Author: Press Officer

 4^th IMRO/Law Society Annual Copyright Lecture

3^rd May, 2023

The new press publishers’ right and the creation of a well-functioning marketplace for copyright in the EU

By: Dr. Mark Hyland

IMRO Adjunct Professor of Intellectual Property Law at the Law Society, and Lecturer, Faculty of Business, Technological University Dublin

This academic paper treats selected aspects of the above theme and does not intend to be all-encompassing. This year’s theme creates a nice continuum with last year’s theme as both Article 15 and Article 17 of the Copyright Directive are contained in Title IV of the Copyright Directive concerning measures to achieve a well-functioning marketplace for copyright. In addition, both provisions are relevant to the relationship between rightholders and Big Tech and both provisions also attempt to address the important matter of the value gap.[1]

The 2019 Copyright Directive

Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market was adopted in April 2019. The directive further harmonises EU Copyright Law taking into account, in particular, digital and cross-border uses of protected content. Besides helping to modernise EU copyright rules, the Directive also attempts to create a better functioning copyright marketplace in the EU27. In terms of creating a more efficient copyright marketplace, Article 15 of the Directive is important. Article 15 creates a new neighbouring right[2] for EU press publishers in relation to online use (re-use) of their press publications by Information Society Service Providers (ISSPs)such as news aggregators.[3]

The background to Article 15

Over the last 15 years or so, the news ecosystem has changed significantly. Distribution of news has moved from paper format to digital platforms. Readers increasingly consume news online and expect access to content on a multitude of platforms 24/7.

The growing trend of digitisation has led to a proliferation in the availability of news sources. It has also had an undeniable impact on the shape of the media landscape. This is all happening against the backdrop of a complex, dynamic and symbiotic relationship between the press and the digital platforms. Digitisation has restructured the linear model of news production and distribution, challenging not only traditional business models, but also legacy media’s control over information communication channels.[4] It is clear that the legacy media is no longer the sole source of information. Increasingly, individuals are getting their news through digital intermediaries such as news aggregators, search engines, social media and messaging apps.

Somewhat ironically, the digital platforms are offering publishers the opportunity to reach new audiences by including press content on their services. The digital platforms differ in terms of the amount of content provided but it is usually a preview accompanied by a link to the full news item. Complete news items are not common but some platforms did, in the past, offer an opportunity to directly publish on their services using dedicated formats.[5]

Admittedly, this type of distributed discovery of news content exposes readers to a wider array of news sources but it is likely to disrupt the direct relationship that news organisations have with their audiences. And, as noted in the UK’s Cairncross Review, it runs counter to the legacy news organisation’s practice of content bundling,[6] offering users a single bundle of diverse content and promoting a disaggregated news experience.

The print circulation of newsbrands is in a steady decline. News publishers print revenues are decreasing inexorably while their digital revenues continue to climb but, tellingly, quite often the rising digital revenues fail to offset falling print revenues. The chill winds affecting print media is captured well in Laura Slattery’s recent article in the Irish Times (27^th February, 2023) titled “Irish Independent publisher Mediahuis ‘anticipates even more radical digital shift’ “.[7]

In her piece, Slattery paints a fairly bleak picture of the Irish newspaper sector. Her article refers to such things as the ‘inflation-struck news business’, ‘the structural decline in print’, and the ‘historically high cost of printing paper’. Perhaps most compelling of all are the quotes from Mediahuis’ group chief executive, Gert Ysebaert, who speaks of the media world ‘transforming at an unprecedented speed, driven by technological innovations such as artificial intelligence as well as changing consumer behaviour’. Mr Ysebaert sums up the challenging situation well when he states ‘All this means, more than ever, that we need to anticipate an even more radical digital shift’.

The Report of the Future of Media Commission (2022) (the Report) describes the coming decade as being ‘highly disruptive for Ireland’s media sector (p. 3) as it faces ‘both exciting opportunities and serious threats’ (p. 3). The Report speaks of ‘long-term economic challenges’ for Ireland’s media system, encompassing a decisive shift in advertising revenues away from media towards the technology firms that dominate the digital advertising market. In the case of print media, this will be compounded by declining circulation revenues (p. 3).

Chapter 4 of the Report is titled ‘An Economic Perspective on the Future of Media in Ireland’ and it highlights the significant changes over the last decade to (printed) newspaper and magazine circulation sales in Ireland. According to NewsBrands Ireland, the representative body for national newspapers, the combined sales of print titles by its members is 2.2 million copies per week, down by over 50% in the past ten years. In their submissions to The Future of Media Commission, The Irish Times stated that its daily sales figures have fallen from 117,000 in 2008 to close to 46,000 in 2020 while, during the same period, the average daily print sales for the Irish Examiner have fallen from 53,000 to 18,500 copies.

The UK’s similarly challenging situation is highlighted in the 2021 advice by Ofcom and the Competition and Markets Authority (CMA) to the Digital Secretary. The background to the advice is the UK’s government proposal to create a new pro-competition regime for digital markets, including enforceable codes of conduct applying to digital firms designated as having Strategic Market Status (SMS). In April 2021, the Digital Secretary asked the Digital Markets Unit of the CMA to work with Ofcom to look at how a code would govern the relationships between platforms and content providers such as news publishers, to include ensuring that such relationships are as fair and reasonable as possible. The aim of the code of conduct would be to manage the effects of an SMS firm’s market position, so as to try and ensure that the SMS firm cannot unfairly use its market power and strategic position to distort or undermine competition between users of the SMS firm’s services.

The Advice (dated: November 2021) is titled “Platforms and content providers, including news publishers – Advice to DCMS on the application of a code of conduct”. Page 5 of the Advice refers to the challenges facing news publishers in the UK and also acknowledges how the traditional business model of news media, particularly print media has been substantially disrupted by the growth of digital. The report notes how longstanding revenue sources such as advertising and direct sales have significantly declined as consumers and news consumption have moved online. UK publishers have responded by changing their approaches, so as to engage directly with consumers, and consequently their approaches to distribution, subscriptions and advertising have changed too.

In a frank assessment, the Ofcom/CMA advice states that there is no single solution to the challenges facing news publishers. But, a key element is ensuring that the relationship between the major digital platforms and publishers is fair for both sides in terms of access to consumers and the opportunity to gain a return from content provided to them. From a UK government perspective, there is this need for fairness and how it might be delivered under a new digital markets regime. Tellingly, the Advice also makes reference to the Cairncross Review on a sustainable future for journalism in the UK (published in 2019) and the recommendations made therein.[8]

Forebodingly, recital (55) of the Directive refers to the importance of ensuring “the sustainability of the publishing industry” which, will, in turn, “foster the availability of reliable information”. It is worth noting that NewsBrands Ireland in its pre-Budget submission to the Department of Finance (dated June 2022) refers to the ‘existential threat to the publishing industry, in particular the decline of print circulation and advertising revenue’

A vibrant and strong EU publishing industry is a sine qua non for a “free and pluralist press, essential to ensure quality journalism and citizens’ access to information” (recital (54)). A free and pluralist press “provides a fundamental contribution to public debate and the proper functioning of a democratic society” (recital (54)). These themes are echoed by the NewsBrands Ireland and Local Ireland in their pre-Budget submission (June 2022). They state eloquently that ‘news publishers are pillars of democracy, providing crucial information, insights and perspectives to citizens on the events shaping our society’. Additionally, they assert that ‘news publishers can best fulfil their functions in a democracy if there is a rich and pluralistic information environment that is easily available to all citizens’.

It is worrying that publishing houses across Europe have been forced to cut their editorial teams and this has been most noticeable among local and regional newspapers. This trend is likely to continue as it has proven difficult to monetise content online. This downwards trend could evolve in such a way as to cause permanent damage to the EU’s newspaper sector with negative knock-on effects for EU citizens and indeed the nature and quality of our democracy.

From national press publishers’ rights to the EU press publishers’ right

It is worth noting that two EU Member States introduced a press publishers’ right into their domestic copyright regime before being obliged to do so under the Copyright Directive. In 2013, Germany introduced an ancillary right for ‘publishers of newspapers and magazines’ while in 2014, Spain followed suit when it modified its Copyright Act by introducing a new press publishers’ right which is part of the quotation exceptions.

Neither of these national initiatives enjoyed much success with the Spanish law even causing Google News Service to withdraw from Spain. One particular study in Spain highlighted how traffic on news websites actually declined after the adoption of the new law to the detriment especially of the smaller and lesser known publications.[9]

Economic challenges for European Publishers

In drafting the Copyright Directive, the EU legislature took cognisance of the considerable challenges faced by the European press sector. Scalzini refers to the ‘widespread commercial crisis of traditional press publishers and news organisations in the digital environment’,[10] something that threatens freedom, along with the diversity and quality of the press.

The ubiquity of online press publications has assisted new online services such as news aggregators and media monitoring services. Some of these services have entered the information distribution value chain through their practices of crawling and scraping newspaper websites. Frequently, their core activity consists of (algorithmically) collecting and aggregating similar content together and displaying to their users a collection of hyperlinked headlines to news stories with short extracts of text (snippets) often associated with photographs or videos from online versions of newspapers.[11] Naturally, this has drawn complaints from the press publishers who argue that certain news aggregators are free riding on their press content and are engaged in the systematic and unauthorised use of their original content without any fair distribution or apportionment of the additional value (revenues) generated. The news aggregators and similar services respond by arguing that their services are lawful, facilitate wider access to information, constitute a complementary service and a potential source of additional internet traffic to the newspapers’ websites.

Frequently, the re-use of press content by news aggregators is unauthorised meaning that the actual press publishers lose out on their financial investment. Significantly, recital (54) highlights the ongoing difficulties faced by European press publishers in terms of licensing the online use of their publications to news aggregators and media monitoring services. But it is hoped that the creation of the new ancillary right – the PPR – will make the licensing and enforcement of the PPR (vis a vis ISSPs) less complex and more efficient.

Article 15 and its objectives

Article 15 is designed to provide legal protection to press publications in the context of online use/re-use. Appositely, the provision falls under Title IV of the Directive concerning measures to achieve a well-functioning marketplace for copyright.

In some ways, Article 15 attempts to strike a delicate balance between attempting to sustain the newspaper industry in the EU and ensuring citizens’ access to information. Without access to reliable information, public debate is impaired and the proper functioning of a democratic society is thrown into question (recital (54)).

Article 15 is part of a greater freedom of expression/information ‘framework’ that encompasses Article 11 of the Charter of Fundamental Rights of the EU and Article 10 of the European Convention on Human Rights. Article 10 protects freedom of expression. This right includes the freedom to receive and impart information and ideas regardless of borders.

The Value Gap

Like Article 17 of the Directive,[12] Article 15 addresses the so-called ‘value gap’.[13] The value gap refers to the mismatch between the economic benefits flowing to Information Society Service Providers (ISSPs) (such as news aggregators) and the economic benefits flowing to the underlying rightholder, i.e. the press publisher. The Report of the Future of the Media Commission also adverts to the value gap (at p. 158). The Report refers to situations where ‘rightholders receive a disproportionately low level of remuneration relative to what may be a high level of usage of their works on, typically, an online platform’. The Report also highlights the fact that the Copyright Directive attempts to ensure that the value generated by the online use of copyright-protected work is more evenly distributed and ultimately used to ‘help support a free and pluralist press’.

For many EU copyrightholders, the value gap represents a funnelling of economic value away from creators and into the hands of the digital platforms. In an Article 15 context, the digital platforms, principally news aggregators, are represented by the likes of Google News, Yahoo! News and Apple News. The digital platforms in an Article 17 context are represented by content-sharing platforms like YouTube, Facebook or Vimeo.[14]

Addressing the value gap is the EU legislature’s attempt to recalibrate the EU’s digital economy to ensure that rightholders[15] (including holders of neighbouring rights) are fairly remunerated for their creative works.  

A key provision

Article 15 is a key provision in the Copyright Directive. It provides for a new press publisher’s right (PPR) in the EU. The right accrues to publishers of ‘press publications’, with the term ‘press publications’ defined as follows in Article 2 of the Directive:

“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.’

It is worth noting that periodicals published for scientific or academic purposes, such as scientific journals are not deemed press publications for the purposes of the Directive.’

The PPR is a neighbouring or ancillary right to copyright. It is ancillary to the copyright held by the individual journalists in their literary works.[16] A press publication is often a composite of employee journalists’ literary contributions.

The Principal Benefits of Article 15

Article 15 represents a significant and exciting legal development for press publishers. Article 15 grants EU-based press publishers a new legal right, – the press publishers’ right. In effect, this makes press publishers rightholders under EU Copyright Law

This is a significant legal development for the press sector as it means that (commercial) life should become simpler and less complicated for press publishers, particularly when it comes to their licensing of news content and enforcement of rights under the EU/domestic copyright regimes (See recital (54)). Article 15 should lead to greater efficiencies and less complexity in the context of re-use of press material in an online context.

The objective of Article 15 is to provide legal protection for press publications in the context of online re-use. It achieves this by providing harmonised legal protection for press publishers (and press publications) across the EU27 in the shape of two key exclusive rights – the reproduction right[17] and the making available to the public right.[18] These exclusive rights, contained in the Information Society Directive,[19]  are provided to press publishers in situations where their press publications are used (re-used) online by ISSPs.

These exclusive rights are in fact economic rights. Economic rights are exercised by a rightholder to generate a tangible income from his/her/its protected works. In other words, Article 15 ensures that press publishers will be able to commercialise or monetise their protected press content. Therefore, the next obvious benefit flowing from Article 15 is an economic one! Furgal puts it eloquently where she states:

“The press publishers’ right was to guarantee that press publishers are remunerated for the uses of their content, and that the increased revenues lead to the ‘availability of reliable information’ ”[20]

This notion of remuneration is evident in recital (54) which refers to press publishers “recouping their investments” and repeated again (albeit perhaps more implicitly) in recital (55) where there is reference to the “organisational and financial contribution of publishers in producing press publications”. Recital (55) continues by stating that this organisational and financial contribution by press publishers “needs to be recognised and further encouraged to ensure the sustainability of the publishing industry and thereby foster the availability of reliable information”. Recital (55) is an acknowledgement by the EU legislature that the financial investment by press publishers must be recouped via licence fees payable by the ISSPs. Moreover, the intent of recital (55) is that ISSPs  recognise the significant financial investment/contribution made by press publishers in terms of generating literary and journalistic content. This practical recognition of course would translate into commercial negotiations between the ISSPs and press publishers with a view to agreeing licence fees covering the digital re-use of news content.

Article 15 (1) of the Directive provides as follows:

Member States shall provide publishers of press publications established in a Member State with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the online use of their press publications by information society service providers.

Strengthening the Bargaining Position of Press Publishers

The new PPR addresses the commercial imbalance between press publishers and ISSPs. It strengthens the bargaining position of press publishers vis-à-vis digital intermediaries by creating a clear, primary legal right in favour of the former. The PPR also provides a clear legal basis for licensing negotiations. Moreover, the PPR will act as an impetus to bring both the press publishers and the digital platforms to the negotiating table. This important reform of the EU copyright regime should help to create a level playing field between press publishers and digital services, a development that should allow the former to recoup some of their investments.[21]

The Copyright/Competition Law Dichotomy

The relationship between press publishers and digital intermediaries is part of a broader question on platform regulation and media policy. While this complex relationship is regulated by Copyright Law, it is now increasingly being scrutinised under Competition Law, with the sub-themes of market power and dominance (abuse of dominance) featuring prominently.

The most notable regulatory intervention after the adoption of the Copyright Directive is the News Media Bargaining Code, adopted in Australia in February 2021. This mandatory code was drawn up by the Australian Competition and Consumer Commission (ACCC) following almost three years of public consultation. While the primary function of the code is to govern the commercial relationship between media companies and digital platforms, it also ensures that news media businesses are fairly remunerated for the content that they generate, thereby helping to sustain public interest journalism in Australia. This is all achieved through a framework of good faith negotiations between the parties and an arbitration process to resolve outstanding disputes.[22]

Furgal elucidates that the Australian Code does not belong to the realm of copyright and is not a form of a PPR. Instead, it establishes a bargaining framework under the competition law umbrella for the news businesses and digital platforms to agree (amongst other things) on the remuneration for making news content available.

The Code obliges a digital platform to negotiate on remuneration (a remuneration agreement) whenever a news organisation expresses a desire to do so. Should the two parties not reach an agreement within three months, they are subject to an obligatory binding arbitration. The arbiter then makes a choice between final offers put forward by the parties (so-called final price or baseball arbitration) and their decision is final, but only binding for a period of one year.

In his report titled ‘One year of the News Media Bargaining Code’ [23]Professor Bill Grueskin (Columbia University) asserts that the Code has benefited Australian news organisations to the tune of AUD 200 million in the year since it went into effect. There is some evidence too that the Code has reversed the redundancy trends in Australian journalism. Grueskin’s view that a number of other countries are considering following in Australia’s footsteps are borne out by the facts. Australia’s success story has prompted governments around the world to consider replicating the Australian approach.

In April 2022, Canada put forward a proposal for its own bargaining framework: the Online News Act.[24] While the Act copies the core of the Australian Code, with an obligation to bargain and binding arbitration, it is different in other ways. For example, the Act applies to ‘digital news intermediaries’ whenever they enjoy ‘significant bargain power imbalance’ without the need of designation.

The relationship between news media and platforms in the UK will be regulated by a code of conduct. This decision was confirmed by way of the joint advice from Ofcom and the CMA  to the UK government. The advice, issued in November 2021, recommends adoption of a code of conduct to govern the relationship between digital platforms with strategic market status (SMS) and content producers (not only publishers) as part of the new pro-competiton regime for digital markets. The UK Code envisages fair and reasonable compensation for content providers where their content is used, provided the content and its use is subject to copyright protection.

Besides the aforementioned legislative proposals and various codes of conduct, it is also worth noting that Competition Law was invoked by French publishers against Google France as far back as November, 2019. The complaints were made by several unions representing press publishers and were lodged with the French Competition Authority. The background to these complaints was the adoption in France of the Act of 24 July, 2019, (La Loi n° 2019-775),[25] which transposed the PPR into French Law.

In essence, the publishers’ unions argued that Google France had abused its dominant position by attempting to introduce a royalty-free licensing scheme that allowed them to continue to make use of the work of press publishers without any consequential payment. If the publishers rejected the royalty-free licensing scheme, they ran the risk of being excluded from being referenced in any Google news sites (de-indexing). This would almost certainly have reduced online visibility for the recalcitrant publisher.

The complainants requested interim measures aimed at ordering Google to enter into good faith negotiations with them. In holding in favour of the complainants, the French Competition Authority ordered interim measures against Google LLC, Google Ireland Limited and Google France, enjoining them to enter into good faith negotiations with the press publishers and news agencies. The Competition Authority’s decision was based on its finding that Google is in a dominant position and the practices denounced by the complainants were likely to be qualified as anti-competitive in nature.

The Report of the Future of Media Commission

The comprehensive  Report of the Future of the Media Commission (the Report) was written by the Future of Media Commission (the Commission) and published in July 2022. The Commission was established as an independent body to undertake a comprehensive and far-reaching examination of Ireland’s broadcast, print and online media and to consider how media can remain sustainable and resilient in delivering public service aims over the next decade.

One of the salient conclusions of the Report was the need to rebalance the relationship between media and Big Tech. The Commission strongly supports direct negotiations between media and Big Tech in a bid to recalibrate their relationship within the framework of the Copyright Directive. But, should such negotiations prove insufficient, then the Commission believes our government should be prepared to move swiftly to pursue additional measures as seen in other EU Member States and Australia. The recommendation made by the Commission in the context of the media/Big Tech relationship (i.e. Recommendation 6-9) was for an assessment of the impact of the Copyright Directive to be carried out by the Department of Enterprise, Trade & Employment (DETE). The Commission recommended that the assessment be carried out as soon as practicable after the transposition of the Directive into Irish Law and published within 12 months of the transposition of the Directive. If the DETE review were to find an unfair and inadequate rebalancing between traditional news publishers and large online platforms, then the Commission recommended that our Government ‘move swiftly to take further steps to redress the imbalance, including the introduction of new copyright or competition law measures, as necessary’.

The Commission also recommended that the DETE-conducted review should include an assessment of the actual and forecast economic benefits flowing to Irish publishers as a result of negotiated agreements, the views of publishers and platforms regarding the conduct of negotiations and the experience of individual publishers and collectives as regards negotiations.

The Directive was transposed in Ireland on 19 November 2021[26]  and the DETE assessment has yet to take place. Increasingly, it is looking more likely that any Irish assessment of the impact of the Copyright Directive and the transposed Article 15 will be pushed back to coincide with the European Commission review of the Copyright Directive, due to take place in June 2026.

On 23^rd January, 2023, Minister Catherine Martin[27] published an Implementation Strategy and Action Plan for the Future of Media Report. The DETE has also proposed a stakeholder consultation with the stakeholder group to be established in Q. 3, 2023, under the Action Plan. As things stand, there is no specific review proposed for the transposed Article 15 in Ireland.

Some concluding thoughts

From an Irish press publisher’s perspective, there appears to be three possible ‘routes’ to try and achieve a fair financial return for the online re-use of its press content by a news aggregator.

They are: the copyright/copyright law route; the competition/competition law route, and, lastly the collective management organisation (CMO) route. In terms of a regulatory tool to govern the PPR, copyright law and competition law should not be seen as mutually exclusive. In many ways, these two fields of law are complementary and could be relied on simultaneously by press publishers to provide legal protection for their  online content and to generate revenues (through licensing agreements).

There may be occasion where the ISSP involved is so large in terms of market share, that there is a natural role for Competition Law to play. To use the terminology of the Australian News Media Bargaining Code, there may be ‘a significant bargaining power imbalance’ between the ISSP and the press publisher. Should there be an abuse of a dominant position by an ISSP in Ireland, a prejudiced press publisher could potentially rely on Sct 5 of the Competition Acts (2002-2017) which prohibits  abusive practices by dominant undertakings.

The added value of the collective management of the PPR has been showcased recently in both Denmark and the Netherlands. Interestingly, Denmark was one of the first EU Member States to transpose Article 15 (and Article 17) so perhaps it is natural that it is among the first countries to create a publisher CMO. The Danish Publishers’ Collective Management Organisation (DPCMO) was established in July, 2021. It comprises 36 Danish media companies and represents 97% of Danish publishers. Earlier this year, the DPCMO entered into key agreements with both Microsoft and Google. On 13 February 2023, the DPCMO signed an interim licensing agreement with Microsoft while on 9 May 2023, it entered into a licence agreement with Google, with the intention of negotiating a long term agreement in the future.

While the Danish and Dutch CMO initiatives are probably still somewhat experimental in nature, they do, in many ways, make sense. The CMO approach is used successfully in the music sector and it may be possible for Irish publishers to use the music CMO ‘template’ and adapt it for media/news publishing purposes. A good example of a successful and effective music CMO is the Irish Music Rights Organisation (IMRO). IMRO is a membership based CMO, made up of songwriters, composers and music publishers. It administers the performer’s right in copyright music on behalf of its Irish membership and members of the overseas societies that are affiliated to it.

Irish press publishers must now consider their options in terms of protecting their new legal right and their online press content. There are further practical considerations such as recouping financial investments and the generation of revenues from the re-use of online press content by ISSPs. Press publishers may well discover that there is, in fact, no single best route and that using a combination of the routes mentioned above  generates the best results.

Notes:

[1] The value gap refers to the mismatch between the economic benefits flowing to the digital platforms e.g. news aggregators such as Google News and the economic benefits flowing to the underlying rightholder, in this instance, the press publisher. Recital (61) of the 2019 Copyright Directive adverts to the value gap when it refers to the rightholder’s ‘ability to obtain appropriate remuneration’ in situations where online content-sharing service providers communicate or make available to the public copyright-protected material which has been uploaded by individual users.

[2] A neighbouring right (or, more correctly, a right neighbouring on copyright) protects the legal interests of certain persons or legal entities who contribute to making works available to the public. The holder of a neighbouring right obtains a copyright-like property right, in effect, a secondary right which is linked to the entrepreneurial exploitation of copyright. In the specific context of this paper, the press publisher is the holder of the entrepreneurial neighbouring right and the entrepreneurship arises through the creation of a ‘composite’ press publication from a large number of copyright-protected  literary works which are written by individual employee (or, freelance) journalists. See Holyoak & Torremans, Intellectual Property Law, 9^th Edn, OUP, (2019), at 228.

[3] Recital (54) of the 2019 Copyright Directive refers to ‘news aggregators and media monitoring services’ in the context of ISSPs. A more formal definition of ‘Information Society Service’ can be gleaned from Article 2 (5) of the 2019 Copyright Directive (the Definitions provision). It states that ‘ ‘Information Society Service’ means a service within the meaning of point (b) of Article 1 (1) of Directive (EU) 2015/1535. This Directive is a codifying instrument that lays down a procedure for the provision of information in the field of technical regulations and Information Society services.  Article 1 (1) (b) of that Directive defines an ‘Information Society Service’ as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.

[4] Ula Furgal, The Emperor Has No Clothes: How the Press Publishers’ Right Implementation Exposes Its Shortcomings’ GRUR International, XX (XX), 2023, 1-15, at p. 3.

[5] Examples include Google’s Accelerated Mobile Pages (AMP) and Facebook’s Instant Articles (distributed content). However, both of these initiatives seem to have diminished significantly in importance.

[6] The news aggregators are not really offering readers ‘a single bundle of diverse content’. Instead, readers are able to select only the articles they wish to view, without necessarily being exposed to other content. Publishers have therefore had to adapt their online pages to respond to the various ways in which readers enter their sites. Each page on which a reader arrives becomes that user’s effective ‘front page’: Source: The Cairncross Review: A Sustainable Future for Journalism (12 February 2019), at p. 31

[7] The largest Irish media group, Independent News and Media Group Limited (INM) was acquired by Mediahuis in 2019 and re-branded to Mediahuis Ireland in May 2021. Mediahuis Ireland publishes the Sunday Independent, the Belfast Telegraph and the Sunday World. In addition, it produces 12 weekly regional newspapers. Mediahuis (Headquartered in Antwerp, Belgium) is a privately owned European media group founded on 1 January 2014 as a joint venture between two prominent Belgian publishing groups, Corelio and Concentra. Besides its presence in Belgium and Ireland, Mediahuis has also acquired companies in the Netherlands, Luxembourg and Germany. Today, Mediahuis has more than 30 newsbrands across 5 countries.

[8] THE CAIRNCROSS REVIEW – A Sustainable Future for Journalism, 12^th February 2019 (160-page review). Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/779882/021919_DCMS_Cairncross_Review_.pdf

[9] See Study by Nera Consulting, commissioned by the Spanish Association of Publishers of Periodicals (AEEPP), ‘Impact of the New Article 32.2 of the Spanish Intellectual Property Act’ (9 July 2015). According to the Study, the average fall in internet traffic to news websites was 6% but the smaller news publishers saw a drop of 14% in their internet traffic.

[10] Silvia Scalzini, ‘The new related right for press publishers: what way forward? (Eleonora Rosati (ed) Handbook of European Copyright Law, Routledge)

[11] Silvia Scalzini, ‘The new related right for press publishers: what way forward? (Eleonora Rosati (ed) Handbook of European Copyright Law, Routledge)

[12] Article 17 of the Directive was the theme of last year’s IMRO/Law Society Annual Copyright Lecture. Article 17 contains a new liability regime for online content sharing service providers where they display protected copyright material on their platforms. The provision is aimed at the likes of YouTube, Vimeo and Daily Motion.

[13] This issue is sometimes termed the transfer of value problem.

[14] In the music sector where there have been longstanding complaints levelled at, for example, YouTube, Facebook and Vimeo by music rightholders to the effect that the digital platforms  undercompensate the rightholders for streams of user-uploaded videos which contain copyright-protected content.

[15] To include the likes of musicians, video-producers and photographers.

[16] A neighbouring right or, more correctly, a right neighbouring on copyright is a right exercised independently and without prejudice to copyright. Such rights do not concern the creation of the copyright work. Instead, neighbouring rights relate to the ancillary activities that surround the author and are, therefore, sometimes referred to as ‘ancillary or related rights’. Traditionally, neighbouring rights have been granted to three categories of beneficiaries: performers, producers of phonograms and broadcasting organisations. The first international response to providing protection for neighbouring rights is the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. Taking performers as an example, their rights are recognised/protected because their creative intervention is necessary to give life to, for example, musical works, dramatic and choreographic works and motion pictures. Quite often the performer of a song will be different from the original songwriter. The latter owns the copyright in his/her original musical work but the individual who performs (sings) the song avails of a neighbouring legal right called the performer’s right.

[17] The reproduction right is contained in Article 2 of the Information Society Directive where it is described as an exclusive right ‘to authorise or prohibit, direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part of a protected work.

[18] The making available right refers to making such works available to the public in such a way that members of the public can access these works from a place and at a time individually chosen by them. Most national laws implement this right as a part of the right of communication to the public although some do so as part of the right of distribution.

[19] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the Information Society, OJ L167, (22 June, 2001), pages 10 – 19.

[20] Ula Furgal, The Emperor Has No Clothes: How the Press Publishers’ Right Implementation Exposes Its Shortcomings, GRUR International XX (XX), 2023, 1-15, at p. 2.

[21] Silvia Scalzini, The new related right for press publishers: what way forward? In Eleonora Rosati (ed), Routledge Handbook of European Copyright Law

[22] Joint Media Release, dated 25 February 2021, ‘Parliament Passes News Media and Digital Platforms Mandatory Bargaining Code’ (Minister for Communications, Urban Infrastructure, Cities and the Arts, The Hon Paul Fletcher MP and, The Treasurer, the Hon Josh Frydenberg MP): https://ministers.treasury.gov.au/ministers/josh-frydenberg-2018/media-releases/parliament-passes-news-media-and-digital-platforms (accessed 26 April 2023)

[23] ‘One Year of the News Media Bargaining Code’, Findings by the Judith Neilson Institute for Journalism’s Inaugural Alan Moorehead Journalist in Residence. Report by Bill Grueskin, Professor of Professional Practice at Columbia University’s Graduate School of Journalism, New York. https://jninstitute.org/wp-content/uploads/2022/03/Bill-Grueskin-Report-web.pdf (accessed 26 April 2023)

[24] This is the abbreviated title of the legislation. The formal title is: Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada. As of 26 April 2023, the Bill has passed all stages of the House of Commons and is at Consideration in Committee stage in the Senate.

[25] LOI n° 2019-775 du 24 juillet 2019 tendant à créer un droit voisin au profit des agences de presse et des éditeurs de presse

[26] The Copyright Directive was transposed by virtue of secondary legislation, namely, S.I. No. 567/2021, European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021.

[27] Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media.