Art. 15 of the Copyright directive establishing a press publishers’ right over news aggregators and online platforms in general cannot be implemented via a mandatory collective licensing system. This is the answer rendered by Commissioner Thierry Breton to a Parliamentary Question filed by the Czech MEP of the ECR group (conservative) Alexandr Vondra. The Commissioner clarified that a mechanism of mandatory collective management would deprive publishers of the exclusive right granted under Article 15 to authorise or prohibit the use of their publication.”
This clarification has to be welcomed because various European countries are considering, under the pressure of publishers organizations, to take such an implementation approach (for example in Czechia and Italy). As a consequence of that, publishers will have therefore to negotiate individually or on the basis of voluntarily collective organizations, respecting however the will of the ones who do not intend to take part to it.
The idea to mandate the collection of the publishers’ rights emerged because of the difficulties encountered in enforcing art. 15 in countries where the provision has been already implemented, that is to say France (while in previous years similar failure occurred in Germany and Spain with national legislation anticipating the Copyright Directive).
The Copyright Directive is aimed at reinforcing the negotiation powers of publishers vis-à-vis news aggregators, however it does not mandate an agreement at any cost, since Internet platforms may decide not to use (and therefore not to pay for) the protected news content. However, when the matter comes to dominant operators like Google, publishers appear reluctant to disappear from sits services, and in particular from the News and Search ones, and therefore they would like the right of both been indexed and be paid for that. Google is playing well against this contradiction and it refuses to pay, maintain that publishers receive an advantage from the traffic generated by Google’s indexation.
In France the matter has become a matter for the competition authority, in order to decide whether a company like Google should be obliged to negotaiate and, to the last extent, to conclude an agreement for with an economic value. The controversy is expected to migrate, sooner or later, to the European Court of justice for a proper interpretation of the Directive.
The escamotage of the mandatory collecting management would have simplified the negotiations for publishers, while creating issues with the rightsholders which want to remain free to decide what to do, and this is the reason why Commissioner Breton replied negatively. This option appears now to be closed although concerned Member States could still insist, trying to set a legal frame compatible with the Directive. In fact, an answer by a Commissioner cannot be considered as a binding act or a decision. However, the risk for an infringment procedure is very high once the Commission has openly spoken about a matter.
Here the Commissioner’s answer and the MEPs question below for your convenience:
Answer by Commissioner Breton
“The Commission considers that Member States are not allowed to implement Article 15 of Directive (EU) 2019/790 on copyright in the digital single market (the ‘DSM Directive’)1 through a mechanism of mandatory collective management. Article 15 grants publishers of press publications the exclusive rights to authorise or prohibit the distribution and the making available of their publications by information society services. Imposing mandatory collective management would deprive publishers of this exclusive right by precluding publishers’ choice to authorise or prohibit the use of their publication.”
Question by MEP Alexandr Vondra
“There is an ongoing debate in Czechia regarding the implementation of Directive (EU) 2019/790 on copyright and related rights in the digital single market. Publishers want the mandatory collective management of the rights granted under Article 15 to be allowed.
Does Article 12 of Directive 2019/790, Article 5 of Directive 2001/29/EC, Directive 2014/26/EU or any other EU law prevent the Member States from establishing either a mandatory collective management of the right of internet search engines to display a press publication in the results of an online search (i.e. not only single words or very short extracts), or a mandatory collective management of the right of press publishers to remuneration for the use and display of the content of a press publication in the results of an online search (i.e. not only single words or very short extracts), without affecting the other aspects of the exclusive right of press publishers to their press publications (this second option should not be understood to mean that the exclusive right is reduced to the right to remuneration)?”