A publisher's intellectual property right: Implications for freedom of expression, authors and open content policies

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.