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Press publishers’right: expanding copyright on news and information on the internet


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Presentation by Ula Furgal at the 2019 CMPF Summer School for Journalists and Media Practitioners - Covering Political Campaigns in the Age of Data, Algorithms & Artificial Intelligence

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Press publishers’right: expanding copyright on news and information on the internet

  1. 1. PRESS PUBLISHERS’ RIGHT: EXPANDING COPYRIGHT ON NEWS ON THE INTERNET Ula Furgał PhD Candidate, European University Institute
  2. 2. The problem The discussion Role of journalists The solution: press publishers’ right Press publication: a subject-matter Exclusive rights Right holder Right of making available Snippets and reproduction Safeguards for journalists Copyright exceptions
  4. 4. News aggregators
  5. 5. Copyright infringement? Link: communication to the public Snippet: reproduction of a work in part
  6. 6. Links & communication to the public Art. 3(1) InfoSoc Directive […] the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. a response to development of modern technologies generally-formulated to cover all modes of communication of work to a public which is not present at a place where transmission originated
  7. 7. Links & communication to the public Svensson C-466/12 Two criteria: a) Act of communication links provide direct access to works potential access is sufficient: it is for users to decide if they click through b) Communication to the public indeterminate, a fairly large, number of recipients all potential users of a website
  8. 8. Links & communication to the public New public public that was not originally taken into account by the copyright holders when they authorised the first communication to the public no restrictive measures = all internet users create public restricitve measures in the online news environment?
  9. 9. Hyperlinking and new public flowchart João Pedro Quintais Untangling the hyperlinking web: In search of the online right of communication to the public J World Intellect Prop. 2018;21:385–420
  10. 10. Snippets and reproduction Art. 2 InfoSoc Directive […] the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part […] for authors, of their works […] work: original expression, author’s own intellectual creation parts of work: enjoy protection […] provided that they contain elements which are the expression of the intellectual creation of the author of the work Infopaq C-5/08
  11. 11. Snippets and reproduction Protection of news and press? Art. 2(8) Berne Convention The protection […] shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. Infopaq C-5/08 newspaper articles are literary works form, manner in which the subject is presented, linguistic expression choice, sequence and combination of words, used to express certain fact
  12. 12. Snippets and reproduction Length? certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for conveying to the reader the originality of a publication such as a newspaper article InfopaqC-5/08 Restrictions to creativity?
  13. 13. The problem later on… licensing & remuneration enforcement threat to free & pluralistic press
  15. 15. Who? News organisations Authors Digital Intermediaries Collective management organisations (CMOs) NGOs and public policy advocates Research and academic institutions Content producers from other sectors Users
  16. 16. How? Open letters Position papers Statements Press releases Reports Emails Public campaigns EC Public Consultation on the role of publishers in copyright value chain o-poparcie-dyrektywy-o-prawie-autorskim/0zme72g
  17. 17. When?
  18. 18. 2014 2015 2016 2017 2018
  19. 19. What arguments were used?
  20. 20. 1) Better off 2) Legal certainty 3) Negotiation position 4) Equality 5) Innovation 6) Value of the press 7) Internet freedom 8) Right to information
  21. 21. Better off New revenues Extended effects Dependency & transfer of revenue Pie theory Data?
  22. 22. Equality Following other content producers Fix of historical mistake & recognition of tech development Following a bad example Against tech development
  23. 23. Negotiation position Publishers vs platforms Counter-balancing market power One-stop shop Authors vs publishers Autonomy from authors Hegemony on the web
  24. 24. Value of press “Empower Democracy” #savethepress Fight fake news Copyright is “blind”
  25. 25. Journalists?
  26. 26. The Guardian la Repubblica DerTagesspiegel AFP
  27. 27. Journalists in the discussion No one, universally-shared position No information, no initiatives No consistency over time Detached from the online news environment
  28. 28. investment quality content double-layering rights clearance technological development independence innovation link pluralism
  29. 29. THE SOLUTION
  31. 31. CDSM Directive: art. 15 (ex 11) Member States shall provide publishers of press publications established in a Member State with the right of reproduction and the right of making available for the online use of their press publications by information society service providers The rights shall not apply to private or non-commercial uses of press publications by individual users The rights shall not apply to acts of hyperlinking The rights shall not apply in respect of the use of individual words or very short extracts of a press publication
  33. 33. Press publication Collection composed mainly of literary works of a journalistic nature individual item within a periodical or regularly updated publication under a single title has a purpose of providing the general public with information related to news or other topics is published in any media is published under the initiative, control and editorial responsibility of a service provider art. 2(4) CDSM Directive
  34. 34. Work of a journalistic nature Works created by professional journalist originating with press (publisher) produced pursuant to journalistic standards Data Protection Directive: exception for processing data for journalistic purposes  No clear, easily applicable criterion Categories of works Open catalogue Directives concerning particular categories of works Painer C-145/10 All works, regardless of a category, are protected equally
  35. 35. Quality journalism CDSM Directive Contributing to public debate and proper functioning of democratic societies Provides public with reliable information CoE Committee of Experts on Quality Journalism List of prerequisites concerning the methods and processes of reporting, as well as principles, values and purposes involved in the news production Opposite of mis/disinformation Journalistic studies theories  Copyright egalitarianism
  36. 36. Editorial initiative, control and responsibility CoE Recommendation on new notion of media Editorial control an indispensable requirement for online service or activity to be considered as media Elements of editorial control: editorial policy, editorial process, moderation and editorial staff AVMS Directive Editorial responsibility as an exercise of effective control over the selection and organisation of the program Inapplicable to online versions of newspapers Editorial initiative
  37. 37. Press publication  A number of undefined, foreign to copyright, terms inviting subjective judgements
  38. 38. Related rights: subject matter Rights neighbouring to copyright Right holders: performers, phonogram producers, broadcasting organisations and film producers Justification: creativity in the performance organisational and financial effort Subject matter: no common definition no originality requirement
  39. 39. Related rights: phonogram Life#/media/File:Imagine_Dragons_- _I_Bet_My_Life.png Bet-My-Life-Imagine-Dragons-Stave-Preview- 1.html https://tabs.ultimate-
  40. 40. Related right: press publication Koalicji-do-sukcesu-wiedzie-przez-100-mld- zl.html
  41. 41. Term of protection 2 years after publication of press publication When does the publication of a press publication as „individual item” take place?
  43. 43. Right holder Publisher of a press publication service providers, such as news publishers or news agencies, when they publish press publications established in the EU Member State Not effective erga omnes Effective towards information society service providers any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services
  44. 44. Right of making available  Does not apply to acts of hyperlinking But: double-layering of the rights application of right depends on the right holder
  45. 45. Reproduction and snippets  Does not apply to individual words or very short extracts of a press publication But: no originality requirement no explicit limit of words
  46. 46. Reproduction and snippets Role of snippets: • context • relevance • efficiency  Can link play its function without a preview?
  47. 47. biden-warren-sanders Feedly
  48. 48. Google News Google Search Ecosia WhatsApp
  49. 49. Safeguards? 1) the right shall leave intact and shall in no way affect any rights provided for authors in respect of the work incorporated in a press publication 2) authors shall receive an appropriate share of the revenues received by press publishers Contractual relationship? Journalistic freedom?
  50. 50. Copyright exceptions Right does not apply to private or non-commercial uses of press publications by individual users  private use exception made mandatory? Copyright exceptions of the InfoSoc Directive, Orphan Works Directive, and Marrakesh Treaty Implementation Directive apply mutatis mutandis (with necessary alterations)  open catalogue of exceptions in InfoSoc Directive  potential difference between exceptions applicable to copyright and press publishers’ right
  51. 51. Illustrations 6-9, 44ViktorVorobyev (link) 10, 11, 45, 46 Becris (snippet) 13 Lastspark (news and megaphone) 21 Lastpart (pie) 22 Mulham (equality) 23 Artdabana@Design (scale) 24 Luis Prado (fake news) 25, 27, 49 Aldric Rodriguez (journalist) 33-38, 41 Creative Stall (newspaper) 43 Icon54 (right holder) 50 Jaohuarye (open lock)
  52. 52. THANKYOU! Comments or questions? Get in touch! Ula Furgał