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Centre for Intellectual Property and Information Law

Wednesday, 25 October 2017

In June, the Legal Affairs Committee of the European Parliament (JURI) commissioned a Study on two of the proposed topics in the Commission’s proposal for a directive on Copyright in the Digital Single Market. CIPIL, which is a partner with Technopolis, an Austrian think-tank, won the tender. Over the summer, Lionel Bently and Martin Kretschmer (CREATe, University of Glasgow) worked with Technopolis on the study, which was published on the JURI website in October.

The study deals with two topics.

Article 11 of the Proposed Directive proposes a new “ancillary right” for press publishers (an idea which is already being trialled in Germany and Spain). The Study explains the background to the proposal (in particular declines in print newspaper revenues), considers to what extent the proposed right will assist the sustainability of news publishing. Through interviews with digital journalists in Spain and Germany, the Study seeks evidence on the operation of the national experiments with equivalent rights, concluding that there is little evidence that they are effective and some evidence of negative effects on innovation. In the light of this evidence, and the critiques of academics, the Study supports the draft JURI report in rejecting the proposed right and instead replacing it with a presumption of ownership that will make easier the enforcement of copyright in articles and photographs included in news media.

Articles 14-16 of the Proposed Directive seek to strengthen the position of authors by introducing (i) a right to information with respect to the revenues generated through exploitation of works; (ii) a right to reform contracts where the author’s remuneration is disproportionately low; and (iii) ready access to alternative dispute resolution in relation to disputes over the two matters. The Study reviews the cultural economics literature, noting that measures that facilitate contractual reform have been shown to do little to improve the position of most authors. Nevertheless, looking at the rules operating in six Member States (Denmark, France, Germany, the Netherlands, Spain and the UK), the Study suggests that the harmonization of these provisions will ‘add some value’ at a European level. While sympathetic to various proposed amendments to confer and authors an unwaivable right to equitable remuneration, the Study notes that where such provisions already exist in national law, they are subject to particular processes, conditions and qualifications. The Study suggests that the Parliament direct the Commission to consult on such a proposal, rather than adopt such an amendment at this stage.