Van Eechoud (2017)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education Libraries, archives, museums and other cultural activities

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing Video game publishing Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

van Eechoud (2017)
Title: A publisher’s intellectual property right: Implications for freedom of expression, authors and open content policies
Author(s): van Eechoud, M.
Year: 2017
Citation: van Eechoud, M (2017), A publisher’s intellectual property right: implications for freedom of expression, authors and open content policies, Research paper for OpenForum Europe: https://www.ivir.nl/publicaties/download/OFE_Implications_of_publishers_right.pdf
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Bently et al. (2017)
About the Data
Data Description: The study consists of a legal analysis of the justifications given for the introduction of a new publishers' right based on the Copyright in the Digital Single Market proposal paper.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
Funder(s):
  • OpenForum Europe

Abstract

"The proposed Copyright in the Digital Single Market Directive (COM(2016)593) of July 2016 would introduce a EU wide new intellectual property right for publishers of press publications, or ‘PIP’. Publishers would have the exclusive right to authorize or prohibit any reproduction (in whole or in part, direct or indirect) and making available to the public of ‘press publications’, for a period of 20 years. This study examines the justifications for the proposed new PIP, and assesses how it would fit in the EU copyright framework. In this study, special attention is paid to the freedom of expression dimension, for two reasons. One is that the most important justification advanced in support of a publisher’s right is that it promotes a sustainable quality press and media pluralism. The vital role that the press play in democratic societies as public watchdog and forum for public debate — is a key consideration — in the interpretation of the fundamental right to freedom of expression as guaranteed under the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. The second reason is that the introduction of an intellectual property right, i.e., an exclusive right to control information flows, itself constitutes an interference with freedom of expression. The main recommendation is that the EU legislator should elaborate a clear assessment of what pressing social need a PIP would serve, of the PIP’s proportionality and of alternative solutions (other than merely the option to encourage stakeholder dialogue, cf. the Impact Assessment). This is especially important because, for news and other public interest information, the European Court of Human Rights (ECtHR) upholds a strict standard of scrutiny. Any regulatory intervention must comply with the right to freedom of expression, as laid down in article 10 ECHR / 11 CFR."

Main Results of the Study

• There is no demonstrable justification for a publisher’s right based on the concerns of the internal market, with similar measures having previously failed in Spain and Germany (thus demonstrating no obstacle within the market).

• Due to increases in transaction costs and rights clearances caused by an additional layering of rights, this may create adverse effects for creators, SMEs and citizens. Any additional revenue gathered from the new right is unlikely to benefit journalists or content creators (having no claim to this revenue), which may undermine the purpose of the new right as a means of resolving the traditional print crisis. Further, citizens’ increased difficulty in accessing information may have freedom of information/speech implications.

Policy Implications as Stated By Author

The study identifies a number of policy implications:

  • The main recommendation is that the EU legislator should elaborate a clear assessment of what pressing social need a PIP would serve, of the PIP’s proportionality and of alternative solutions (other than merely the option to encourage stakeholder dialogue, cf. the Impact Assessment). This is especially important because, for news and other public interest information, the European Court of Human Rights (ECtHR) upholds a strict standard of scrutiny. Any regulatory intervention must comply with the right to freedom of expression, as laid down in article 10 ECHR / 11 CFR.
  • "In its current form, the proposal seems to serve one set of interests, those of legacy print media. As Tworek & Buschow (2016) suggest, the rhetoric of ‘theft’ advanced by traditional media in support of a claim for new intellectual property rights is a just strategy to ward off threats from new media. The attempt to cement the traditional form of press publications into law may well set back the function of the press as public watchdog."



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets