Ancillary right for press publishers: an alternative answer to the linking conundrum?

Abstract

This article argues that the introduction of the ancillary right for press publishers at the European Union level would provide an alternative answer to the linking conundrum, not directly connected to the right of communication to the public. The solution proposed by ancillary right is an alternative since it addresses elements of the act of linking which are not directly relevant for determining whether a link counts as an act of communication to the public. Accordingly, in the context of linking ancillary right puts an emphasis on the referred publication (a press publication), its producer (a press publisher) and its partial reproduction (a snippet and a headline). While being presented as a right of press publishers, in reality the ancillary right effects might go beyond press publishing domain, touching upon all internet users. After summarizing the linking debate, the article examines the three aspects of the ancillary right: material scope, right of reproduction and personal scope of the right. The article builds on Spanish and German ancillary right provisions, the text of the European Commission proposal for the directive on copyright in the Digital Single Market, as well as responses to the European Commission’s consultation on the role of publishers in a copyright value chain.