digitising cultural heritage and making it available
to the public and not only in Europe but globally. For scientific cooperation
across borders, I think there are actually a lot of ways in which exceptions and
more flexible copyright can help innovation but I understand that’s a political
discussion.157
And James Mackenzie, provided a example of innovation being suppressed:
A few years ago I met the former founder of a start-up who sought to use software
to scan newspaper articles and conduct sentiment analysis which is, for
programmers here, a difficult field. So they didn’t have a single customer. They
weren’t sure how they were going to monetise this. They were a university spin-
off, but from day one they were required to pay a licence for the articles that their
software was looking at; a licence that obviously had no revenue. They had a
very small amount of money and this requirement put them out of business. So it
might have been a great business; it might have been a terrible business, but
because the law has treated those unpublished server site copies as potentially
infringing we’ll never know. […] Neither of these rights would undermine the
business of publishing, nor would they prevent new media from entering the
media market. There’s no substitute here for the necessary work being done by
journalists, but they might lead to the kind of flowering of sophisticated analytical
154 Ibid., Andrew Hughes, session 3, transcript 57
155 BBC, 'UK copyright laws to be reviewed, announces Cameron' (BBC 2010)
<http://www.bbc.co.uk/news/uk-politics-11695416> accessed 14 June 2016
156 Examples include L Lessig,
Remix: Making Art and Commerce Thrive in the Hybrid Economy
(Bloomsbury Academic, London 2008) Benkler,
The Wealth of Networks: How Social Production
Transforms Markets and Freedom , and Patry
157 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Marietje Schaake, session 3, transcript 59
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businesses that we so rarely see in the European Union. It’s not a coincidence
that innovation happens elsewhere.158
The publishers’ response
Now it may well be that the costs of the sort described here should be borne by the
various people described. Google, for example, may be free riding on news publishers’
effort, and so may be is appropriate to impose costs on them. And the costs on users of
the web might be justified, because if they continue to enjoy a free aggregated news
service, the funding that generates the news itself may dry up and the production of news
grind to a halt. There is much force in Andrew Hughes’ observation to the Amsterdam
Conference that:
[y]ou can say at this moment in time consumers are benefiting; infinite demand
for a free good, is what I remember from my economics, but I don’t think you can
impute from that, that that’s an acceptable or a sustainable position and I don’t
think what you’re suggesting there really is sustainable. […] 159
It may also be appropriate to prevent innovative use of publishers’ content, because such
use is immoral in some way, amount to free riding, or breaches publishers’ natural rights.
And there may be other reasons it is appropriate that a publishers’ right imposes the costs
described here.
But in a way, these arguments establish the point at issue. That is that the equality
argument can only amount to a small, contributory case for the establishment of a
publishers’ right. Other considerations need to be taken into account, beyond a claim of
inconsistency, before a publisher’s right can be justified. For, as we have seen, when
evaluating the appropriateness of any costs imposed on others by a publishers’ right, it
will be necessary to look beyond the mere claim of inconsistency to see if they are
appropriate.
Conclusion
The equality argument seems simple, but this is deceptive. It may, perhaps, be true that
news publishers are not afforded neighbouring rights, while other entrepreneurial content
producers are, and that this appears inconsistent. But before this can amount to a reason
to bring in a new neighbouring right for news publishers, a variety of complex judgments
need to be made. What, in detail, will a new right entail; what were the reasons that the
old rights were afforded; do those reasons pertain now; are they sufficient to support
providing news publishers with rights?
Moreover, other questions need to be answered, that are raised by the equality argument:
what other inconsistencies might be created by establishing a news publishers’ right, and
can these be defended, given the fact that we wish to pass a publishers’ right to avoid
158 Ibid. James Mackenzie, session 4, transcript 65
159 Ibid., Andrew Hughes, session 4, transcript 69
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inconsistencies? And, finally, and importantly, the question arises of the costs that a
publishers’ right may impose on others. What will these be, and how can they be
justified? Any justificatory argument will have to look beyond the fact that publishers are
currently treated in an unequal way. Hence, the equality argument is not, by itself,
sufficient reason to establish a publishers’ right.
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4 Free riders – ‘reaping where they have not sown’
The third argument that emerged from our research, as a rationale for a publishers’ right,
is the free riding argument. This is the argument that online redistributors of news benefit
from the effort of news publishers without paying for it, or providing sufficient other
compensation.
This is an argument that is susceptible to empirical proof, as economic studies can reveal
whether or not there is unrecompensed benefit, and so whether or not a publishers’ right
is indicated. However, such evidence seems to be at the moment equivocal, and there are
reasons to suspect that it will continue to be so. This is partly because online
redistribution of news affects different publishers in different ways. Better-known
publishers may suffer from free riding, while smaller publishers may benefit from having
their brands promoted. It is also because re-distributors of news may be building new
markets, rather than free-riding in older established ones.
This, therefore, is an area that would benefit from more primary research, and perhaps a
meta-study, that distinguishes the different interests of different publishers, and pays
regard to the new market argument.
The argument
The benefit that online redistributors may receive from published news may be direct, as
is the case with commercial media monitoring organisations, clipping services, or news
aggregators, who collate published news and sell it to clients. Or, alternatively, it may
also be direct where a social media service attracts the attention of the audience by
presenting published news, and then sells this attention on to advertisers, or advertising
brokers. An indirect benefit may arise where an online service bolsters its brand by
redistributing news, or by gains goodwill from doing so, without directly selling
advertising against it.
In each case the actions of the online redistributors of news is free riding, publishers
argue, and is wrong and something the law should restrict: this could be achieved by a
publishers’ right.
The publishersrights.eu website explains the point in a way that brings to the fore the risk
of diverted sales and subscription revenue, lost to news publishers:
Whilst the significant role of the press has not changed, the way in which press
publishers’ content is created and distributed is vastly different from the pre-
digital era. In a purely analogue world no third party has been free-riding on
publishers’ services during the regular marketing period of the daily, weekly or
even monthly press. But in the digital world, the online press in particular runs the
risk of, and often is, partially or completely taken over by a third party in seconds
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and exploited and marketed in a variety of ways, without any remuneration to the
rightholders.160
At the Amsterdam Conference, Andrew Hughes emphasised the concern extends to the
diversion of advertising revenue:
What they do, in Google’s case, is take everybody else’s content and index it and
create a utility based on that. In Facebook’s case they encourage everybody,
including me, to create a lot of content and in doing that they also gather a
tremendous amount of very interesting information about the individuals using it
and a huge of amount of traffic. That makes them phenomenally powerful as an
advertising resource. […] bear in mind what the business model of news is; it’s
about gathering enough readers together and selling them something, which is
news, and then selling advertising to those readers. The issue for newspapers and
the issue that any change to copyright law has to be put in the context of is that
their ability to sell that advertising is declining and declining very rapidly161
There is a close relationship between the free riding argument and the other arguments
explored in this paper. So, for example, it may be that as the incentive argument claims,
an incentive is needed to produce news because the free riding of online redistributors
redirects revenue away from news publishers. And the argument is also linked to the
natural rights argument, which will be considered in the next section. This, it will be
seen, suggests that a publisher might be able to own and control published news in some
way. If so, then those who use ‘owned’ published news without sufficient recompense
are probably freeriding.
However, the arguments are distinguishable. In the case of the natural rights argument,
it’s important to describe how, as the two are closely connected. The distinction arises
because one doesn’t have to agree with the natural rights argument that news is property,
for the free riding argument to be viable. There are serious difficulties with the notion
that news should be considered property, but even if news should not be seen as property,
third parties may be free riding on acts news publishers.
This is recognised in much traditional copyright doctrine.162 So, for example, while
declining to consider news property, North J in the 1892 English case of
Walter v
Steinkopff still found there to have been free riding.
In the present case what the Defendants have had recourse to is not a mental
operation involving thought and labour and producing some original result, but a
160 European Publishers Council and others, (accessed
161 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR
Conference, Andrew Hughes, session 1, transcript 10
162 See also the American Supreme Court case of
International News Service v Associated Press 248 US
215 (1918) , which is discussed in the text to n 190.
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mechanical operation with scissors and paste, without the slightest pretension to
an original result of any kind; it is a mere production of ‘copy’ without trouble or
cost. […] For the purposes of their own profit they desire to reap where they have
not sown, and to take advantage of the labour and expenditure of the Plaintiffs in
procuring news for the purpose of saving labour and expense to themselves. 163
Counter arguments
What can be said against the free riding argument? Our research highlighted two main
challenges, both of which concentrate on the assertion that any actions by online
redistributors of news actually amounts to free riding. The first argues that online
redistributors of news actually promote news publishers’ content, rather than free ride on
it; and second that online redistributors of news are actually creating a new market, rather
than free riding in an old market. 164
Promotion or substitution?
The first challenge, then, is whether it is in fact true to say that there is free riding. Online
redistributors of news argue that they promote the activities of news producers, rather
than free ride on them. Publishers, evidently, reject these claims. One senior opinion-
former interviewed for our research framed the issue in this way. Aggregators may, they
said, promote news publishers’ interests in part, by bringing published news to the
attention of a much larger group of people than publishers themselves can. But, on the
other hand, it’s a common sense that people in a hurry may read any headlines generated
by news publishers, and snippets of text on a mobile device, and not click through to visit
the publishers’ sites. Publishers are thereby deprived of the attention of an audience –
which, as can be discussed, can be sold to advertisers. The opinion former said that
they’d heard the promotion argument before. It is used by anyone who wants to use
someone else’s content without paying, and was used by the broadcasters about music in
the 1950s. But broadcasting didn’t promote music, it substituted it.
The question of whether there is promotion or substitution can be addressed by empirical
economic research. There has been a considerable amount of work done on this subject,
some of which was discussed in the third session at the Amsterdam Conference.165 But a
problem with the empirical evidence is that it may be equivocal, as some studies support
the idea that there is promotion and some substitution.
163
Walter v Steinkopff [1892] 3 Ch 489 495 See also another historic UK news and copyright case,
Walter
v Lane [1899] 2 Ch 749 ‘I should very much regret it if I were compelled to come to the conclusion that
the state of the law permitted one man to make profit and to appropriate to himself the labour, skill, and
capital of another’, per Lord Halsbury, 545.
164 As is the case with most of the arguments addressed in this paper, this is an incomplete survey, as there
are other challenges that can be made. It can be asserted, for example, that free riding is not wrong, that it is
not something the law should seek to restrict, or that even if it is wrong and should be restricted, a
publishers’ right is not an effective way of restricting such action.
165 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Bertin Martens.
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Substitution
It is not surprising that publishers rely on studies that show that there is substitution.
Some have shown that even if Google is driving some traffic, many more Google visitors
do not click through to the source sites. Some show that though Google is driving some
traffic to newspapers, 44% of Google visitors do not visit the original newspaper sites).166
And others note that even if clicks are being driven to publishers’ sites, that does not
translate into much revenue. Andrew Hughes said at the Amsterdam Conference:
One of the things that I’ve found frustrating at times is being told by people, “Oh,
we should be allowed to do this because we’re sending clicks to your website and
these are tremendously valuable and they will change the future of your
business”. Well, you might believe that, and a number of newspapers might have
strategies based on that. I, personally, as a business person, broadly don’t believe
that to be true and, actually, the fact that they’re now running into this brick wall
of ad blocking, which is the big new topic in the industry. They think in some
segments, particular younger populations in Europe, up to 50 percent are using ad
blockers now. The idea that that traffic on freely supplied content is going to
employ the journalists that you need to uncover slavery in the south Pacific or do
some of the other great things that news organisations have done is, I think,
slightly specious.167
The point here is that even if there is some promotion, it is not sufficient for the news
industry to be viable in the longer term. This, publishers have argued, is galling because
online distributors – and in particular Google – benefit disproportionately. A German
newspaper publishers’ spokesman put this argument succinctly, when he said: ‘the
problem is that Google earns billions, and we earn nothing’.168 And the point has been
echoed by American commentators: ‘it is a point of ironic injustice, perhaps, that when a
reader surfs the Web in search of political news he frequently ends up at a site that is
merely aggregating journalistic work that originated in a newspaper, but that fact is not
likely to save any newspaper jobs or increase papers’ stock valuation’. 169
Promotion
Those arguing against a publishers’ right rely on studies that show that digital
redistributors promote news publishers websites. Xalabarder quotes a study that indicated
166 Cited in R Xalabarder, 'Google News and Copyright' in A Lopez-Tarruella (ed)
Google and the Law (T.M.C. Asser Press, The Hague 2012), footnote 179
167 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Andrew Hughes, transcript 10.
168 E Pfanner, 'An Antitrust Complaint for Google in Germany'
New York Times (18 January 2010)
<http://www.nytimes.com/2010/01/19/technology/19antitrust.html?_r=0> accessed 14 June 2016. Cited in
R Xalabarder, 'Google News and Copyright' in A Lopez-Tarruella (ed)
Google and the Law (T.M.C. Asser
Press, The Hague 2012)
169 R McChesney and V Pickard,
Will the Last Reporter Turn Out the Lights: The Collapse of Journalism
and What Can be Done to Fix it (New Press, New York 2011)
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that Google news sends one billion clicks a month to newspapers’ sites,170 and that when
extracts are reproduced, this sends more traffic than when headlines are reproduced
.171
Other studies have been undertaken that replicate these findings.
One of the more interesting was undertaken in Spain, after the Spanish law sought to
make aggregation an activity that was regulated by copyright. This meant that Spain
provided a natural experiment, in that it allowed economists to study what the effect was
of stopping aggregation. The research was undertaken by Nera, the economic
consultancy, at the request of an association of small Spanish publihsers, the Asociación
Española de Publicaciones Periódicas (AEEPP).172 The Nera study showed that
publishers saw traffic to their sites fall after the Spanish law was enacted, and so their ad
revenue also fell. Clearly this study supports the view that in these circumstances at least,
aggregators promoted, rather than substituted.
Commenting on this study at the Amsterdam Conference, the economist Bertin Martens
concluded that: ‘what we know from this empirical evidence is that the impact of
dropping Google news aggregation is actually negative for newspapers’. He said that this
‘leaves a puzzling question for an economist, why would newspapers want to do this or
have this change in the law, have this neighbouring right when it doesn’t bring them any
benefits’. Moreover, he said:
What the study also showed is that indeed users, rather than going through the
Google News aggregator that did not longer operate in Spain, went back to the
old search engine, Google search and that way found their newspaper articles.
But for me as an economist this is possibly the worst of all possible solutions in
the sense that the newspapers lose in terms of traffic and ad revenue and
consumers lose because it sets them back five years in time in access to internet
[day? 00:15:42] services.173
And Agustin Reyna, of BEUC – the European Consumers’ Association – was also acute
to the interests of consumers:
Of course, nobody should be making money out of the work or the effort that
somebody has put without sharing, you know, a piece of the gain, but I think that
it’s also leading to the interesting discussion there was before with snippets, you
know. It’s the fact that these aggregations cannot be considered as a substitute of
the news piece as such because, nevertheless, if you are a user you go to the news
170 European Publishers Council and others, (accessed
171 Xalabarder, 'Google News and Copyright'
footnote 181, Citing a Google study saying Google News
sends a billion clicks a month to newspapers’ sites.
172 Association of Publishers of Periodical Publications. Nera Economic Consulting,'Impact of the New
Article 32.2 of the Spanish Intellectual Property Act' (Nera, 2015) 43.
173 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
', Bertin Martens, session 3, transcript 41
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aggregator and you would go, if you’re interested on the topic or you’re interested
on the title with something that draws your attention, then you will go, then you
go and look for the whole piece.174
On the basis of research like this, it was not surprising that James Mackenzie, of the
small aggregator Cutbot, observed:
We and Google create revenue for papers. We send clicks their way. In the case
of Google vast numbers. In the case of us, tiny numbers. But if newspapers
aren’t making money from those extra clicks they need to work out how to
improve their business model rather than blaming us for decisions that are taken
elsewhere and changes that have happened in other parts of the industry.175
Publishers have different interests
One important point can be drawn from Nera’s Spanish study that helps clarify one issue.
This study found, as was mentioned earlier, that stopping aggregation resulted in a
lowering of traffic and hence revenue for publishers. But the interesting fact was that
there were differences between publishers in the extent to which traffic fell. The
Asociación de Editores de Diarios Españoles176
(AEDE), a group representing larger
publishers, that had lobbied for the law to be brought into force, reported that their traffic
was down by 2%. But traffic to less well-known news publishers fell more, and some
sites saw a reduction of traffic of up to 12%:177 The Nera study concluded that:
the reform followed the interests of a particular group of publishers
which, given the deterioration of their business, sought to obtain an
additional source of income from one of the Internet giants, even to
the detriment of other publishers, to the development of the online
news production and aggregation sectors in Spain and, ultimately, to
consumers (including advertisers) and to social welfare.178
Smaller publishers may have suffered more than larger publishers may because their
brands are less well-known. That means they are less likely to be found through search
on a search engine, and are more likely to be found accidentally through a news
aggregator, or by other online redistributors. Bertin Martens expanded on this point to the
Amsterdam Conference:
174 Ibid. Agustin Reyna, session 4, transcript 70
175 Ibid. James Mckenzie, session 4, transcript 65
176 Association of Editors of Spanish Dailies
177 telecompaper, 'Spanish News Sites Down up to 12% after Google News closure'
telecompaper (30
January 2015) <http://www.telecompaper.com/news/spanish-news-sites-down-up-to-12-after-google-news-
closure--1062419> accessed 13 January 2016
178 Nera Economic Consulting(, viii
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What happens is that let’s say the middle of the road, provincial or national
newspaper that produces a bit of everything but is not very specialised in anything
can lose out from these aggregators. But the more high end newspapers, the
quality newspapers or the more long tail newspapers that specialise in a particular
topic and people who really want to read that newspaper because they’re
interested in that topic, they don’t lose out, they gain a lot of traffic from these
news aggregators. It depends as a newspaper on where you are in that spectrum.
We’ve seen these superstar versus long tail mechanisms in many other media
industries. Search engines put a lot of pressure on the middle ground but
increased the superstar effect and increase the long tail effect.179
This is important. It demonstrates that all news publishers are not affected equally by
actions by an online re-distributor of news. For larger publishers, aggregation may
amount to free riding, and as when people consume news from the aggregator, the
aggregator becomes a substitute for the sites of news publishers. But for smaller, less
well-known brands, the actions of online re-distributor may well amount to promotion.
It is likely, therefore, that there will not be a simple answer to the question ‘do online
aggregators promote or substitute?’ Publishers are affected in different ways by online
re-distributors of news. If this is not recognized, there is a serious risk that
unsophisticated studies that show online redistributors of news generally amount to
substitution, and so a publishers’ right is appropriate, will result in the market being
skewed in favour of larger players. This is a serious problem, as it would damage media
plurality and diversity.
Who bears the burden of proof?
The empirical evidence, therefore, seems equivocal. Clearly this is an area which would
benefit from more studies, either primary economic research, or a dispassionate meta-
study that summarises and compares the research that has taken place.
However, in the absence of this, a question that becomes important is who should bear
the burden of establishing the facts in issue? This is important as in the absence of clear
evidence, we do not know whether or not there is free riding. Consequently, we do not
know whether a publishers’ right is appropriate. Should publishers have the burden of
showing that their product is being substituted before a publishers’ right can be accepted
as legitimate? Or should the starting point be to assume that there is substitution and
consequently a publishers’ right is indicated, unless online re-distributors of news can
establish that their actions are actually promotion.
A senior figure we spoke to in our research was firmly of the view that it is for online
news redistributors to prove that their actions are not free riding. They said that it was up
to those who argue there is no free riding to provide empirical arguments to show that
this is the case. But this person didn’t provide reasons to back up such an assertion, and it
179 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
session 3 transcript 44.
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could equally be argued that it is up to those who assert that there is free riding, to
provide empirical evidence to support their position.
But such reasons can be found. If the starting point is that, as the Commission say in the
December Communication, ‘the basic principle of copyright that acts of exploitation need
to be authorised and remunerated’,180 then it should be up to those agents who seek to
depart from the basic principle to prove their case. In this debate, therefore, the onus falls
on those who redistribute news, rather than those who publish it. Another way of arriving
at the same conclusion is to observe that it seems fair to ask those who claim that their
actions do indeed sufficiently remunerate rights holders, to show that this is the case. It is
the online news redistributors who are the disruptive force, and it makes sense that the
burden should be on them to explain why the change they are bringing about is
beneficial.
Whether they have demonstrated that this is so, or not, is beyond the expertise of this
paper, given the lack of clarity in the empirical research. But this is clearly an area that
would need to be explored before a publishers’ right is brought into force. If they have
not, and until they do, then on balance (and subject to the concerns about there being
differences in the interests between publishers) a publishers’ right is supported by the
free riding argument.
A new commercial activity?
There is a second argument against the charge of free riding. This is the suggestion that
the new online redistributors of news are not free riding, because they are creating a new
product or service. They are transforming news publishers’ product. If this is so, the
argument that they are free riding becomes weaker, as it can be met with the counter-
argument that the activity that is being undertaken is not one that it is appropriate for any
publishers’ right to restrict. James Mackenzie advanced this case at the Amsterdam
Conference:
we’re not using your content in that way. We’re not republishing it. What we do
with it, I believe, is entirely outwith copyright, should be outwith copyright. You
ask how your businesses and their staff should get a fair amount of money from
our business. I think the fair amount of money that you should get from our
business is zero. You don’t contribute to our indexing; to our analysis; to our
email server building; to any of the work that we actually do. The work we do is
not the duplication of the articles, it’s the smart searching which is what people
pay for. They pay for the news coming in, in a... Their company was mentioned
in the ‘South China Post’ which they would never have noticed and then we drive
a little bit of traffic to the ‘South China Post’. So, we cost you nothing and we
bring you revenue. If there’s a financial transaction which should go on here you
should be paying this. 181
180 Text to n 40.
181 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
James Mackenzie, session 4, transcript 71
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This argument has found favour in some of the courts in Member States: in the German
Paperboy action, for example. Xalabarder’s analysis on this is valuable, and is worth
quoting at a little length.182
In the ‘‘Paperboy’’ decision, the German Federal Supreme Court concluded
against any finding of unfair competition taking into account the fact that this
service offered considerable added value in terms of providing access to
information. It is undeniable that search engines (and also news search engines)
offer considerable added value and are not competing with the copyright owners’
businesses; whether or not the same may be said about the news aggregation sites
is more disputed. This leads us to another paramount question: whether news
aggregators are in direct competition with the copyright owners or instead are
they acting in different markets?
Ultimately, this question may touch on the scope and goal of the exclusive rights
granted by the law: can copyright be exercised in a manner that avoids (directly or
indirectly) the development of new markets? Usually, the exercise of copyright
will not result in obstructing a whole new market (rather, it commonly affects the
development of different means of exploitation within the same market); but
when it does, competition law may intervene and force owners to grant a license -
thus, de facto reducing the scope of their exclusive rights.
Following the ECJ’s ‘‘Magill’’183 essential facilities doctrine, when the copyright
holder with a dominant market position on one market competes with other
parties on a second market where the use of the copyrighted contents is necessary
in order to build a position in (hence, an ‘‘essential facility’’), a refusal to license
these essential facilities to the competitor/s is considered to be unfair exercise of a
dominant market position (this includes where the user depends on entering into
an agreement with each of the several entities sharing the dominant market
position, i.e., the copyrighted contents)
If we accept that news aggregation amounts to a different market from the
production and first distribution of news, then news works could be deemed an
essential facility and copyright owners (newspapers, broadcasters and news
agencies) be forced to license aggregators (as incumbents in the new market).
Whether we do accept this, of course, is a contentious point. This is territory in which
that the doctrines of competition law can help, and so this is a question to which there is a
legal answer. This work ought to be undertaken – and it should be established that news
aggregation and the like is not a new market – before one can conclude that the free
riding argument for a publishers’ right is appropriate.
182 Xalabarder, 'Google News and Copyright' , 161
183 ECJ Judgement of 6 April 1995, C-241/91 and C-242/92, ‘‘Radio Telfis Eireann (RTE) and Independent
Television Publications Ltd (ITP) v. Commission of the European Community’’.
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Conclusion
The free riding argument for a publishers’ right is based on the assertion that online re-
distributors of news are deriving an illegitimate benefit from the actions of news
producers: they are, to quote the nineteenth century English judge North J, reaping where
they have not sown. Whether this is the case or not is an issue susceptible to empirical
proof, but it appears that this has not yet been unequivocal.
What should one do in the absence of an unequivocal answer? It is the disruptors, the
online re-distributors of news, who bear the burden of proving their actions amount to
promotion rather than substitution. If they are unable to do so, then a publishers’ right
may be appropriate under the free riding argument.
However, there are some caveats to this conclusion. One is that online redistribution of
news may be a different market, and that would undermine the argument that a
publishers’ right would be appropriate. Another is that what the evidence does show, is
that there are differences between the interests of various publishers, and this may result
in different answers in respect of different publishers. This means there is an inherent risk
that a publishers’ right may skew the market in favour of larger players. This is a
significant concern, particularly for those who value media plurality and diversity.
It is not clear, therefore, that the free riding argument provides a compelling case for a
publishers’ right, without further evidence.
One final point is worth emphasising. This is that even if the empirical evidence
establishes that there is promotion, not substitution, this may not be the end of the matter.
This is because beyond the economic argument, there is an ethical argument that engages
issues of fairness. It might still be fair and right for there to be a publishers’ right, even
though online redistributors of news promote news publishers.
These are issues is that economics is ill-equipped to deal with. As Bertin Martens said:
I understand that the newspapers want to get a fairer share of the advertising
revenue that the platforms get from this business, but as an economist and I think
for most economists of the word fairness or the lack of it, unfairness, is a concept
we have a hard time to deal with.184
But the fact that economists have a hard time dealing with issues of fairness is not a
sufficient reason not to explore such arguments. It only means that the answers to the
dilemmas they raise are not to be found in empirical economic research. This brings us to
the last argument for a publishers’ right, as this is based – amongst other things – on
ethical considerations.
184 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Bertin Martens, session 3, transcript 42
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5 Natural rights argument – news, coal, and cabbages
The last argument for a publishers’ right that emerged from our research is the natural
rights argument for a publishers’ right. This does
prima facie support a publishers’ right,
though a very limited one, not least because there are very significant policy dangers in
permitting any increase in the private control of information that would result from it.
The argument
The central idea of the natural rights argument is that significant amounts of labour, skill
and judgment are involved in the production of items of news and published collections
of news – in its sourcing, verifying, selecting, writing or producing, compiling,
publishing and distribution.185 The expenditure of such effort should
prima facie merit
protection, the publishersright.eu website claims:
Given the huge investment and resources required to produce professional press
and other published content, it is only natural that press publishers should enjoy
the same rights as producers from other creative industries, as regards
reproduction and communication to the public (as set out in Articles 2 and 3 (2)
of the InfoSoc Directive 2001/29/EC), as well as a distribution right (as set out in
Article 9 (1) of Directive 2006/115/EC).186
But the argument is not only based on labour, skill and judgment. For, as was described
earlier, publishers argue that creative choices are made in assembling a published news
product, which is not a mere compilation of facts.187 As one interviewee emphasised in
our research, ‘there is more to putting a news publication together than making a
telephone directory’. This is because a key aspect of news publishing is that it occurs in a
vigorous market for attention, and the creative choices of news publishers are not
marginal, they are central, to the activity of publishing news in such a context. There is a
need to exercise skill and creative judgment in selecting, editing, and producing news to
attract and retain an audience, and build a brand.
One way of conceiving of a published news brand is as a collective personality, and
creative choices are involved in establishing how it should express itself. This leads some
almost see news publishers as stepping into the shoes of authors. For example, at the
Amsterdam Conference, Professor Dr Hegemann argued:
The question is – and I’m now looking to the author – how can we make it
possible that the author gets a reasonable share of the revenues that a third person
185 A useful account of the different elements of the process of news production in various different sectors
of journalism can be found in Mediatique,'The Provision and Consumption of Online News - Current and
Future'
186 European Publishers Council and others, (accessed
187 Text to n 136.
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makes on its contents that he produced? If they answer this question then the
news publishers come in with, as I’m convinced, a very reasonable claim to say
the author would not find its public without our creative work; with our financial
impact; our organisational impact; with what we do when putting together a group
of journalists as a ‘redaktion’ as we call it in Germany […] That’s the reasoning
behind that, at least in the German discussion, the news publishers say, well, if
here is a product that is the result of some creative doing we are in the position
that even us, the news publishers, should also be entitled to take a reasonable
share, whatever reasonable be, in the revenues third parties in the triangle make188
Given the involvement of labour, skill, judgment, and the creative choices in publishing
news and collections of news, publishers argue that copyright-like protection is
appropriate. This can be established through a publishers’ right.
The strong version
There can be stronger and weaker versions of the natural rights argument. A strong
version asserts that taking news without authority amounts to theft, as Rupert Murdoch
has claimed:
Producing journalism is expensive. We invest tremendous resources in our project
from technology to our salaries. To aggregate stories is not fair use. To be
impolite, it is theft. Without us, the aggregators would have blank slides. Right
now content producers have all the costs, and the aggregators enjoy [the
benefits].189
Inherent in this variant of the argument is the notion of control, as one interviewee
observed in our research:
In my view copyright is more of a moral and ethical issue. Popper and Hayek are
relevant. If copyright means anything it means if you make it you have the right
to choose who else copies it - especially commercially. That’s why many
publishers (and authors) object so deeply to Facebook, Google et al presuming the
right to do as they please with others content.
The weaker version
There are also weaker versions of the natural rights argument. One rejects the notion that
news is property and taking of it is theft, but recognises that news publishers should be
able to control the news they publish, in limited circumstances. This was the position
adopted by Pitney J in the famous case US Supreme Court case of
International News
188 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Jan Hegemann, session 4, transcript 68
189 Rupert Murdoch, Chairman and Chief Executive of News Corporation December 1, 2009 Source:
http://www.guardian.co.uk/media/2009/dec/01/rupert-murdoch-no-free-news. Cited in R Xalabarder,
'Google News and Copyright' in A Lopez-Tarruella (ed)
Google and the Law (T.M.C. Asser Press, The
Hague 2012)
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Service v Associated Press, which established the US doctrine of hot news
misappropriation.
And although we may and do assume that neither party has any remaining
property interest as against the public in uncopyrighted news matter after the
moment of its first publication, it by no means follows that there is no remaining
property interest in it as between themselves. For, to both of them alike, news
matter, however little susceptible of ownership or dominion in the absolute sense,
is stock in trade, to be gathered at the cost of enterprise, organization, skill, labor,
and money, and to be distributed and sold to those who will pay money for it, as
for any other merchandise. Regarding the news, therefore, as but the material out
of which both parties are seeking to make profits at the same time and in the same
field, we hardly can fail to recognize that for this purpose, and as between them, it
must be regarded as
quasi property, irrespective of the rights of either as against
the public.190
The natural rights argument can stand even if other arguments for a publishers’ right fail.
So, it might amount to a convincing reason for a publishers’ right even if (say) the
incentive argument was rebutted by the fact that insignificant revenue would be raised
from a publishers’ right, or the equality argument was rebutted by the fact that there was
no true inequality. The strong natural rights argument might still, under these
circumstances, be a reason to adopt a publishers’ right, on the grounds that publishers
ought to have a right to control what happens to the news they publish, as a question of
first principle. This is an ethical point: just as others can control what they produce from
the sweat of their brows, so news producers should be able to control the news they
produce.
Counter arguments
Is it convincing? Up to a point, yes. The skill and labour aspects of the argument may
seem inappropriate in relation to reporting patent facts, but are clearly relevant in other
circumstances. An example of this is where investigative work is involved. The natural
rights argument fits very well here, as labour, skill and judgment is required to gather
information in the first place, as well as to assess and formulate in a way that is attractive
to an audience, and to resist the common legal pressures that arise from those who want
to prevent publication.
But, even where the subject matter relates to basic patent facts, the argument is still
persuasive. Significant skill, labour and judgment is still required to put such facts in
context, evaluate them, and work out how to effectively communicate the information
and gain an audience’s attention by arranging them with others, while contributing to the
development of the news brand. Hence, as both situations involve creative acts and
creative choices, the natural rights argument for a publishers’ right is
prima facie a
convincing one.
190
International News Service v Associated Press
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That said, there remain cogent reasons why policy makers need to be wary about the
prospect of a publishers’ right that derive from natural rights arguments.191
The unattractive idea of news as property
The first reason is because the natural rights argument for a publishers’ right is associated
with the notion that news is a sort of property, and many liberal democratic societies have
been very wary of this idea.
This can be seen after considering a little history. The natural rights argument for a news
copyright-related law is not new. Tworek notes that ‘from the 1880s onwards, news
procurers attempted to combine Locke’s labour theory with the cost of collecting news,
hoping to create an indivisible association between protection of labour and the
protection of financial outlay’.192 These notions were evident in, for example, a leader in
The Times published in 1899:
The principle is that when a newspaper has expended labour, forethought, and
money in producing something which the public want to read, it ought to have the
same rights of property in its production that are enjoyed by those who uses [sic]
brains and capital in producing other articles having commercial value…193
Such arguments were still prevalent in 1936, when Sir Roderick Jones, the Managing
Director of Reuters tried to persuade a League of Nations conference to grant news
protection under the International Convention for the Protection of Industrial Property.
He argued that ‘news is as much an article of property as coal, or cabbages, or
diamond’.194
But these arguments failed to result in international treaties of copyright protection or
industrial property. The reasons for this are essentially the reasons why one should be
wary of a publishers’ right today. They are diverse, as Professor Hugenholtz noted at the
Amsterdam Conference:
in copyright all Berne union states and that’s about 168 states including all the
states that we consider civilised and a lot of uncivilised as well, are under an
191 This is leaving aside the cogent arguments that can be made against natural rights theories in general as
a means of justifying intellectual property. These are briefly indicated in Bently and Sherman 36-37.
192 Tworek 196
193
The Times 11 August 1899. Cited in J Bellido and K Bowrey, 'From an Author's to a Proprietor's Right:
Newspaper Copyright & The TImes (1842-1956)' (2014) Journal of Media Law, 6 (2) 206. An earlier
editor had a different view, when he wrote that the purpose of the
Times was ‘to obtain the earliest and
most correct intelligence of the time and instantly, by disclosing them, to make them the common property
of the nation’. Hargreaves15
194 Tworek 213
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obligation not to protect news of the day under copyright. There are a number of
reasons for not doing this: ideological, systemic, conceptual.195
News is a democratic good
One reason engages the notion explored earlier in this paper of how integral commercial
news is to the healthy functioning of a democratic state. News is part of the lifeblood of
an informed, participatory democracy.196 Indeed, if publishers seek to rely on this fact as
a reason for them to be treated in a way distinct from general publishers, then they need
to recognise that the close connection between news and democracy militates against the
natural rights argument for a publishers’ right.
One central reason this is so, is that permitting news to be owned as property, or
governed by a publishers’ right, risks imposing too much control over a very important
commodity. This risk is a motivating factor behind particular provisions in various fields
of law. One example can be found in the sector specific media merger regulations that
exist in many countries to prevent concentrations of media ownership.197 These are
designed to ensure media plurality and diversity. They exist, in part at least, to limit
undue concentrations of power arising from excessive control of the flow of information.
There is a risk, as a publishers’ right would increase the copyright-like protection of
news, that it would increase some political risks in democratic societies that other fields
of law have been designed to reduce.
One way of demonstrating this is to look at some features of historic and contemporary
international copyright law relating to news. These can be interpreted as a manifestation
of the view that news is a special case. We can start, as Xalabarder notes, with the Berne
Convention.
At the end of the nineteenth Century, the protection of news articles under
copyright was very limited and contested. In fact, Article 7 of the original Act of
the Berne Convention (1886) expressly stated that newspaper and magazine
articles published in any Berne Union country could be reproduced, in the
original language or in translation, unless the authors or editors had expressly
reserved so.198
This article no longer represents the law, but the current Berne Convention contains
provisions that are a legacy of this view. Article 2(8), for example, provides: ‘[t]he
protection of the Convention shall not apply to news of the day or to miscellaneous facts
having the character of mere items of press information.’ And it is also apparent in article
195 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Bernt Hugenholtz, session 3, transcript 45
196 Text to nn 8, 44, 91.
197 Comparative studies are found in Hitchens and chapter 7 of T Gibbons and P Humphreys,
Audiovisual
Regularion under Pressure (Routledge, Oxford 2012) provides a critique of the EU’s approach.
198 Xalabarder, 'Google News and Copyright'
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10bis(1), which says that articles published in newspapers or periodicals as well as
broadcasts on current economic, political or religious topics may be reproduced by the
press as well as broadcasted and communicated to the public, provided that such uses
have not been expressly reserved. Arguably, it is also present in the current article 10 of
the Berne Convention, the sole mandatory exception to copyright in the convention. This
provides:
It shall be permissible to make quotations from a work which has already been
lawfully available to the public, provided 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.199
The wariness of affording copyright protection to news is also evident in the history of
many national copyright doctrines. Bently, for example, describes the ambiguity in the
19th century as to whether copyright protected news.200 This was manifest in a series of
cases that culminated in the recognition of the distinction between ideas, which copyright
does not protect, and expression that it does.201 This can be seen as an attempt to strike a
balance between the interests of rights owners and the interests of the public in free-
flowing news.
This balance has been baked in to areas of copyright law. The idea/expression dichotomy
just described is one, and others include the various exceptions that exist in relation to
news reporting and press clippings. These can, no doubt, be seen by publishers as a bug –
a failure – of copyright and related doctrine, which impede their ability to control ‘their’
news. But it is better to see these doctrines as being deliberately constructed, a feature of
copyright, present to try to strike an appropriate balance between ownership, arguments
for natural rights, and the free flowing of information in a democracy.202
This does not mean that the natural rights argument has no merit. But it does means that
there are cogent reasons – evidenced in the structure and history of copyright law - to be
199 For a fuller study of the relationship between the iterations of the Berne Convention and news, see .S
Ricketson and J Ginsburg, 'Intellectual Property in News? Why Not?' in S Ricketson and M Richardson
(eds),
Research Handbook on Intellectual Property in Media and Entertainment (Edward Elgar
(Forthcoming))
200L Bently, 'Copyright and the Victorian Internet: Telegraphic Property Laws in Colonial Australia' (2004)
38 Loyola of Los Angeles Law Review 71, L Bently, 'The Electric Telegraph, and the Struggle over
Copyright in News in Australia, Great Britain and India' in B Sherman and L Wiseman (eds),
Copyright
and the Challenge of the New (Wolters Kluwer, Alphen aan den Rijn, The Netherlands 2012).
201
Walter v Steinkopff 202 RP Merges,
Justifying intellectual property (Harvard University Press, Cambridge, Mass. ; London
2011), 19. The argument that this ‘baking in’ is enough - that it pays sufficient regard to the interests of
free speech (of which free flowing information is an element) - has been widely criticized, for example, in
relation to UK law and article 10 of the European Convention on Human Rights, J Griffiths, 'Copyright law
after Ashdown - time to Deal Fairly with the Public' [2002, 3] Intellectual Property Quarterly 240.
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wary of a publishers’ right. Such a right would upset the delicate balance that has been
struck between natural rights arguments that support copyright, and other societal goods.
In short, news is somewhat different to other forms of content, because of its close
connection with democracy. One should be careful about upsetting the balance that has
been struck over the years within the doctrines of copyright law by enacting a publishers’
right.
The implications of mutual copying
A second problem with the natural rights argument arises from the actions of news
publishers themselves. This is because news publishers have honoured natural rights
theories of news more in the breach than the observance. There has been a long history,
which stretches back long before the days of printed news, of commercial news
publishers copying from each other.
This can be demonstrated with few examples. First, for example, Pettegree in his history
of news, describes the early news market in the low countries in the seventeenth century.
A comparison of a weekly issue of the Delft news-sheet of 10 May 1623 with that
of Broer Jansz two days before shows that 90 per cent of the Delft reports were
lifted unaltered from the Amsterdam paper.203
A hundred years later, and in England, the practice is mentioned as being so
commonplace, it is hardly worth mentioning:
A third method taken by these dexterous sons of mercury [newspaper publishers],
to supply themselves with matter, is to steal from one another. They copy every
tale that is published to their hands, good and bad, without distinction; and the
most bare-faced lie, as well as the post pitiful trifle, once published, has the
sanction of them all. But every body knows this so well, that ‘tis needless to dwell
on it. […] Most of the said papers having little of novelty, or any other merit, to
recommend them, being only copies or extracts from one another…’204
And the practice is prevalent today, was noted at the Amsterdam Conference by Bertin
Martens:
Ripping nowadays is the universal phenomenon in the newspaper industry.
Somebody did a study last year on the French newspaper industry, Julia Cage and
some of her researchers from Paris Telecom and they monitored a number of
newspaper websites, 50 or 60 newspapers in France for a period of time. What
they found is as soon as a new event, news item appears on one newspaper’s
website, within half an hour or 40 minutes it appears on everybody else’s website,
203 A Pettegree,
The invention of news : how the world came to know about itself (Yale University Press,
New Haven ; London, England 2014)189,
204 Coffee-Man
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which means that they are just monitoring each other and as soon as something
news appears they take that news event, rewrite it a little bit and then post it on
their own website. So ripping in that sense has become a universal phenomenon
in the newspaper industry, not because of the aggregators but in the industry
itself.205
What are the implications of this for a publishers’ right? It tends to undermine the natural
rights argument for copyright, or copyright-like protection. The fact that news publishing
does, and has always, involved re-writing the published news of others, means it is
somewhat incoherent for newspapers to complain when the activity they undertake
themselves, is undertaken by others – in this case, online news redistributors.
Of course, it remains appropriate to complain about the consequence of the activity,
because for example it is happening to such a degree that commercial news is no longer a
viable activity (the incentive argument), or because it is unprecedented in scope (the free
riding argument). But it undermines publishers’ complaints about others exerting control
over the material which they assert they have a natural right to, when at the same time
they are breaching exactly similar natural rights possessed by others. It is difficult, in
other words, for news publishers to assert a natural rights argument for the protection of
news, when they themselves violate the natural rights of others, just as their forebears
have done for centuries.
The limits of the notion
Even if, despite this, the natural rights argument still provides a reason to adopt a
publishers’ right, an analysis of the way natural rights arguments work in practice
supports the observation that it should be limited. This is because, even when natural
rights arguments are reflected in copyright and related laws, they are not absolute. Again,
to quote Professor Hugenholtz at the Amsterdam Conference:
even in societies like the ones where we are here and like the ones in Germany
where authors’ rights are primarily grounded on natural rights’ philosophies, the
scope of rights are not limitless. The scope of rights is not limitless. We have
everywhere in Europe accepted, including in Germany, a rule of exhaustion, for
instance. We do not control after-markets for reasons that have a lot to do with
competition and manageability of rights and legal certainty. All the same reasons,
I think, that also would restrict any kind of an aggregation right into something
very limited if existent at all. 206
205 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Bertin Martens, session 3, transcript 42. See also
Express Newspapers v News (UK) Ltd [1990] 1 WLR
1320 Sir Nicholas Browne-Wilkinson VC, 380 & 383 ‘I think [it] is the practice of the national press, […]
to search the columns of other papers to find stories which they have missed and then using the story so
found in their own newspaper by rewriting it in their own words.’
206 , Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR
Conference Bernt Hugenholtz, session 4, transcript 73
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As there frequently are appropriate limits set to the legal rights that flow from natural
rights arguments for copyright and related rights, and so it is also appropriate to limit any
publishers’ right that arises from natural rights arguments. Moreover, there are
particularly strong reasons to limit such a right in such a case. This is again because of
the central importance of news to democracy. If there is an extensive right over news, in
time, ambit or strength, then the risks of undue control over the flow of information
described in the last section become more cogent. Hence, even if a publishers’ right is
appropriate, is should be afforded to a limited class of people, limited in duration, in the
acts that it regulates, and made subject to a wide range of exceptions.207
The fact that the natural rights argument should only lead, if at all, to a limited
publishers’ right was highlighted by one, slightly cryptic, question at the Amsterdam
Conference. The question concerned school books, but the point was more general.
[my question relates] to the basic idea that right owners should participate in the
revenues that are generated by using their content. Should school book publishers
participate in the live income of the kids that read their books? That’s the
question, I think. I mean, they base everything on that.208
One must ensure, the questioner was implying, that the ramifications of any natural rights
argument are not excessive. Just as any natural rights of book publishers do not extend to
control the benefits that accrue from their work to their child readers, so too any
publishers’ right based on an idea of natural rights must also be limited.
Conclusion
The natural rights argument for a publishers’ right is persuasive, insofar as valid, as
labour, skill, judgment and creative choices are involved in the production of an edition
of published news. However, there are cogent reasons to be wary of a publishers’ right,
nonetheless. A first arises because of the integral nature of published news to a
democratic state. (This is a connection that is asserted by publishers in other contexts, for
example when they seek to establish why they are different to other publishers.) This
connection exists because news is seen as a powerful force in a democracy, and that
means that it is advisable for policy makers to think long and hard before increasing any
protection afforded to news, including by means of a publishers’ right that might entail
greater control over information.
Moreover, the natural rights argument for a publishers’ right is undermined by the
common practice of news publishers frequently not to respect any natural rights that
might exist in news that are possessed by other publishers.
207 The point about the limited duration of any right is discussed further in the text to n 213.
208 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
session 4, transcript 74
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77
And finally, even if the natural rights argument for a publishers’ right is viable, it should
only lead to a limited and restricted right, as can be the case with other natural rights
arguments.
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6 Conclusion
On balance, intervention to benefit the commercial news industry is merited, but a
publishers’ right has not been demonstrated to be an appropriate way to intervene to do
so.
The four arguments, considered separately
Four arguments for a publishers’ right were considered, which emerged from our
research.
The incentive argument was considered the most important, and was examined in most
detail. This proposes that commercial news is of great value to our democracy, that it is
likely to be under-incentivised partly as a result of the growth of the Internet, and that EU
copyright and related laws were arguably part of the reason for this. The argument
provides a persuasive case for intervention to assist the commercial news industry, but
does not give sufficient reason to justify that intervention being by means of a copyright-
related publishers’ right.
The equality argument asserts that news producers have been omitted from the corpus of
rights-holders under EU copyright and related law, and that this is an inconsistency that a
publishers’ right would remedy. However, for such a case to be convincing, more work
needs to be done on why various rights holders have been afforded rights in EU law in
the first place, whether these reasons are still pertinent, and whether news publishers are
substantively in a similar position to those rights-holders. Furthermore, any attempt to
resolve this apparent inconsistency is likely to raise other inconsistencies, and impose
costs on third parties. Some justification for this needs to be provided, but the equality
argument is incapable of providing this. In any event, the absence of any text of a
publishers’ right makes it is difficult to assess what costs might be created by a
publishers’ right, and whether they’d be appropriate.
The free riding argument claims that online news re-distributors are benefitting from the
work of news publishers without paying sufficient compensation. But more empirical
economic research is required before this can be accepted. In particular, regard has to be
paid to the different interests of different news publishers, and to the question of whether
a new market has been created by online actors such as news aggregators and media
monitoring organisations, and it must be borne in mind that any right might benefit larger
publishers, damage smaller ones and therefore risk media plurality and diversity.
Finally, the natural rights argument for a publishers’ right was considered. This holds that
a publishers’ right would appropriately reflect the effort and creativity of news publishers
in producing both news and published collections of news. This argument is convincing
as far as it goes, but it would only supports a limited publishers’ right. The main reason
for this is that any publishers’ right would tend to increase private control over the flow
of information in a democracy. And, moreover, any case that publishers have a natural
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right to news they publish is undermined by the fact that they copy each other’s news,
and always have done.
The arguments, aggregated
When each of these arguments is considered separately, they do not provide unequivocal
support for a publishers’ right. But when aggregated, they may.
An aggregated argument would run as follows. The incentive argument provides a reason
for intervention, as news producers are losing money, and because they face a systemic
risk, intervention is merited. The reason a publishers’ right is an appropriate intervention
can be provided by the natural rights argument, as publishers ought to have a right to
control the news they produce. Moreover, the free riding argument says that one reason
they are losing money is because their product is being misappropriated without
sufficient compensation by online news-redistributors. And one reason this situation has
been allowed to arise, says the equality argument, is because news publishers are not
protected in EU law in the same way other publishers are.
In aggregate, it seems there is a plausible case for a publishers’ right. But there are two
reasons why the argument is still not convincing.
The first is that each of the caveats to each element of the aggregated argument still
applies. So, for example, it remains unclear whether there is free riding, in the absence of
better and more thorough empirical economic research. And the case that there is an
inequality in the provision of rights under EU copyright law has not convincingly been
established, because we don’t know in sufficient detail why the earlier rights were
created, and so whether there really is any inconsistency. The aggregated case is no
stronger than the weakest of its composite parts.
The second reason why a publishers’ right is still not sufficiently supported by this
account is that, and this has been a recurrent theme in this paper, so much turns on the
detail what a publishers’ right, and we do not have this detail. The devil, as is frequently
the case, is in the detail. It is therefore impossible to say whether – for example – a
publishers’ right will be efficient, effective, and appropriate, and will not incur
indefensible costs on third parties, because we do not have a text. Aggregating the
arguments together does not remove this difficulty.
Other problems with a publishers’ right
These concerns about the absence of a specific text lead to some final necessary
observations, sketching out some further difficulties related to the wording of any
publishers’ right that haven’t been canvassed so far. The first relates to definition, the
second to duration, and the third to the wider doctrinal context into which any publishers’
right must fit.
Problems of definition
The first problem is that it is very difficult to identify what, exactly, should be the ambit
of any right, given the difficulties that exist in defining news. What is it for which
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protection is sought? Can we in any way relevant to copyright laws distinguish the news
from other content? It is notorious that it is difficult to describe what news is, as has been
recognised for a number of years.209 Hence, we have another problem in boundary
drawing, which inherently leads to problems of inconsistency and over-breadth. Again,
Professor Hugenholtz made the point at the Amsterdam Conference:
So there, even if we would generally accept in Europe your proposition, which is
sympathetic to all of us, that at least authors deserve some participation in
whatever profit is made wherever of their works, even that does not necessarily
lead to the recognition of a right if, as we have seen in all the discussion so far,
such a right is impossible to define. Its subject matter is vague, if definable at all.
Its implementation at a national level are hopelessly unsuccessful.210
True, problems of definition and line drawing are widespread in law, and indeed inherent
to law making. Perhaps there will always be inconsistencies where line-drawing is
concerned, as was argued earlier. And there is reason to suspect that, as Professor
Schauer, an American legal philosopher has observed (albeit in another context) treating
things that are unlike as alike is simply what rules do.211 So perhaps one shouldn’t be too
concerned about difficulties of definition.
But there is a particular concern in relation to news. This is related to the idea/expression
dichotomy, described earlier. The problem is that it is difficult effectively to protect
news, without protecting creating a right of great ambit. To quote Professor Hugenholtz,
again:
News simply does not have sufficient form to produce, to generate creative
original works to which copyright can actually attach. Items of information in
other words are too abstract, there are only so many ways to express a news item.
[...] How could we prove infringing misappropriation of these abstract facts that
have no shape? How could we prove that we extracted it from this news producer
and not from that? […] Introducing a neighbouring right for news publishers
could perhaps solve this originality issue but it would never deal with in a
satisfactory way with the issues of scope and of evidence that are attached to
that.212
209 ‘I think news is an impalpable thing and I have never seen a formula composed to define it […]
Whatever it is interesting to the man in the street is news, it may be great events, or it may be trivial things,
but, if it interesting to him, any event, I would say, was news.’ Sir Roderick Jones (1878-1962), MD
Reuters, Sykes Broadcasting Commission, June 5 1923, cited in a draft of Tworek. This is a rather wide
definition, to say the least. See also Part II in Ricketson and Ginsburg. See also text to n 144.
210 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Bernt Hugenholtz session 4, transcript 73
211 F Schauer, 'Towards and institutional first amendment' (2005) 89 Minneapolis Law Review 1256, 1269
212 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Bernt Hugenholtz, session 3, transcript 46
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Hence, this instance of over-breadth is something to which we should pay especial
attention. This is because of the central importance of news to democracies. Here we
have reason to be particularly careful of over-breadth, because we ought to be concerned
about some agents gaining too much control over too much information, which they
would if ‘news’ is defined too broadly.
Problems of duration
A second issue is that, given the concerns described at length earlier, if there is any
publishers’ right, it should be no longer than is necessary. There can be no justification
for a right to protect a perishable commodity like news that lasts 70 years from the death
of its author. However, that is what a neighbouring right might provide. Professor
Hugenholtz drew attention to this issue at the Amsterdam Conference.
There have been in the past many attempts at the international level, particularly
to introduce some sort of specific protection for the news industry, particularly in
the form of news bureaus, news agencies like Reuters and AP in the past. Many
of those proposals were about very short term protection schemes of 24 hour or
48 hours in line with [the American doctrine of hot news appropriation]. A very
short period of protection would probably be sufficient that’s totally different
from what neighbouring rights generally has on offer. There a term of 20 years is
sort of the minimum and it’s moving towards 50 or even 70 years, so we’re
talking about very different kind of rights and needs. There are actual several
countries, I’ve been studying this, in the world that have such unfair competition
law based very short term protections, for news producers I don’t think these are
ever enforced in the digital realm but we have them and they are yes, certainly an
interesting model to look at. They’re not neighbouring rights, they’re specific
rules of unfair competition.213
It is therefore worth considering, as an alternative to a neighbouring right, ‘hot news’-like
laws when considering what any publishers’ right might look like. These are laws that
resemble the US ‘hot news’ misappropriation tort, which was described by Chris Beall at
the Amsterdam Conference.214 In essence, ‘hot news’ laws protect news against other
news publishers, but only for the short time it remains commercially valuable.
Indeed, as Professor Hugenholtz mentioned, there are some contemporary European laws
of this type. For example, s 72 of the Danish Copyright Act provides that ‘Press releases
supplied under contract from foreign news agencies or from correspondents abroad, may
not without the consent of the recipient be made available to the public through the press,
the radio, or in any other similar manner until after 12 hours after they have been made
213 Ibid. Bernt Hugenholtz, session 3, transcript 51
214 Ibid. Chris Beall, session 2. These flow from the US Supreme Court decision of
International News
Service v Associated Press : see text to n 190.
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public in Denmark’.215 A similar provision can be found in Italian copyright law, but the
duration of protection is 16 hours.216
But our research confirmed Professor Hugenholtz’s findings that these are doctrines that
are not considered effective in those jurisdictions where they are present. Uncertainty and
lack of use seem to surround them, and it seems they have not been used significantly in
contemporary times. In relation to a provision that exists in Danish law, an interviewee
said ‘no one knows what it is protecting – news as such, or the complete formulation of
the press release….there have never been any cases on it.” An Italian interviewee said he
though the law had been ineffective, and there had been little litigation on the subject. 217
Other doctrinal concerns
The third point is to emphasise that the text of any publishers’ right will have to be
considered against various legal doctrinal requirements.
In general terms, the text would have to comply with international or regional copyright
law. Professor Xalabarder has undertaken such an analysis of the Spanish law,218 and
Professor Bently laid out some of the considerations that an EU publishers’ right would
need to take into account at the London Workshop.219
More specifically, there are important discussions to be had about the extent to which any
publishers’ right complies with the Berne Convention, particularly the mandatory
quotation exception provided for in article 10. There are also significant questions of the
extent to which a publishers’ right would comply with the Information Society
Directive.220 Bently has argued that as well as creating a ceiling limiting the extent of
exceptions to copyright that are permissible, one of the effects of the Information Society
Directive has also been to create a floor. This means that any legislation that the EU or
215 An English translation is available from the Danish Ministry of Culture: Kulturministeriet,
'Consolidated Act on Copyright 2014, Act No 1144 of October 23rd, 2014)' (Kulturministeriet 2014)
<http://kum.dk/fileadmin/KUM/Documents/English%20website/Copyright/Act_on_Copyright_2014_Lovb
ekendtgoerelse_nr._1144__ophavsretsloven__2014__engelsk.pdf> accessed 18 January 2016
216 Article 101. An unofficial English translation is available from Unesco Unesco, 'Italian Copyright
Statute' (2004)
<http://portal.unesco.org/culture/en/files/30289/11419173013it_copyright_2003_en.pdf/it_copyright_2003
_en.pdf> accessed 22 January 2016
217 In contrast, a Finn interviewed for our research indicated that the Finnish version of this law was, in his
opinion, effective, even if there had been little litigation on the subject. This, perhaps, reflects different
cultural evaluations of how the effectiveness of laws can be gauged with reference to the presence or
absence of litigation. The Finnish provision is section 50 of the Copyright Act, and sets out a timescale of
12 hours. An English translation is available from the Finnish Ministry of Education and Culture,
'Copyright Act' (2010) <http://www.finlex.fi/en/laki/kaannokset/1961/en19610404.pdf> accessed 21
January 2016.
218 Xalabarder.
219 Danbury, (accessed
220 Info Soc Directive 2001/29/EC
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Member States bring in – such as a publishers’ right - that is more protective of copyright
material than is permitted by the EU legal acquis, may well be in breach of EU law.
Further, as Professor Hargreaves observed at the Amsterdam Conference, questions need
answering about the basis in EU law of any proposed right. It would have to be clarified
why such a right promotes the aims of the Digital Single Market, or is appropriate under
another source of EU competence.221 Similarly, thought would have to be given as to the
extent to which such a right might violate the principles of free movement of goods and
services within the EU, and if so whether this would be doctrinally acceptable. In other
areas of law, Dr Henning Grosse Ruse-Khan has observed that the extent to which any
right complies with the requirements of World Trade Organisation law might need to be
considered.222
Finally, and of great importance, as was highlighted at our conference by Professor
Eechoud, is the fact that any new right would have to comply with the EU’s fundamental
rights regimes, either set out in the Charter or the Convention.223 Professor Eechoud
summed up her view of the difficulties a publishers’ right faces:
the million dollar question [becomes] is such a right necessary in a democratic
society to protect legitimate interests? This is European Convention of Human
Right type analysis. […] So, from the free speech perspectives I’d definitely say
to the European Commission this is a case where you really need to err on the
side of caution and follow the precautionary principle and do not legislate
publishers rights because we know it has certain costs, even if we don’t know the
scale of them, and it has undefined benefits224
221 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
' (accessed Ian Hargreaves, session 3. See text to n 42 for a possible answer.
222 Personal communication and H Grosse Ruse-Khan, 'The End of Google's Reign in Spain?' (2014)
<http://worldtradelaw.typepad.com/ielpblog/2014/12/the-end-of-googles-reign-in-spain.html> accessed 14
June 2016
223 Charter of Fundamental Rights of the European Union [2000] OJ 364/01, Convention for the Protection
of Human Rights and Fundamental Freedoms (European Convention on Human Rights) 1950.
224 Centre for Intellectual Property and Information Law University of Cambridge, 'CIPIL/IViR Conference
Mireille van Eechoud, session 4, transcript 67
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Appendix: Some prominent relevant copyright-related cases
Australia
Fairfax Media Publications Pty Ltd v Reed international Books Australia Pty Ltd
225
Belgium
Google v Copiepresse (First Instance, re-hearing)
226
Belgium
Google v Copiepresse (Appeal)
227
Denmark
Danske Dagblades Forening v Newsbooster228
Denmark
Infopaq v Danske Dagblades Forening I (CJEU)
229
Denmark
Infopaq v Danske Dagblades Forening II (CJEU)
230
Denmark
Infopaq International A/S v Danske Dagblades Forening 231
EU
Svensson v Retriever Sverige AB232
Germany
“Paperboy”233
Germany
Elektronischer Pressespiegel Judgment of 11 July 2002 I ZR 255/00
Spain
Megakini (Pedragosa v Google), Supreme Court234
UK
Newspaper Licensing Agency v Meltwater Holdings (Court of Appeal)
235
UK
Public Relations Consultants v Newspaper Licensing Agency (Supreme Court)236
UK
Newspaper Licensing Agency Ltd and others v Public Relations Consultants
Association Ltd (CJEU) 237
USA
Barclays v Theflyonthewall.com (Appeal) 238
225 [2010] F.C.A. 984 (Federal Court of Australia)
226 13 February 2007; No 06/10/928/C of the general roll (Court of First Instance, Brussels)
227 Presented 11/5/2011, Cause List No: 2007/AR/1730 (Court of Appeal of Brussels, 9th Chamber)
228 SHD February 19, 2003, Case V 110/02
229 C-5/08, [2009] EUECJ C-5/08 (16 July 2009)
230 C‑302/10, [2012] EUECJ C-302/10
231 Case 97/2007, 15 March 2013
232
Svensson v Retriever Sverige AB C-466/12, [2014] Bus LR 259, [2014] ECDR 9
233
"Paperboy" Judgment of 17 July 2003 (BGH I ZR 259/00), BGH [2001] GRUR 958 (German Federal
Supreme Court)
234
Megakini [Pedragosa v Google] Tribunal Supremo (Civil ch.) Sentencia n. 172/2012, 3 April 2012 ,
discussed in R Xalabarder, 'Spanish Supreme Court Rules in Favour of Google Search Engine... and a
Flexible Reading of Copyright Statutes?' (2012) 3 Journal of Intellectual Property, Information Technology
and Electronic Commerce Law 162
235
Newspaper Licensing Agency v Meltwater Holdings [2011] EWCA Civ 890
236
Public Relations Consultants Association v Newspaper Licencing Agency (Meltwater) [2013] UKSC 18
237
Newspaper Licencsing Agency Ltd and others v Public Relations Consultants Association Ltd Case C-
360/13; [2014] WLR (D) 244
238
Barclays Capital Inc v Theflyonthewall.com Inc 650 F.3d 876, 2011 Copr.L.Dec. P 20,117, 99
U.S.P.Q.2d 1247, 39 Media L. Rep. 2009, 77 A.L.R.6th 793
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85
USA
AP v Meltwater 239
239
Associated Press v Meltwater 931 F.Supp.2d 537, S.D.N.Y. Mar. 21, 2013 (US District Court for
Southern District of New York)
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Document 2
Paper from EDiMA, Impact of ancillary
rights in news, 25/11/2016
(Ref.Ares(2016)2874320)
87
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.
1
88
The impact of an unworkable and invalid concept
Negative impact on innovation The laws in Spain and Germany concerning ancillary rights still
European start-ups hit by ancillary rights
appear to face near-insurmountable challenges in their practical
implementation. Their scope is very broad, affecting many
“The development of mobile apps sorting
online activities, including linking and quoting and many
information and data, an area with an
services, from websites to apps. Moreover, they touch upon a
interesting future, will remain curtailed in
vast array of creative works, as “news” is a malleable legal
Spain”, Niagarank, a now closed product of
concept encompassing content that is regularly updated.
Spanish start up CodeSyntax, employing 15.
Small innovative companies are impacted as a result. For
“A legal dispute with [the German publisher
smaller European companies ancillary right provisions represent
association] would have dragged on for
a strong deterrent because of the legal uncertainty and the
years, finally leading to bankruptcy of
enforcement through collecting societies. These concerns were
tersee.de - regardless of the outcome. Four
already raised before the adoption of the law in Germany, but
years
of
intensive
research
and
were not taken into account. In Spain, Planeta Ludico,
development would have been for vain. We
NiagaRank, InfoAliment and Multifriki have already closed
thought about removing German media
down, in addition to Google News (AEEPP/NERA, 2015).
from our search index and to relocate our
headquarters abroad”, Mikael Voss, from
tersee.de, a German start-up.
Ancillary rights would also create a competitive advantage for
already established, successful online services, making it harder
Other start-ups and services already
for new European companies to compete and develop new
affected in Germany and Spain include
services. There is a wealth of scientific opinions supporting this
Radio Utopia (news agency), Unbubble.eu,
view, from the Max Plank Institute to the report of the Spanish
Links.Historische (news for historians),
Competition authority.
Rivva (blog aggregator), Nasmua.de (news
search
engine),
Newsclub.de,
Services impacted - Spain
commentarist.de,
DeuSu.de,
Planeta
Ludico, NiagaRank, InfoAliment, Multifriki,
Social
Newsfeed
Networks
Meneame, Astrofísica y Física, Beegeeinfo…
readers
(Twitter,
(Feedly,
Facebook,
Flipboard)
Google +)
Services and publications that rely on
Social
Blog
disseminating
content
under
creative
Marketing
aggregators
commons type licenses cannot escape the law.
(Mktafen,
(Divoblogger,
Marketer Top)
Bitacoras)
Similarly, scientific publications that rely on
open access, e.g. Public Library of Science,
Scientific and
News
would see a fee collected for the circulation of
Technological
Aggreators
their information (Xalabader, 2014). This
Information
(Meneame,
(Divulgame,
Huffington
hampers innovation and knowledge sharing in
Barrapunto)
Post)
Europe.
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89
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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92
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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93
Online services increase diversity and pluralism
European online news users access significantly more news brands than offline users. Users of social media, mobile
apps aggregating news and search tools read more diverse news sources.
UK
FR
ES
FI
IT
DK
IE
DE
Online Offline
Online Offline
Online Offline
Online Offline
Online Offline
Online Offline
Online Offline
Online Offline
users Users
users Users
users
Users
users
Users
users Users
users Users
users Users
users Users
# of
news
4.28
2.8
6.12
3.28
6.83
4.13
6.12
3.96
7.05
4.61
6.61
4.47
7.07
4.88
7.07
4.64
brands
accessed
Number of news brands accessed, comparison between online and offline news users. Source: Reuters, 2015.
News aggregators allow readers to consume more news overall (AEEPP/NERA, 2015).
French readers are found to consume more news, especially local news, when their news portal service is relevant
to their geographical location (Athey and Mobius, 2015).
Internet users in Germany and Italy visit new, smaller sites for their information, in addition to their usual sources.
The Italian Institute for Policy and Data Valorisation finds that services such as search engines are significant in
allowing smaller, alternative sources to be discovered and gain traffic.
Sources:
Susan Athey and Markus Mobius (2012), The Impact of News Aggregators on Internet News Consumption: The Case
of Localisation, Preliminary research presented at seminars at Microsoft Research and Toulouse Network for
Information Technology. Available here.
Luca Bolognini et al. (2014), The Effects of Search Engines on the Pluralism of Information, Italian Institute for Policy
and Data Valorisation. Available here.
European publishers leading in digital
Digital sales of The Economist have risen 47% in one year. Over two thirds of the FT’s total paying readership is
online (and its digital circulation is growing 33% per year) and mobile is now generating 50% of total traffic. At the
Guardian, print revenues remained stable in 2014 but digital revenues increased 24%.
In Germany, Axel Springer reports that more than half of revenues for 2014 were generated from digital activities
and an increase in profits of over 13%.
In Italy, two of the larger national newspapers have successfully implemented paywall strategies. Italy’s RCS Media
Group, owner of the Corriere della Serra, reported that for the first nine months of 2012, some 20% of paid
circulation came from digital subscribers and that digital revenues accounted for around 15% of group revenues.
Sources:
Reuters Institute, ibid. Available here
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Document 3
EPC, Draft Position Paper: Presenting the
Case for a Publishers' Exclusive Right,
31/08/2015 ( Ref. Ares(2016)5575203)
95
Note of the Commission: despite the watermark
"confidential", the former motivation and/or
background for putting that watermark are not
regarded as being relevant and persistent any
longer, not least since The European Publishers
Council also agreed to the disclosure of this
document
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Document Outline