In 2019, the EU legislature introduced an EU-wide related right (Article 15 of the DSM Directive, on which see Katposts here) for EU-based press publishers in relation to online uses of their press publications by information society service providers, including news aggregation services, social media, and search engines.
According to the US Copyright Office, for the United States the answer is NO.
[A]ncillary copyright protections have not been shown to be necessary in light of publishers' existing rights, and would likely be ineffective so long as publishers depend on news aggregators for discoverability. Moreover, to the extent that any ancillary copyright protections would lack traditional copyright limitations and exceptions [this is not the case of the EU press publishers’ right, which has both limitations in scope and remains subjected to inter alia the application of all available exceptions under Article 5 of the InfoSoc Directive], they would raise significant policy and Constitutional concerns.
The Office found that under US law press publishers generally own a copyright in the compilation of materials that they publish already, as well as in individual articles and often photographs too, through the work-made-for-hire doctrine.
All this said, the Copyright Office did acknowledge that the press sector and journalists are facing challenges that are worthy of congressional attention, including through antitrust intervention. In this regard, the Office highlighted how the copyright protection already available to press publishers may be considered ineffective because “[p]ublishers may have difficulty requiring news aggregators to pay to use news content due to disparities in bargaining power.” But this, noted the Office, is not a copyright-specific challenge.
As readers who have followed the developments leading up to the adoption of Article 15 of the DSM Directive will recall, the considerations undertaken by the US Copyright Office echo very similar points made in Europe.
That the press sector is facing a very significant crisis is a fact.
Albeit that declining revenues in the press publishing sector are not a new phenomenon (in some countries the decline began with the advent of television in the 1950s), they have become particularly problematic since the early 2000s, with some indicating the internet and news aggregation services as primarily responsible for that. If you wish to get an idea of the numbers, see here for telling data relating to the Italian press sector.
Possible solutions to tackle these problems were discussed in a number of EU Member States prior to the adoption of the DSM Directive. Initiatives encompassed both the conclusion of agreements between news aggregators and local press publishers (e.g., in Belgium, France, Italy) and the adoption of legislative initiatives in relation to news content (Germany, Spain). In 2013, Germany introduced a related right over press publications, while in 2014 Spain adopted a mandatory fair compensation requirement for press publishers as part of its reform of the quotation exception. Neither initiative proved successful.
Indeed, the Impact Assessment accompanying the Commission’s proposal for a DSM Directive referred specifically to the German and Spanish experiences, and acknowledged that these had been “ineffective”. It linked such ineffectiveness to “the lack of scale of national solutions” This, in turn, served to justify legislative intervention on an EU-wide scale.
So, where are we now in Europe 1+ year after the expiry of the deadline for the national transpositions of the DSM Directive?
First of all, not all EU Member States have yet completed the transposition of the DSM Directive into their own laws. For those that have, insofar as the press publishers’ right is concerned, there seems to be the potential of greater effectiveness of the related right in favour of press publishers than national solutions alone. That seems however to be so not because of this new right but because of the use of competition law tools and a greater willingness of national competition authorities to use them.
France was indeed the first EU Member State to transpose, as early as 2019, Article 15 into national law, with no language addressing the possibility of a waiver of the right (this was the main, though not only, reason why the pre-DSM Directive German right failed). Initially, Google announced that, similarly to what it had done in Germany a few years prior, it would not seek licences from French press publishers to use their content. Unlike what had happened in Germany, however, the French Competition Authority decided to open an investigation and subsequently ordered Google, as an interim measure, to negotiate in good faith with press publishers. In 2021, the same authority issued a fine against Google for failure to comply with the interim measure issued the previous year. A few weeks ago, as also reported by Politico, the Authority accepted legally binding commitments from Google to negotiate licences and disclose information that would serve to determine whether the proposed amounts could be regarded as being fair.
Insofar as Germany is concerned, also there the Federal Competition Authority appears keener to look into these issues now (under the old right, the Authority ruled out that Google's refusal to negotiate licences would amount to an abuse of dominance). In early 2022, it announced that it would be holding consultations with Google over competition-related concerns facing the latter’s News Showcase service. While the contracts relating to such a service are unrelated to the negotiations regarding licences under the German related right adopted to transpose Article 15 of the DSM Directive, that Authority noted that a close monitoring of said negotiations would be also undertaken.
In conclusion, whether copyright was the right lens through which the press sector's issues could be addressed is not just an academic issue. In this sense, the answer that the US Copyright Office has provided to the question whether the US should imitate Europe does not appear too surprising either.
[Originally published on The IPKat on 4 July 2022]