Presentation by Ula Furgal at the 2019 CMPF Summer School for Journalists and Media Practitioners - Covering Political Campaigns in the Age of Data, Algorithms & Artificial Intelligence
2. The problem
The discussion
Role of journalists
The solution: press publishers’ right
Press publication: a subject-matter
Exclusive rights
Right holder
Right of making available
Snippets and reproduction
Safeguards for journalists
Copyright exceptions
6. Links & communication to the public
Art. 3(1) InfoSoc Directive
[…] the exclusive right to authorise or prohibit any communication to the public
of their works, by wire or wireless means, including the making available to the
public of their works in such a way that members of the public may access
them from a place and at a time individually chosen by them.
a response to development of modern technologies
generally-formulated
to cover all modes of communication of work to a public which is not
present at a place where transmission originated
7. Links & communication to the public
Svensson C-466/12
Two criteria:
a) Act of communication
links provide direct access to works
potential access is sufficient: it is for users to decide if they click through
b) Communication to the public
indeterminate, a fairly large, number of recipients
all potential users of a website
8. Links & communication to the public
New public
public that was not originally taken into account by the copyright
holders when they authorised the first communication to the public
no restrictive measures = all internet users create public
restricitve measures in the online news environment?
9. Hyperlinking and new public flowchart
João Pedro Quintais
Untangling the hyperlinking web: In search of
the online right of communication to the public
J World Intellect Prop. 2018;21:385–420
https://doi.org/10.1111/jwip.12107
10. Snippets and reproduction
Art. 2 InfoSoc Directive
[…] the 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
[…] for authors, of their works […]
work: original expression, author’s own intellectual creation
parts of work: enjoy protection […] provided that they contain elements
which are the expression of the intellectual creation of the author of the
work
Infopaq C-5/08
11. Snippets and reproduction
Protection of news and press?
Art. 2(8) Berne Convention
The protection […] shall not apply to news of the day or to miscellaneous facts having
the character of mere items of press information.
Infopaq C-5/08
newspaper articles are literary works
form, manner in which the subject is presented, linguistic expression
choice, sequence and combination of words, used to express certain fact
12. Snippets and reproduction
Length?
certain isolated sentences, or even certain parts of sentences in the text in
question, may be suitable for conveying to the reader the originality of a
publication such as a newspaper article
InfopaqC-5/08
Restrictions to creativity?
13. The problem later on…
licensing & remuneration
enforcement
threat to free & pluralistic press
16. How?
Open letters
Position papers
Statements
Press releases
Reports
Emails
Public campaigns
EC Public Consultation on the role of
publishers in copyright value chain
https://www.forbes.pl/prawo-i-podatki/wydawcy-apeluja-
o-poparcie-dyrektywy-o-prawie-autorskim/0zme72g
20. 1) Better off
2) Legal certainty
3) Negotiation position
4) Equality
5) Innovation
6) Value of the press
7) Internet freedom
8) Right to information
23. Negotiation position
Publishers vs platforms
Counter-balancing market
power
One-stop shop
Authors vs publishers
Autonomy from authors
Hegemony on the web
27. Journalists in the discussion
No one, universally-shared position
No information, no initiatives
No consistency over time
Detached from the online news environment
31. CDSM Directive: art. 15 (ex 11)
Member States shall provide publishers of press publications established in a
Member State with the right of reproduction and the right of making available for
the online use of their press publications by information society service providers
The rights shall not apply to private or non-commercial uses of press publications
by individual users
The rights shall not apply to acts of hyperlinking
The rights shall not apply in respect of the use of individual words or very short
extracts of a press publication
33. Press publication
Collection composed mainly of literary works of a journalistic
nature
individual item within a periodical or regularly updated publication under
a single title
has a purpose of providing the general public with information related to
news or other topics
is published in any media
is published under the initiative, control and editorial responsibility of a
service provider
art. 2(4) CDSM Directive
34. Work of a journalistic nature
Works
created by professional journalist
originating with press (publisher)
produced pursuant to journalistic
standards
Data Protection Directive: exception for
processing data for journalistic purposes
No clear, easily applicable criterion
Categories of works
Open catalogue
Directives concerning particular
categories of works
Painer C-145/10
All works, regardless of a category, are
protected equally
35. Quality journalism
CDSM Directive
Contributing to public debate and proper functioning of democratic societies
Provides public with reliable information
CoE Committee of Experts on Quality Journalism
List of prerequisites concerning the methods and processes of reporting, as well as
principles, values and purposes involved in the news production
Opposite of mis/disinformation
Journalistic studies theories
Copyright egalitarianism
36. Editorial initiative, control and
responsibility
CoE Recommendation on new notion of media
Editorial control an indispensable requirement for online service or activity to be
considered as media
Elements of editorial control: editorial policy, editorial process, moderation and editorial
staff
AVMS Directive
Editorial responsibility as an exercise of effective control over the selection and
organisation of the program
Inapplicable to online versions of newspapers
Editorial initiative
37. Press publication
A number of undefined, foreign to copyright, terms inviting
subjective judgements
38. Related rights: subject matter
Rights neighbouring to copyright
Right holders: performers, phonogram producers, broadcasting organisations and
film producers
Justification: creativity in the performance
organisational and financial effort
Subject matter: no common definition
no originality requirement
40. Related right: press publication
www.rp.pl/Polityka/305069890-Droga-
Koalicji-do-sukcesu-wiedzie-przez-100-mld-
zl.html
www.rp.pl
41. Term of protection
2 years after publication of press publication
When does the publication of a press publication as „individual item” take
place?
43. Right holder
Publisher of a press publication
service providers, such as news publishers or news agencies, when they publish press
publications
established in the EU Member State
Not effective erga omnes
Effective towards information society service providers
any service normally provided for remuneration, at a distance, by electronic means and
at the individual request of a recipient of services
44. Right of making available
Does not apply to acts of hyperlinking
But:
double-layering of the rights
application of right depends on the right holder
45. Reproduction and snippets
Does not apply to individual words or very short extracts
of a press publication
But:
no originality requirement
no explicit limit of words
46. Reproduction and snippets
Role of snippets:
• context
• relevance
• efficiency
Can link play its function without a preview?
49. Safeguards?
1) the right shall leave intact and shall in no way affect any rights provided for
authors in respect of the work incorporated in a press publication
2) authors shall receive an appropriate share of the revenues received by press
publishers
Contractual relationship?
Journalistic freedom?
50. Copyright exceptions
Right does not apply to private or non-commercial uses of press publications by
individual users
private use exception made mandatory?
Copyright exceptions of the InfoSoc Directive, Orphan Works Directive, and
Marrakesh Treaty Implementation Directive apply mutatis mutandis (with
necessary alterations)
open catalogue of exceptions in InfoSoc Directive
potential difference between exceptions applicable to copyright and
press publishers’ right