Analysis: press publishers in Europe continue to take legal action against digital platforms over copyright and licensing issues
Over the past 15 years, European news publishers have faced a confluence of new and significant challenges. These include the emergence of many new technologies such as AI, a rapid diminution in the printed press and a radical shift to digital.
Part of this digital revolution sees the migration of advertising revenues away from media towards the technology firms that dominate the digital advertising market. Equally concerning from a press publisher's perspective are the activities and business models of news aggregators and media monitoring services who are re-using press publishers’ content often without authorisation.
In 2019, the EU adopted an important law to reform and modernise its copyright laws. Directive 2019/790 on Copyright and Related Rights in the Digital Single Market constitutes yet another important step in the harmonisation of the EU’s copyright laws.
One of the central objectives of this new law is the creation of a better-functioning copyright marketplace in the EU
One of the central objectives of this new law is the creation of a better-functioning copyright marketplace in the EU and this is where Article 15 of the Directive comes in. This highly contested provision provides a new and significant legal right called the press publishers’ right which benefits EU-based press publishers such as newspaper companies, news agencies, magazine publishers and even broadcasters (public service and commercial) who publish content on their websites which qualifies as a press publication. This new legal right allows press publishers to license the online use of their press publications to news aggregators such as Google News or MSN.
Formally, the press publishers’ right is a neighbouring right as it neighbours the copyright held by individual journalists who, as employees or freelancers, contribute press material to the newspaper companies. This new legal right can be seen as a fundamental step towards creating a fairer digital ecosystem for press publishers, individual journalists and society generally.
The press publishers’ right encompasses two important economic rights from the copyright 'family’, namely, the preeminent reproduction right and the making available to the public right and is designed to protect the press publishers’ interests (both economic and creative) in the specific context of unauthorised re-use of its online content by news aggregators.
The verbatim transposition of Article 15 into Irish law might be uninspiring, but it is politically expedient.
Article 15 also constitutes the EU legislature’s attempt to throw a much-needed lifeline to Europe’s publishing industry. The Directive specifically refers to how a free and pluralist press feeds into quality journalism, which, in turn, contributes to both public debate and the proper functioning of a democratic society. Naturally, for all this to happen, the EU’s press industry needs to be adequately financed and the Directive acknowledges the need for press publishers to ‘recoup their investments’ from third-party users of their press content.
While the Directive mandates a licensing system between press publishers and news aggregators, the actual results have not always lived up to legislators’ expectations. Frequently, digital platforms have shied away from discussing licensing agreements with press publishers. This has just led to frustration on the part of the press publishers.
However, in recent times, we have seen press publishers and their collective management organisations take legal action against digital platforms. In June 2023, the Danish Press Publications' Collective Management Organisation (DPCMO) requested the Danish Minister of Culture to appoint a mediator between it and Meta in relation to the direct and indirect unauthorised use of media and data content by the social media company. This request, made under the Danish Copyright Act, grew out of unsuccessful attempts by the DPCMO over a two-year period to bring Meta to the negotiation table to discuss a licensing agreement.
While the Directive mandates a licensing system between press publishers and news aggregators, the actual results have not always lived up to legislators' expectations
In August 2023, Agence-France Press, France's international news agency, applied for an injunction from a Paris court in August against X (formerly Twitter). This was to compel them to provide all necessary elements required for assessing the remuneration owed to it under the press publishers’ right as transposed into French domestic law. Staying in France, Google concluded an unprecedented agreement in October 2023 with Société des Droits Voisins de la Presse covering approximately 350 press publisher websites.
While it appears that a small number of licence agreements have been entered into by one of the large digital platforms and Irish press publishers, the situation is covered by a comprehensive non-disclosure agreement. Given the Irish Government’s strong reliance on the digital platforms’ corporate taxes and their well-paid jobs, it is perhaps unsurprising that our government opted for an uncontroversial and unnuanced transposition of Article 15 into local law. The verbatim transposition of Article 15 into Irish law might be uninspiring, but it is politically expedient.
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The views expressed here are those of the author and do not represent or reflect the views of RTÉ
