On April 17, 2019, the Directive (EU) 2019/790 on copyright and related rights in the digital single market (the "New Copyright Directive") was finally adopted after long negotiations. The New Copyright Directive introduces a new right for press publishers with regard to the online use of their publications, pursuant to Article 15 of the Directive.
The reasons behind the introduction of the new right for press publishers
Certain information society providers such as media monitoring services and online news aggregators make their core business the reuse of press publications1. Press publishers face numerous difficulties in controlling such reuse of their contents by these online providers through dedicated licenses; in short, press publishers cannot adequately protect their contents from unauthorized online use. Recital 54 of the New Copyright Directive explains such difficulties as one of the grounds that justifies the introduction of a new right for press publishers, which has been introduced in order to relieve the distress of the press sector.
Different profiles related to the new right for press publishers
Article 15 New Copyright Directive provides press publishers established in the EU with the right to claim revenues from online uses of their publications by information society service providers2. In addition, authors of press publications shall receive an appropriate share of the revenues realized through the licensing of online uses of their publications. It shall be noted that the right in question lasts two years from the publication of the content.
Moreover, linked to the right established by Article 15, Article 16 of the New Copyright Directive introduces the right for publishers to receive fair compensation and such a right applies to publishers in general, not just of press publications, but also with regard, by way of example, to books, music or scientific publications.
The new right for press publishers is subject to certain exceptions: in particular, pursuant to Recitals 57 and 58 and Article 15(1) of the New Copyright Directive, such a right cannot be enforced with regard to the following cases:
- non-commercial or private use of press publications by individuals;
- in case of use of “individual words or very short extracts” of a press publication;
- use of quotations for purposes such as criticism or review.
The scope of the new right for press publishers and the concept of “making available to the public”
Pursuant to Recital 57 and Article 15(1) of the New Copyright Directive, the new rights granted to the publishers of press publications should have the same scope as the rights of act of reproduction and making available to the public3 provided in Copyright Directive 2001/29/EC, insofar as online uses by information society service providers are concerned.
It is clear that the scope extends to any commercial use of press online – whether 'public' or 'private' – even where the provision of contents to the public is formally performed on an individual basis, as, for example, through login credentials or through the use of other technical means that limit the access to a certain work to a specific user.
Such a conclusion can be reached a contrario from the provision set out in Article 15(1). This provision in fact excludes the rights granted to press publishers in relation ‘to private or non-commercial uses of press publications by individual users’, with the result that any commercial exploitation – even if 'private' – falls within the scope of the rights granted to press publishers.
Furthermore, it should be noted that also the online use of protected works apparently used 'for purposes of news reporting' set forth by Article 5(3)(c) Copyright Directive 2001/29/EC (applied mutatis mutandis in Article 15(1) New Copyright Directive) should be strictly evaluated, in connection with the notion of ‘making available to the public’.
As noted by the Court of Justice EU in case no. C-117/15 (Reha Training) the term 'public' must be understood as an indeterminate number of potential recipients, to be assessed in relation to the number of people that, simultaneously or in succession, can access the same protected work. To fall within the notion of ‘making available to the public', a 'work' must be transmitted to a 'new public', meaning to a public that had not been taken into consideration by the rightsholders of works protected by copyright when such rightsholders have authorized the communication of their works to a certain public.
To this extent, as remarked by the EU Court of Justice in case no. C-263/18 (Tom Kabinet), the act of making protected work available by downloading it, for permanent use4, falls within the notion of ‘making available to the public’, since “members of the public may access them from a place and at a time individually chosen by them”, within the meaning of Article 3(1) of Directive 2001/295. Consequently, the permanent downloaded work, even if apparently aimed to be used for 'private' purposes or for the purposes of reporting news, falls within the notion of making available to the public of a protected work by copyright, and therefore is not authorized, as also stated according to the New Copyright Directive.
Such an interpretation is significant and should allow press publishers to enforce their rights with regard to the works protected by copyright also towards entities (such as entities carrying out the activities of a press review) that until now have used their contents on the alleged basis of an individual communication rendered online for reporting purposes.
The introduction of the new right for press publishers is certainly very relevant in order to help relieve press publishers from the crisis of the past few years. The New Copyright Directive must be implemented by Member States by June 2021 and in Italy we expect in the next few weeks the approval of the decree of implementation. In this regard, it will definitely be interesting to see how different Member States will implement the Directive in question.
- The notion of press publication comprises not just literary works, but also pictures and videos. More specifically, Article 2(4) New Copyright Directive specifies that “‘press publication’ means a collection composed mainly of literary works of a journalistic nature, but which can also include other works or other subject matter, and which: (a) constitutes an individual item within a periodical or regularly updated publication under a single title, such as a newspaper or a general or special interest magazine; (b) has the purpose of providing the general public with information related to news or other topics; and (c) is published in any media under the initiative, editorial responsibility and control of a service provider”.
- Providers of “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services” (Article 1, paragraph 1, letter b) of Directive (EU) no. 2015/1535, as referred to by Article 2(5) New Copyright Directive).
- It is worth noting that, Article 15(1), in compliance with Recital 57, should be extended also to the making available to the public mentioned in Article 3(1) of Copyright Directive 2001/29 , as part of the authors’ exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means. This point is quite relevant since Article 3(1) of Copyright Directive 2001/29 concerns the making available to the public of the works (referred to Article 2(a), including the press publications), while Article 3(2) of the same Directive regards the making available to the public of other subject matters (referred to Article 2(b)(c)(d)(e) with no connection with the press publications).
- There is no technical feature on that club’s platform ensuring that (i) only one copy of a work may be downloaded in the period during which the user of a work actually has access to the work; and (ii) after that period has expired, the downloaded copy can no longer be used by that user.
- See footnote 3.