The European commission published its last draft directive on the modernizing of the European copyright law (COM(2016) 593 final) on 14 September 2016. The draft was part of a larger strategy to bring about a single digital market within the European Union. Back then, the legislative proposal triggered quite some discussion given that its provisions touched upon more than one sensitive topic including text and data mining, a neighbouring right for publishers and new obligations for Internet providers. Most recently, the first statements from the European Parliament were leaked. Specifically, the Committee on Legal Affairs’ report became public as drafted by MEP Therese Comodini Cachia. The report puts forward an impressive total of 73 proposals for change. Considering that the draft directive has only 24 articles in total, this is quite a statement.
The leaked report suggests that the controversial neighbouring right for press publishers will be dropped and replaced with a new Article 11(1), a presumption of representation of authors of literary works contained in press publications. This would give press publishers the legal capacity to sue in their own name when defending the rights of authors in relation to the digital use of articles published in the press. In essence, the press publisher shall not be entitled to any intellectual property rights in those articles but shall have the right to sue infringers on behalf of the author.
The Parliament’s position differs substantially from the Commission’s intentions. Whilst the latter aims for a new right, the former wishes to take action at enforcement level only. The Parliament’s approach is not entirely new and there is sense to it given that the press publishers’ position is generally strengthened without the complexity of actually defining what the publisher’s right is next to author’s original copyright. This definition has turned out to be quite a challenge in the past. However, the suggested amendment is completely silent on the relationship between publisher and author regarding the statutory presumption of representation. This can be a problem as the publisher’s and the author’s interests may not always be the same or even overlap.
Arguably, the Commission’s outspoken political goal of providing press publishers with greater bargaining power may not be achieved by furnishing them with a statutory presumption of representation rather than a neighbouring right. A right to sue which is based on the author’s copyright is after all only a “derived” legal position. Nevertheless, the risk for any infringer to be taken to court would certainly increase if the Parliament’s approach became law and a publisher is a much more heavy-weight opponent in a lawsuit then the ordinary author can ever be.
In the wider context, this leaked report acknowledges that press publishers encounter difficulties in claiming their legal position in today’s digital world when it comes to the online exploitation of their publications. However, it also emphasizes that one has to differentiate between two scenarios: (1) users copying and making their own news and press content with material that was created by others; and (2) users merely facilitating the finding of news and press content published in third-party press publications via link lists and searches. Parliament considers that whereas the first is disproportionately harmful to the financial interests of the press publishers, the latter may even benefit the press publishers because their publications are easier to find on the Internet. Accordingly, a balanced and distinguishing approach is required.
The Committee on Legal Affairs will debate the leaked report on 22 and 23 March 2017. It may be assumed that the committee will publish a final version by the end of July 2017. The Commission, the Parliament and the Council will now continue their trilogue, battling for the final wording of Article 11 of the new Copyright Directive. Whether the provision will eventually provide for a neighbouring right is yet to be seen. However, it will not be the only controversy we will experience in the further course of this legislative process.