(with Christophe Geiger and Oleksandr Bulayenko) This article discusses the proposed introduction in EU law of neighbouring rights for press publishers for the digital uses of their publications. This proposal is included in the European Commission’s Draft Directive on copyright in the Digital Single Market of 14 September 2016, which forms an important part of the ongoing reform of copyright at EU level. This article highlights the challenges for the Digital Single Market associated with the establishment of an additional layer of 28 national rights and their related exceptions and limitations. By reference to the “pie theory”, it also shows how this proposal risks redistributing resources from creators to publishers. Further, this article underlines the missing causal link between the proposed reform and market efficiency justifications. In contrast, existing empirical evidence shows negative externalities for smaller publishers and users at large. This evidence — together with the enclosure of the public domain that comes from the creation of new neighbouring rights and their retroactive application — might serve as a warning of the potential negative repercussions of this proposal on plurality of sources, users’ access to information — and more generally on democratization. In conclusion, this article recommends refraining from the introduction of neighbouring rights for press publisher online because they would (i) relent — rather than promote — the creation of a Digital Single Market, (ii) be detrimental for the interests of creators, smaller market players and users, while (iii) not solving any systemic issues of the EU copyright system. This article is based on the Opinion of the Centre for International Intellectual Property Studies (CEIPI) at the University of Strasbourg on the European Commission’s copyright reform proposal, with a focus on the introduction of neighbouring rights for press publishers in EU law. It was sent to the European Commission on 2 December 2016.
This article is published in 34(2) European Intellectual Property Review 202 (2017).