STENTORS: Press publications and their online use. What will bring the new legislation? (Part II)09/13/2019
In this two-part article, we discuss the anticipated benefits and impacts of the new legislation at European Union level(1) on press publications when used online.
In the first part of the article, we discussed a new definition of a press publication that unified its understanding at European Union level, as well as the protection of press publications when used online.
In the second part of this article, we compare the rights of publishers of press publications (hereinafter referred to as “publishers”) with rights of the authors of the texts and other subject matter of protection contained in it (hereinafter referred to as “authors”), we point out a new way of remuneration of those authors, and finally identify the information society service providers that will have to pay for online use of press publications.
The rights of publishers versus the rights of the authors
In general, the rights of authors to works and other subject matter (hereinafter referred to as “works”) contained in press publications used online will not be affected. This means that the author has the right to give permission to use his work and to use the work himself. In this case, publishers will not be able to invoke the protection granted to them under the Directive against authors or other authorized users of the same works.
However, the publisher and the author may agree to otherwise modify their rights, for example by granting an exclusive license to the work of the publisher. By granting an exclusive license, the author (e.g. journalist) loses the property rights in question to the work for the duration of the license, i.e. he will not be able to give permission to continue to use the work or to use the work itself.
Similarly, if the author is employed by the publisher as an employee, he will also not possess any property rights, since their transfer to the employer is automatically conducted by law.(2) Of course, the transfer of property rights to the publisher can be restricted in an employment contract or another agreement, but such a restriction always requires the agreement of both parties.
The above examples are only examples of basic variations and therefore, each contractual relationship to the work between the author and the publisher of the press publication should be considered individually.
In any case, the same situation has existed up to now and is not a novelty in terms of copyright.
Authors' entitlement to a share of the revenue
The Directive provides that the Member States shall provide that authors of works incorporated in a press publication receive an appropriate share of the revenues that publishers receive for the use of their press publications by information society service providers.
It is too early to assess what will be the amount of the mentioned share and whether it will also apply to the authors who created the works under an employment contract. However, the Directive in Article 15 (5) does not expressly provide that the obligation to provide a share of that income will not apply to employment relationships, the systematic of recital 59 of the Directive indicate the possibility of such a restriction.(3)
The Directive, on the other hand, provides the right to the publisher of a press publication to receive a share of the compensation of the author's remuneration for the use of the work by way of exception or limitation (e.g. reprographic reproduction of the work under § 41 of the Copyright Act, where e.g. the library pays authors compensation for copying / legally downloading of non-essential parts of the work by library visitors who did such action).
Information society service providers
In general, it will be providers that provide services that are normally provided for remuneration, remotely, electronically and at the individual request of the recipient of the service.
For the sake of easier of interpretation, we will subdivide this definition into parts, whereas:
“at a distance“ means that the service is provided without the parties being simultaneously present;
“electronically“ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
“at the individual request of a recipient of services“ means that the service is provided through the transmission of data on individual request (for example, an individual request does not mean television broadcasting, radio broadcasting or teletex broadcasting (through television).
In principle, information society service providers that use a press publication or part of it online (e.g. article aggregator, online electronic journals that have used an article of press publisher, online platforms, social networks, etc.) for remuneration, will be obliged to pay, regardless of whether they receive such remuneration from a service recipient or from advertising.(4)
Providers of services, such as not-for-profit online encyclopaedias, not-for-profit educational and scientific repositories, open-source software-developing and-sharing platforms, providers of electronic communications services as defined in Directive (EU) 2018/1972, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use, shall not be considered as providers of information society services for the purposes of the Directive.
Expected benefits and impacts in a nutshell
The main changes that the Directive will bring regarding the press publications are the revenue of publishers for its online use. That can have a positive impact on the budget of publishers and may help to support the better results of authors' creative intellectual activity. The Directive should also prevent" the stealing of the content of publishers" and limit the profits of the platforms that collect the works of the publishers without any right to do so.
The Directive should also bring higher remuneration for authors of texts and other subject matter, either directly through the revenue share of the online use of the press publication by the information society service providers, or indirectly by increasing wages due to the higher budget of publishers of press publications.
In addition to the above mentioned expected changes, the Directive will also introduce a new administration and the associated need to elaborate agreements for the online use of the press publications, both between individual publishers of press publications and between those publishers and third parties who would like to use content of press publications on their websites when providing the information society services.
The Slovak Republic is obliged to transpose the Directive until 7th June 2021.
by Marek Bugan
(1) Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (hereinafter referred to as “Directive”).
(2) Article 90 of the Act no. 185/2015 Coll Copyright Act (hereinafter referred to as “Copyright Act”).
(3) (...) Authors whose works are incorporated in a press publication should be entitled to an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers. That should be without prejudice to national laws on ownership or exercise of rights in the context of employment contracts, provided that such laws are in compliance with Union law.
(4) (Court of Justice of the European Union in proceedings under file no. C-291/13, the answer to the fourth prejudicial question.