Article 15: The protection of press publications in case of online use

Article 15 of the DSM Copyright Directive introduces a related right—ancillary to copyright—in favor of press publishers. This applies in specific instances, when certain subjects (online services) carry out certain acts (reproduction and making available) with respect to certain types of content (press publications). In short, the right is triggered when press publications are used by Internet platforms in the digital environment. In Italy, the provision was transposed by introducing Article 43-bis in the Copyright Law at the end of the Section devoted to “Collective works, magazines and newspapers”. In fact, in the Italian legal system already included a set of provisions governing the rights of publishers and authors on this type of works, to which the new, specific related right should add – as suggested by its positioning.

The rationale: Remunerating press publishers and ensuring a free and plural information

Article 15 aims to protect press publishers when their content is (re)used online. The provision seeks to introduce a minimum, harmonized protection in case of dissemination of press publications by online platforms, such as news aggregators or media monitoring services – an increasingly common practice, by which publications are becoming widely available on the Internet. In this context, press publishers often encounter difficulties in negotiating licenses for the online use of their content by service providers, making it harder to recoup the investments made to produce such content.

Acknowledging the emergence of such new services, the EU legislator – and thereby the Italian one – tried to strike a balance between ensuring the sustainability of the publishing industry and fostering the availability of reliable information. The result was the inclusion of new “rights in publications” amongst the “measures to achieve a well-functioning marketplace for copyright” introduced by the DSM Copyright Directive. This way, press publications shall enjoy “protection concerning online uses”, as the heading of Article 15 suggests.

The scope of application: Who, what, when

First, Article 2 of the DSM Copyright Directive defines a “press publication” as a collection composed mainly of literary works of a journalistic nature (that can also include other works, such as photographs, or videos), which:

• constitutes an individual item within a daily newspaper or a periodical magazine;
• provides the general public with information related to news or other topics;
• is published in any media under the initiative, editorial responsibility and control of a service provider.

It follows that the new right should cover newspapers and periodicals irrespective of whether they are originally published on printed, digital, or online media. Periodicals that are published for scientific or academic purposes are, however, expressly excluded, and so are blogs.

This definition has been subject to some criticism, based on the argument that the term “press publication” was referred to the collection of articles as a whole, and to the single articles incorporated within it. This ambiguity remains in Article 43-bis setting out a similar definition. Here, the term “[press] article” is used next to “press publication”, reminiscent of the wording of preexisting provisions, which referred to “articles” as the individual works within the collective works that are “magazines and newspapers”.

Some commentators also argued that the condition mentioned in let. (c) above (by virtue of which informative purposes are to be considered relevant, for the purposes of the new provision, whether they refer to news or “other topics”) opens the way to a broad definition of journalistic publications. This could be construed as meaning that an article can be the subject of the new related right whether it reports on news, but also on “other topics” such as weather, or recipes. Critics reasoned that an originality requirement should have been imposed to access protection. These remarks, however, appear less relevant when looking at the national implementing provision, which specifically covers “publications” as “consisting primarily of literary works of a journalistic nature, which may include other works and protected materials” – as opposed to the “other works or other subject matter” mentioned in Article 2 of the DSM Copyright Directive – hinting at the fact that conditions for protection – at least to some degree – should indeed be met.

As to the subjective application scope, Article 43-bis adds on to Articles 2 and 15, setting out a definition of “publishers” as those who, individually or in association, issue “press publications”, even if they are established in another Member State. On the receiving end of the provision lay the so-called “information society service providers” (ISSPs), which in the Italian transposition include media monitoring companies and press reviews. The Italian choice to broaden the category may be grounded in the reference to “media monitoring services”, which in Recital 54 of the DSM Copyright Directive are assimilated to “news aggregators” as examples of the “new online services” in respect of which Article 15 has been designed.

Exceptions

There are, however, a few exceptions to the rule: Article 15 sets out that the rights now conferred to publishers shall not apply to private or non-commercial uses of press publications by individual users, nor to acts of hyperlinking or the use of individual words. While these did not require further specification and have been implemented essentially verbatim, there is another, more nuanced exception in Article 43-bis concerning the use of “very short extracts” of press publications, resulting from the transposition of the (much less objective) provision of the DSM Copyright Directive exempting the use of what have become known as “snippets”. Like in other Member States, in the implementation the Italian legislator deemed it necessary to define the notion of “very brief extracts”. The choice has landed on a so-called “qualitative definition”, pursuant to which such is any portion of a publication that does not exempt the reader from the need to consult that publication in full. In essence, a “snippet” must not be fungible in providing the information in question, which should only be accessible through the publication from which it is extracted. The Italian definition is quite similar to the one already adopted in France, and was well received by Italian publishers, led by their trade association (Italian Federation of Newspaper Publishers, FIEG), on accounts of its flexible nature, encouraging a case-by-case evaluation and as broad an application as possible. On the other hand, online platforms – like Google – voiced their concerns over parliamentary hearings held in the course of the transposition process, arguing that a quantitative definition would have been more objective and therefore preferable. According to several critics, the lawmaker should have indicated a clearer threshold, like a maximum number of characters that an excerpt can contain to qualify as a “snippet”, thereby avoiding disputes over which excerpts exempt from the need of consultation of the original article and which not.

The content of the right

Consistently with Article 15, the exclusive rights granted to publishers for the online use of their press publications by ISSPs are those set out in Article 13 and 16 Copyright Law, meaning publishers shall be the only subjects entitled to authorize the reproduction and communication to the public of their publications.

So, as with fixation for phonogram producers or transmission for broadcasters, the mere act of publishing a “press publication” determines the onset of exclusive rights for publishers, albeit limited in time – two years from the date of publication – and in type (covering only the online use by ISSPs), regardless of the protectability of the press publication pursuant to other provisions (like copyright).

Fair compensation

Against this backdrop, the most innovative element of Article 43-bis is that press publishers must receive a “fair compensation” for the online use of their content by ISSPs. The negotiation and determination of the amount due in that capacity have been subjected to several procedural constraints and are expected to be further detailed by the Italian Authority for Communications Guarantees (AGCOM), which was granted regulatory, supervisory, and sanctioning powers.

AGCOM shall adopt a regulation setting out the criteria for the determination of the fair compensation due to publishers for the use of their press publications online. In the context of such regulatory action, AGCOM shall take into account (i) the number of online consultations of the newspaper article; (ii) the years of activity and market relevance of the publisher, as well as the number of journalists employed; (iii) technology and infrastructure investment costs on both parties; (iv) economic benefits for both parties in terms of visibility and advertising revenues, by virtue of the economic use of the publication. The criteria so identified by law are non-exhaustive and meant as guidance for AGCOM in its activity.

The regulation will act as a beacon for publishers and ISSPs (online platforms and media monitoring companies), as they shall consider the criteria established therein for the purpose of entering rights acquisition agreements for the use of press publications online. ISSPs are expressly faced with good faith and fairness obligations, and the Italian transposition goes as far as to establishing that – pending negotiation – they shall not unjustifiably restrict the visibility of publishers’ content in search results, under penalty of incurring in pre-contractual liability.

A form of (optional) assisted negotiation has also been put in place. If after 30 days from the start of negotiations they have not reached an agreement, each of the parties may turn to AGCOM and institute proceedings leading to the determination of the “fair compensation” by the Authority. If, despite that, the parties do not conclude an agreement, they can file a legal action before the Specialized division of the competent Court, also to put forward a claim of abuse of economic dependence. Besides, it is clarified that such legal action can be taken as early as from the failure of the private negotiations between the parties, as an alternative to the assisted negotiation before AGCOM.

To support these negotiation mechanisms, a transparency requirement has been placed on ISSPs, including media monitoring agencies, by which they are obliged to make available the data necessary to determine the measure of the fair compensation upon request of the interested party (even through collective management organizations or independent management entities), or of AGCOM. In case of non-disclosure within 30 days of the request, AGCOM is empowered to issue a pecuniary fine against the non-complying ISSP of up to 1% of the turnover achieved in the last financial year closed prior to the notification of the claim.

The sanction regime—absent in the DSM Copyright Directive—is perhaps the most striking addition of the Italian transposition, and one of the elements that have attracted the most criticism, some even arguing that it is unlawful and threatening to challenge it. On the other hand, it is not the only part of the provision that has been debated: some commentators  have construed the mechanism for the determination of the “fair remuneration” as a de facto compulsory licensing system due to the series of remedies for negotiation (up to and including judicial action), while others have focused on the elements of the provision that expressly refer to the new related right as an exclusive right of publishers to authorize (or not) the use of their publications online. In this latter instance, the “fair compensation” would be the amount to paid in consideration of the granting of such authorization, essentially a license fee for the right to use press publications online.

Lastly, consistently with the DSM Copyright Directive the remuneration of publishers should ultimately benefit the authors of journalistic works too, and not prejudice them—as they keep owning their rights (if any), including the right to exploit their articles. In addition, authors must receive an appropriate share of the revenues that publishers earn from ISSPs. The transposition specifies that this share must be 2-5% and is to be quantified by contract with self-employed journalists while for employees it could be quantified in collective agreements. As FIEG pointed out, journalists’ employment contracts already foresee that publishers acquire the copyright off them on their works, and are authorized to publish the works on their platforms. Therefore, the introduction of a new fee for employed journalists would open a gap in labor relations. No problem would arise, instead, with self-employed journalists.

Article 16 gives Member States the possibility to provide that, if an author has transferred or granted a right by means of a license to a publisher, the latter will be entitled to a share of the remuneration that the author receives for the uses of the work by virtue of any exception or limitation to the right transferred or granted by means of the license. However, as Article 70-quinquies specifies, this share may not exceed 50%.