Limits To The New Neighbouring Rights For Press Publishers And Agencies

Author:Ms Aissatou Sylla
Profession:Hogan Lovells
 
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Background

As part of its Digital Single Market strategy, the European Union adopted Copyright Directive No. 96/9/EC on 17 April 2019 (“Directive”). Amongst a series of measures introduced by the Directive, Article 15 creates a neighbouring right for press publishers. The stated aims, among others, are to help press publishers recoup their investment when their content is made available via news aggregators or media monitoring services and to provide a harmonised legal protection for press publications in respect of online uses by information society providers.

Article 15 provides that Member States shall give publishers of press publications the exclusive right to authorise information society service providers to reproduce, communicate to the public or make available their work online to the public.

The Directive had been highly anticipated by the French lawmakers who implemented Article 15 three months after the adoption of the Directive by passing the 24 July 2019 Act No. 2019-775 Creating a Neighbouring Right for the Benefit of Press Agencies and Press Editors (“Implementation Act” or “Act”). As the name of the Act indicates, the new neighbouring right extends to press agencies. In addition, the Act expressly gives publishers, agencies and authors, such as journalists, the right to be remunerated by publishers.

These rights come with the following limits and exceptions:

Territorial scope

The rights only apply to publishers and agencies established within the European Union.

Duration

These new neighbouring rights are effective for two years from 1 January of the calendar year following the first publication of the press content. Beyond 2 years, it can be argued that the newsworthiness of the shared content is questionable.

Hyperlinks, isolated words and very short extracts

Both the Directive and the Implementation Act have provided for an exception allowing the use of hyperlinks and of isolated words or very short extracts of a press publication.

Hyperlinks - The rights do not apply to hyperlinks. This means that a news aggregator or a media monitoring service provider may make available to the public a hyperlink to a publisher's content without seeking authorisation and without having to remunerate the publisher or the agency. Isolated words and very short extracts - The Implementation Act offers no quantitative indication which could help identify what is meant byvery short extracts. However, it specifies that the exception...

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