Part 2: Copyright as a means of intervening

There was a short presentation analysing the legal problems with using copyright as a means of assisting news publishers.

Legal difficulties with copyright as a means of intervening

There are legal problems in on least three levels with using copyright as a means of assisting news producers. The first derives from EU law, the second from international copyright law, and the third from freedom of speech law.

Difficulties arising from EU law

In broad-brush terms, the EU-related problems derive from the partial harmonisation of copyright law undertaken by, amongst other things, the Information Society Directive 2001 (the InfoSoc Directive). This harmonises the right of reproduction, the right of distribution and communication to the public. This is generally so in relation to authorial works, phonograms, broadcasting organisations and fixations of films. The harmonisation of these rights by the InfoSoc Directive means that the EU imposes on member states also an upper limit of what can be protected, as well as a lower limit.

In respect of the reproduction right, art 2 of InfoSoc requires member states’ copyright rules to restrict reproduction of any part of a work. ‘Any part’ means, after Infopaq, a part that is original – namely the author’s own intellectual creation, namely in an expressive work, the part that reflects the creative choices of an author. In some cases, a broad brush copyright law to protect the news industry would protect more than these parts. It would, in other words, protect material that is not original in these terms. Evidence in support of this can be found in the UK’s Meltwater case, which indicated that an aggregator would require a licence because some material might be original in these terms. But, therefore, some material would also not be original. A per se rule that protects all news material would therefore be contrary to EU law, as it would be protecting some material for which protection is not allowed at the EU.

In respect of the communication to the public right, there are also difficulties. The CJEU has said that communication to the public by hyperlink is infringing if the material to which the link is made is thereby communicated to a new public. So if material is legitimately on the public web, hyperlinking to it will not be an act that breaches copyright. Clearly it would be different if a link was made to material behind a firewall, as this material would not have been made available to the public. But, because of the upper limit of protection imposed by the InfoSoc directive, a per se rule that made all linking to news material potentially infringing would – as was the case in respect of reproduction – be contrary to EU law.

These are not insurmountable legal hurdles to a copyright law, as EU law might be changed. But the way the law is currently does pose difficulties to laws like the Spanish and German laws (the Spanish law is described below. The German law referred to is the German Copyright Act (1965, as amended), art 87f (1).).

A further difficulty relates to the EU regime that regulates exceptions – actions that can be undertaken with respect to copyright protected work without incurring legal liability. These are contained in an exhaustive list in the directive – in article 5. One of these is a quotation exception. Quotation is permitted, according to this provision, as long as certain conditions are met: quotation must be proportionate, in accordance with fair practice, attributed, and to the purpose for which the quotation is made. Importantly, however, the provision does not mandate that compensation be provided. Now, if the provision in question – art 5(3) (d) – is seen as an all or nothing provision, then a law like the Spanish law which requires compensation, may well be outside what is permitted by the EU regime. There are quite a number of assumptions in that argument, however.

Difficulties arising from the Berne Convention

In respect of international copyright law, problems arise because of the provisions of the Berne Convention. Under the Convention, there is a mandatory exception to copyright – the quotation exception. It’s obligatory for contracting parties to the Convention to have a quotation exception or limitation. Quotation, under such provisions, should be in accordance with fair practice, proportionate and attributed. The Convention says this includes press summaries, and this has been taken to mean that it must be possible, without infringing copyright, to publish newspaper stories alongside each other.

Given that the Berne Convention says that this exception must exist, acts that curtail it – such as a Spanish type law that mandates compensation be paid for quotation – may well be contrary to article 10. Unless, perhaps, compensation is restricted to situations where quotation is not pursuant to fair practice.

The three-step test may also apply. If it did, this might ease this difficulty. This test is in art 9 of the Convention, and provides that Members of the Union or Contracting Parties may permit reproduction in specific cases, where reproduction does not conflict with normal exploitation of the work, and does not unreasonably prejudice the legitimate interests of the holder. It is also in art 13 of TRIPS. But there is a question about how the three-step test relates to other provisions.

If the three-step test applies, it might provide a rationale for the imposition of a compensation element to quotation. This is because such a step would prevent the unremunerated use of quotation where that use conflicts with normal exploitation of a work.

However, whether the three-step test is of assistance here is not clear. It is likely to be of assistance if, as some argue, the three step test is supplementary to the requirements that quotation be in accordance with fair practice, proportionality and attribution. However, others argue that the three-step test is not supplementary to these conditions.

One way to argue this point is on the ground that TRIPS says that contracting parties must comply with art 1 to 21 of the Convention, and that obligation is prior to any subsequent article of TRIPS. Art 13 of TRIPS therefore appears to be subsequent to the obligation to comply with the Berne Convention. If this is so, article 13 can be argued not to add extra conditions to those found in the Convention, in so far as it is inconsistent with them. It should not, therefore, be seen as imposing a condition that quotation should be only permitted insofar as it does not conflict with the normal commercial exploitation of a work.

For completeness, there is a middle way: this is to suggest that the conditions of fair practice in art 10 of the Convention reflects the two relevant elements of the three step test.

Potential resolutions

Potential ways around these difficulties were discussed. It might be possible to create an ancillary right not within copyright. Such a right would not be subject to the Berne Convention, nor the restrictions contained in the InfoSoc Directive. It is clearly possible for such rights to exist, as manifest by the vitality of rights such as the UK’s typographical arrangement right.

Some felt that re-visiting what constitutes ‘fair practice’ would be of assistance, as this threads through all the legislation. The law, it was argued, or at least accepted behaviour, has moved away from what is intuitively acceptable as ‘fair’. Others considered that this would not be of immediate help to news publishers, as litigating this question would be expensive, and the result uncertain.

It was suggested that some other current copyright and related laws might avail news publishers. The laws regulating use of technological protection measures, for example, might help.

The database right

One law related to copyright that was discussed in a little depth was the database right. It was observed that news publishers had an investment to protect, and acted as quasi-authors in preparing a bundle of content. They are, in this way, similar to broadcasters and phonogram producers. This might lead to the possibility of using the sui generis database right as a cause of action.

It was argued that there were advantages in using this right. First, it would avoid the difficulties involved in using copyright, noted above. These do not apply the database right. Moreover, the database right went through a stage of being narrowly interpreted by the CJEU, but is now being interpreted more expansively. Second, the database right appears to be a more appropriate tool, as it is a protection of investment, which is what publishers seek to protect. Third, it was also argued to be a more appropriate tool, as it protects the bundle of content that historically has been the essential nature of a newspaper. Fourth, it was argued that it would not inhibit new entrants to the market. Fifth, the basis of the database right is unfair extraction, and that seems to be the activity which is inappropriate here.

It was also observed that there are problems with using the database right. One is that it does not reflect the creative collective endeavour of putting together a newspaper (or the like). Second, is that it does not seek to reinforce the connection between popularity and financial success, which some felt was central to solving this problem – rather than seeking legal intervention. Third, that there are few exceptions to the database right, and this may mean it infringes unduly on free speech concerns. (Against this last point, some thought it arguable that there are exceptions to the database right.) Fourth, some publishers actively seek out aggregation and social media dissemination, and this might inhibit them.

General points about legal intervention

Some argued that law is a blunt and often inappropriate tool, but other attempts to resolve difficulties – such as using technology – had failed, and it was appropriate to try to use it. Others observed that it is appropriate to turn to the law, as publishers have tried but failed in their attempts to resolve the difficulties with other means.

It was argued that other means might also be used, such as technological measures. One that was discussed was the robots.txt convention, which prevents indexing of news material by search engines. This could be of assistance to publishers seeking to restrain re-publication of news via search.

However, others felt that conventions such as robots.txt were an insufficient remedy. Robots.txt was said to be on or off - either permitting or restricting indexing. There was a view that it would be more useful if a variegated control was developed, permitting some use for some purposes, but not others.

Some countered this assertion, by saying that technology does already provide some facility for doing this. Others observed that tobots.txt and the like were likely to be ineffective as a remedy, as experience shows that some web crawlers (who couldn’t be identified, but were not Google’s) ignored the protocol.

Competition law

Many felt that a problem for news publishers was the inequality of the powers of the parties involved in negotiations about the distribution of news content. Google and social media companies, it was said, hold disproportionate power, becuase they control access to the attention of the public. They are also perceived as providing a benefit to the public in indexing the content of the Internet. This, it was argued, is relevant to a competition law evaluation, but was felt to eclipse the interests of content producers.

Conversely, competition law weakens the negotiating position of news publishers, as it restricts news publishers from acting collectively to seek to withhold their content from search and social media organisations.

And even if this were not the case, the ready availability of ‘free to air’ news, from the BBC, foreign news organisations and the public, means withholding news is not a realistic prospect.

The discussion returned to the question of free riding. Some felt that Google and social media companies do provide benefits in return for their use of publishers’ content, because they drive traffic to publishers’ sites. Evidence for this was said to be the experience of the Spanish amendment. This resulted in Google withdrawing Google News Spain. When this happened, research by Nera (accessed 6 Mary 2016, Spanish.) showed that traffic to publishers’ sites declined. It fell off more for the smaller sites, than incumbents: larger players lost 2 to 5% of traffic, while smaller sites lost 25%.