Ceci est une version HTML d'une pièce jointe de la demande d'accès à l'information 'Notification of German Ancillary Copyright law'.




Ref. Ares(2020)3417416 - 30/06/2020







II. Speaking points
• Thank you very much for attending this meeting at a very
short notice. As you know, this is the follow up to the very
useful roundtable meeting we had with the news
publishers on the 25 January and of other meetings I have
had with the books and scientific publishers on copyright
matters.
• As you know, the Commission is committed to make sure
that the Digital Single Market is a fair market, where the
creative industries can get a fair return of their investments
and innovative services can be developed. We have made
our objectives clear in the Copyright Communication
adopted on the 9 December last year.
• A well-functioning copyright market place is important for
Europe's competitiveness, but as far as your sector is
concerned, goes far beyond economic considerations. The
content that you produce is very important for our
societies: it helps our citizens forming their opinions on
public issues and making informed decisions; it helps
advancing scientific progress; it contributes to our
European culture.
• As indicated at our roundtable on 25 January, we are
taking seriously the concerns of the publishing industry.
We have taken note of the common position expressed by
news publishers on that occasion: the request that
publishers should be granted a new neighbouring right in
EU copyright legislation.
• Today, I have decided to also invite representatives of the
book and scientific publishing industry I am aware that
different publishing sectors are facing different challenges
and opportunities in their transition to the digital
environment. The specificities of each publishing sector,
news, books, scientific publishing, will have to be taken
into account when assessing the need for a possible
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IV. Background
1. Q/A note presented at the meeting with SG and Cabinets Juncker, Ansip
and Oettinger on 25 February 2016

What is a neighbouring right? 
A neighbouring right is a right similar to a copyright although in certain cases the level of 
protection granted by a neighbouring right can be lower than the protection granted by 
copyright. Different from copyright, neighbouring rights do not reward an original creation (a 
work). They reward either the performance of a work (e.g. by a musician, a singer, an actor) 
or an organisational or financial effort which may also include a participation in the creative 
process. The EU framework grants neighbouring rights to performers, film producers, record 
producers and broadcasting organisation. Rights enjoyed by neighbouring rightholders under 
EU law generally include (except in specific cases) the exclusive rights of reproduction, 
distribution, and communication to the public/making available). EU law also grants a "sui 
generis" rights (more limited than a neighbouring right) to the makers of non-original 
databases (to reward the cases of a substantial financial or time investment)1. 
Neighbouring rights usually have a shorter protection term than copyright (in most cases 50 
years) and their "national treatment" (i.e. the obligation to protect neighbouring right holders 
form third countries) is more limited. At international level, protection is granted (to different 
extent) to performers, phonogram producers and broadcasting organisation (in the 1961 Rome 
Convention, the TRIPs Agreement, the 1996 WIPO Performances and Phonograms Treaty 
and the 2012 Beijing Treaty). 
What is a publisher? 
A new neighbouring right for publishers would require defining the term 'publisher'. The term 
publisher is not defined in EU copyright law. A definition could either be based on the 
activity of the relevant persons or on their products.2 It should be noted that the activities of 
publishers continuously develop, particularly in view of the use of new technologies. For 
example, their products might increasingly contain not only text but also audiovisual 
elements.  
The term publisher can be used to refer to press publishers (including magazines), book 
publishers, publishers of scientific publications and music publishers (these are the companies 
that publish musical works, promote and manage the works of composers and song writers). 
1 A "sui generis" right also exists for the protection of the makers of semiconductors under the specific directive.  
2 The German Copyright Act defines a press publisher as the producer of a press product. A press product is "the 
editorial and technical fixation of journalistic contributions in the context of a collection published periodically 
on any media under a single title, which, following an assessment of the overall circumstances, can be regarded 
as predominantly typical for the publishing house and the overwhelming majority of which does not serve self-
advertising purposes. Journalistic contributions shall include in particular articles and illustrations which serve 
to provide information, form opinions or entertain.

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The rest of this note assumes that a possible EU intervention will cover "print" publishers 
(press, book publishers, and scientific publishers). 
On what basis do publishers currently exploit their products? 
Under current EU law, publishers of press products or books do not have neighbouring rights.  
Press publishers licence/enforce rights either on the basis of the rights that authors (e.g. 
journalists, novelists, writers, photographers) transfer to them contractually and/or (in some 
Member States) as authors of "collective works"(e.g. ES, PT). In some MS (e.g. UK, NL, IE), 
a publisher is, in principle, considered the first owner of the copyright of a work made by an 
employee (e.g. a journalist) in the course of his employment. This state of affairs has allowed 
publishers to authorise (or prohibit) the making of copies of books/journals and their 
distribution, and the making available online of books/journal. This also includes the cases 
where not the whole book/journal is used but also a part of it (e.g. the use of excerpts for a 
press review).  
In some countries publishers have also been granted (by law of by practice) a share in the 
compensation for certain copyright limitations (notably in the case of levies for private 
copying/photocopying). Publishers have been put under pressure in this area by the recent 
"Reprobel" decision of the CJEU (see below).  
What would be the difference between an EU neighbouring right for publishers and the 
Spanish and German "ancillary rights"? 

Germany and Spain introduced laws granting new rights to press publishers. Both approaches 
target specifically the online aggregation of small excerpts ('snippets') and are usually defined 
as "ancillary" rights. Whereas the Spanish law consists of a mere remuneration right 
(technically the compensation for an exception) for press publishers subject to mandatory 
collective management, the German law is an exclusive right with a very short term of 
protection (1 year) and limited scope (only snippets of press products). A neighbouring right 
for publishers would imply a more fundamental amendment to the EU acquis, granting an 
exclusive right to press and book publishers for all kinds of exploitations, comparable to the 
rights of film and music producers (see above "what is a neighbouring right?"). 
How is the relationship between authors and publishers evolving in the platform economy? 
Authors have been experimenting with alternative publishing models both in the press and in 
the book business. These experiments have not lead to a substitution of the traditional 
publishing model though, and often involve professional publishers. In the press business, 
many journalists have started own blogs. With a few exceptions of well-known journalists, 
these blogs often serve as complementary publications linked to the publishers' websites. 
Typically, these blogs are closely linked to the brand of specific publishers and benefit from 
the readership the latter attracts. In the book business some authors have been testing self-
publishing models, often as a way to gain reputation before joining a publisher. However, 
self-publishing has not emerged as a mainstream publication channel.  
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Why are press publishers asking for an own right now? 
The origin is the difficulties press publishers face when seeking to monetise online uses of 
their content, in particular by online platforms (such as news aggregators) that link to press 
articles freely available online and/or use excerpts ("snippets") of articles without acquiring 
licences from the right owners. At the same time, due to the dominant positions of these 
platforms, many publishers depend on the web traffic generated by them. In addition, (some) 
press publishers have reported problems protecting their products against piracy on the basis 
of the enforcement of (the underlying) authors' rights. They have mentioned national cases 
where courts have asked them to prove the entire chain of rights (i.e. that they have acquired 
the rights for various writers, photographers and other authors) before being granted the 
required relief.  
Over the last few months the position of press publishers has evolved from an original request 
for an ancillary right for snippets (similar to the national solutions attempted in Germany and 
Spain) to a request for a full neighbouring right. The use of the press online is rapidly 
evolving and it seems they have concluded that they need to take a much more forward 
looking position. The request is backed by the four main umbrella associations EPC, EMMA, 
ENM and ENPA. 
Moreover, publishers (including book publishers) argue that the introduction of a specific 
neighbouring right is necessary given the recent "Reprobel" judgment of the CJEU3. The 
Court noted that publishers do not qualify as right owners under EU law and ruled that, on the 
basis of EU law, they cannot therefore be granted a share of the private copying or 
reprography levies alongside authors. We are still analysing the concrete implications of this 
decision.  
Are book publishers asking for an own right too? 
We are not aware of a formal position from book publishers yet (nor of scientific publishers). 
So far they had not asked for a publishers' right although, as noted above, the "Reprobel" 
decision affects them too and they have been asking for a clarification of their role in this 
respect. One important element to be considered is that granting a new publishers' right may 
have substantial implications in the area of scientific publishing, both in terms of political 
resistance from the researchers' constituency and of impact on the open access policy/model. 
This is an area that will have to be carefully assessed, taking into account the specificities of 
scientific publishing (researchers are increasingly deciding not to transfer their rights to 
scientific publishers and they may see a new publishers' right as a disincentive for publishers 
to opt for open access).   
What would be the impact of a publishers neighbouring right for other right owners 
(journalists, writers, photographers)? 

3 C-572/13 of 12 November 2015- Hewlett-Packard Belgium vs Reprobel. 
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Our preliminary impression (pending the necessary legal and economic assessments) is that it 
may have an effect on the sharing of the licence fees and of levies (and similar compensation 
mechanisms for exceptions). It will also have an effect (again to be assessed) on those rights 
that currently exist at national level (see above). As for licence fees (and assuming that the 
authors of the underlying works would continue to transfer their rights to the publishers), the 
licence concluded between a publisher and a user will be now for two sets of rights. As a 
result, the licence fee may increase or the sharing of the fee between publishers and authors 
may change. A new neighbouring right may also have as a consequence that levies or 
compensation for other exceptions will have to be shared amongst more rightholders (this 
may, at least in theory, lead to an increase in levies). 
Would the proposal to introduce a publishers' neighbouring right have an impact on the 
hyperlinking discussion? 

A neighbouring right for publishers would not alter the notion of 'communication to the 
public' as defined in the EU acquis and case law. Therefore, introducing a neighbouring right 
for publishers would not impact on the ability of internet users to set or use hyperlinks. A 
neighbouring right would only grant a status to press publishers comparable to the status of 
other right owners, e.g. film or music producers. 
What would be the impact of a neighbouring right for commercial users such as online 
platforms? 

Concerning licence fees, an additional right for press publishers could strengthen their 
bargaining position in negotiations with users. However, this may not substantially change the 
relationships between publishers and distributors in a dominant position, as the latter could 
still insist on low tariffs or licences for free.4 More generally, an own neighbouring right 
could lead to more legal certainty for publishers and thus serve as an incentive for product 
innovation in press publishing. Press publishers point out that they are starting to experiment 
with new business models/modes of distributions (for example social network licences - e.g. 
Facebook Instant Article, apps based services, etc)5 and they consider that a neighbouring 
right would substantially support their transition into the digital environment.  
What are the next steps? 
As indicated above, the impact of a new neighbouring right for publishers would have to be 
thoroughly assessed against the background of different national legal systems and the EU 
acquis. The economic effects, including as regards other stakeholders such as authors, 
platforms and service providers, will also have to be assessed.  
As a first step a public consultation would need to be launched (normal running time is 12 
weeks). The results of the consultation would have to be analysed and fed into a formal 
4 Examples: Google News in Spain and in Germany 
5 Opening Up Instant Articles to all Publishers,17 February 2016 < http://media.fb.com/2016/02/17/opening-up-
instant-articles/> 
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impact assessment. Considerable legal and economic research will need to be undertaken. 
Making sure that we carry out a solid preparatory work would be key notably to avoid the 
initiative being challenged on better regulation grounds (something that is increasingly taken 
into account by stakeholders, Member States and Parliament).  
Adopting a proposal on a neighbouring right for publishers jointly with other proposals 
announced in the December Communication might therefore entail a timing issue which 
would have to be addressed at political level. 
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3. Other relevant background information
A) Press publishers and copyright
Many newspapers publishers have been vocally asking the Commission to propose modifications to 
EU copyright law with the objective to grant publishers new harmonised rights at EU level. Publishers 
are currently not identified as rightholders by EU copyright rules: they licence/enforce rights either on 
the basis of the rights authors (eg. journalists) transfer to them contractually and/or (in some Member 
States) as authors of "collective works". Publishers justify their request with the difficulties they face 
when seeking to monetise online uses of their content, in particular by online platforms (such as news 
aggregators) that link to press articles freely available online and/or use excerpts ("snippets") of 
articles without acquiring licences from the right owners. At the same time, due to the dominant 
positions of these platforms, many publishers depend on the web traffic generated by the platforms.  
Different solutions have been advocated: 
• A mere compensation or remuneration right (the publisher cannot prevent the online use and
only has the right to claim compensation, subject to collective management, the "Spanish"
approach.
• A so-called ancillary right (exclusive economic right only related to online exploitation –
mainly the use of snippets-  with a very short term of protection (possibly one year - the
"German" approach). The request for an ancillary right has often been coupled with the
request to introduce a collective management of this right by publishers' collecting societies.
• A fully-fledged neighbouring right (exclusive economic right related to copyright for all kinds
of uses, offline and online, protected for 50 years after publication). In essence a neighbouring
right would grant press publishers an equal status as the one enjoyed by the other
neighbouring rightholders in the EU copyright acquis, notably films and music producers and
broadcasters.
B) Initiatives in the Member States
Two Member States (Germany and Spain) have adopted laws to address press publishers' concerns. 
Both aim at the same result (i.e. payment to press publishers for the use of their works by news 
aggregators), but follow different approaches: 
• Under the Spanish law, news aggregators do not need an authorisation from the relevant right
holders to make news snippets available to the public. However, the use is subject to the
payment of an equitable compensation to the publishers or authors of the original press
articles. This compensation cannot be waived and is subject to mandatory collective
management. The exception will not be applicable to images or photographs. For the latter, the
exclusive right of the relevant right owners remains.
• Germany has introduced an ancillary right for press publishers, in force since August 2013.
The law grants newspaper publishers an exclusive right to allow or prohibit the making
available of press products or parts of press products online. The making available is lawful
unless carried out by commercial news aggregators such as search engines or social networks.
Authors and journalists have a right to participate in a possible remuneration.
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