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Article 11: the Press Publishers’ Right

Multiple Negative Impacts on the #FutureOfKnowledge

A monopoly in information

There can be no copyright in news or information: it would be against the public interest to have to seek permission before sharing information. Even the oldest copyright convention (1886) states that there is no copyright in news or facts of the day.

But a right in news publications, or so called press publishers’ right, which covers even the “smallest extracts” of text, video, photo, comes very close to creating a new right in information itself – to the detriment of public debate and the exchange of ideas. For a short overview on the impact of this so-called Article 11 on the future of knowledge, check out our ‘1-minute issues’ brief.

According to Prof Van Eechoud, “ the introduction of an intellectual property right, i.e., an exclusive right to control information flows, itself constitutes an interference with freedom of expression” (Van Eechoud, A publisher’s intellectual property right: Implications for freedom of expression, authors and open content policies, 2017)

Furthermore, the press publishers’ rights combined with the “content filters” required under Article 13 effectively necessitates that online platforms use filtering technology to block reproductions of small text extracts.

A right in small extracts – and hyperlinks?

Creating a right that applies to such pieces of text would be enormously damaging to the well embedded culture of researchers that quote from other works and credit the authors they use and point to their sources as a matter of ethics.

Even setting aside the amendments which expressly protect “snippets” under the right, the academic report for the European Parliament notes that “the implications of Article 11 for the re-use of snippets are (…) extremely serious” (Study for the Legal Affairs Committee, European Parliament, 2017).

There is considerable uncertainty as to whether this right would also harm the ability to create hyperlinks – which often include a title or small extracts of text, and are frequently accompanied by a description. The implications of getting this wrong are hard to imagine.

A threat to open access

The new press publishers’ rights challenges open access practices and policies in science and academia: irrespective of a potential contract between an author and a publisher, publishers would have their own right in the publication allowing it to control further publication, irrespective of the limitation of the contract. In the most generous interpretation of the proposal, “the only open access road that would remain untouched by a new right of publisher would be the so-called gold road of open access, where an article is immediately published in open access mode in dedicated  journals” (European Copyright Society, 2016, page 5).

Publishers are pushing for the broadening of the scope of this right to scientific publications. But the scope of the right is already uncertain – according to legal scholars “it seems eminently arguable that the definition would include The Garden magazine (a monthly publication of the Royal Horticultural Society), a football fanzine (or match-day programme), an auction catalogue (e.g. from Sotheby’s), the IPKat blog, the Cambridge Law Journal, a multi-edition cases and materials book, a Research Centre website, Who’s Who, The Oxford Dictionary of National Biography, The Time Out Guide to London Restaurants or the Rough Guide to Peru” (Letter from 37 professors and leading scholars of Intellectual Property, 2016, page 4).

In any case it is also clear that the press publishers’ right applies to public bodies’ publications.  It creates “a new layer of hard rights, in an environment where the promotion of re-use of public sector data still largely depends on soft instruments, both at EU and national levels” (Van Eechoud, A publisher’s intellectual property right: Implications for freedom of expression, authors and open content policies, 2017).

A looming battle to preserve copyright exceptions for research, quotes, etc.

Copyright exceptions – for teaching and research purposes are already limited and are not harmonised across the EU. Each European Member State chooses whether or not it wants to have an exception in national law. Adding a new right for publishers for the same content that is already covered by the author’s copyright means that two rights will need an exception to apply if an educational use is to be permitted. For example, if there is an exception for research, but which does not apply to the press publishers’ right, research uses will be blocked. Practically, when the new copyright Directive will be implemented into national legislation, educational and research institutions will have to work hard to get exceptions to also apply to the new press publishers’ right.

Academics write that “an additional layer of 28 national rights—for which each member state may choose different exceptions and limitations to be applied—will undoubtedly make the Digital Single Market and the cross-border access to cultural content harder to reach” (Opinion of the CEIPI, 2016; also Opinion of the European Copyright Society, 2016).

A new right to block text and data mining

What is true for the already existing exceptions, is even more true for the new text and data-mining exception that is currently also being discussed (check out our ‘1-minute issues’ brief). The new layer of press publishers’ rights that arises from a publication requires new efforts to identify the owner of those rights and creates a new obstacle to content mining. All the more so, as the right targets the smallest text extracts.

A hurdle to efficient machine learning at a crucial time in the Artificial Intelligence (AI) revolution

As pointed out by the authors of a major report on AI commissioned by the UK government, “Growing The Artificial Intelligence Industry In The UK“: “Growing the AI industry in terms of those developing it and deploying it requires improved access to new and existing datasets to train, develop and deploy code (…) Very simply, more open data in more sectors is more data to use with AI to address challenges in those sectors, increasing the scope for innovation.” Having access to news publications is a crucial part of machine learning in terms of language acquisition and understanding. The proposal for a press publishers’ right, by jeopardizing this access, is clearly placing obstacles on the development of AI in the European Union, with the inherent risk of other geographies taking (yet again) the lead.

Shrinking the public domain and creative commons licences

A public domain work can be brought back into copyright with the press publishers’ rights. Posting any type of text, video or image on a “news” or “entertainment” website would create a new 20 year long right in the content for the publisher, regardless of whether the work is in the public domain or not. Academics from CEIPI write that “expanding rights and lifting materials out of the public domain has unwanted consequences impinging greatly on freedom of expression and democratization” (Opinion of the CEIPI, 2016, page 17).

The public domain status of a work would not be an obstacle to grant neighbouring rights to publishers for digital uses of the content of their publications. Works published under public copyright licenses, such as Creative Commons, might also be restricted by the press publishers’ right over the original publication.

Protection is also retroactive: publications from 20 years (+1 day) ago would get this new press publishers’ right! For archives, this would mean that after having paid a licence to acquire paper newspapers, then paid again to digitise them (in some case multiple times due to format shifting in case of changes in technological support), they will have to pay yet again as a result of this new right.

Does this right do anything good?

All the evidence points to the contrary: from experiences in Germany or Spain, where similar rights were created, to reports from the European Commission’s own Joint Research Centre or those prepared for the Legal Affairs Committee of the European Parliament.

Some publishers oppose it. Some journalists worry that it will lead to less money for them, others point out that should there be any new revenue, there is no guarantee that they would ever benefit themselves.

Finally, as any publication would automatically benefit from the new right, which comes with no obligation to allocate any collected funds to quality journalism, it fails to support the stated aim of enhancing quality journalism.

For a short overview on the impact of this so-called Article 11 on the future of knowledge, check out our ‘1-minute issues’ brief.