Review of Professor Thomas Höppner’s Lecture In Support of Neighbouring Right for Press Publishers

Tuesday, 14 March 2017

The 1709 Blog

This 1709 intern was delighted to attend a lecture given by Professor Doctor Thomas Höppner at the University of Glasgow on February 14th of this year. The lecture was entitled “EU copyright reform: the case for a related right for press publishers and was part of a series, ‘Copyright and Brexit’, hosted by CREATe. The talk given by Professor Höppner argued in support of the introduction of the press publishers’ right in Article 11(1)cogent duet of The Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market. Professor Höppner participated in the EPP Group’s panel hearing on publishers’ rights on 11 January 2017. This writer previously discussed the topic of the proposed neighbouring right for press publishers here, and further information can be found here, here and here. My summary of Professor Höppner’s cogent presentation is as follows.

The purpose of the proposed neighbouring right for press publishers is to bring a level-playing field to both press publishers and news aggregators regarding the business models that press publishers have embraced. Specifically, the business model embraced by press publishers is to generate attractive content, thereby attracting consumers to their sites, which in turn attract advertising/subscriber revenue. In the news industry, the creation of attractive content entails, inter alia, the employment of journalists on a global scale (often in dangerous locations) and editing content to journalistic standards – activities which require considerable investment.

The business model employed by content aggregators, in contrast, is aimed at using the content of 3rd party press publications to attract users to its site, thereby generating advertising revenue. By visiting news aggregators, consumers can peruse content generated by a myriad press publishers on one webpage. Essentially, aggregators are competing directly with press publishers for advertising revenue from the same content, yet aggregators must not go to the expense of generating that content. Professor Höppner argues that this is a classic case of a market failure that must be addressed.

Copying content is always cheaper than generating content. Professor Höppner argues that there are probably a greater number of start-ups which utilise an aggregation business model than start-ups engaged in the production of news – why bother investing millions in a global network of journalists, editorially review their work and build a trustworthy news brand if you can easily aggregate the news content generated by others?

The Commission’s impact assessment found that 47% of users of news aggregators never click through on to the site of the news publisher – they simply glean all the information they need from the news aggregator’s site. This figure suggests that advertising revenue is being lost by news publishers to news aggregators for the content that news publishers went to the trouble and expense to create.

The rise of “fake news” also highlights the importance of the unique editorial responsibility of press publishers. The new right of press publishers, Professor Höppner argues, reflects the importance of the unique editorial responsibility of press publishers. It is the value of the editing undertaken by trustworthy news brands, providing genuine content and analysis, which forms the basis of this new right.

The legal framework must ensure that there is an economic incentive for press publishers to continue to invest in, generate and moderate high quality news content. The traditional legal framework to incentivise creators of cultural products has been copyright, and this new neighbouring right resonates directly with the other neighbouring rights found in the InfoSoc Directive (the rights bestowed upon phonograph producers, the producers of films and broadcasting organisations).

Professor Höppner also addressed some misconceptions around the proposed new right:

In some way, this right could harm journalists.

There exists the misconception that journalists would be harmed by this new right. On the contrary, it is important to keep in mind that journalists want to be paid for their work. It is true that some journalists may gain greater web exposure through news aggregators.  Yet it may be reasonable to conclude that journalists would rather be paid by press publishers for content than to gain greater exposure from news aggregators (for which they receive no remuneration). Currently, news aggregators pay nothing to journalists for the use of the content generated by journalists. This proposed right is about protecting the news industry as a whole, of which journalists are at the core.

The right is too wide.

If you look at it, this is not the case: in order to attract protection, the right requires, inter alia, the fixation of a collection of literary works of a journalistic nature, in a periodical, regularly updated publication, in which there exists editorial responsibility. In this respect, the law is not any wider than for any other neighbouring rights. There, too, the fixation is what is protected, with the consequence that any section thereof, e.g. a film sequence or a news snippet, would be protected against a reproduction.

Finally, a major difficulty for press publishers in enforcing their rights in the copyright of the content they publish is in proving standing – the chain of title of copyright must be proved before a case can be brought. Press publishers almost always own the copyright in the content they publish, through the legal mechanisms of assignation of copyright through employment contracts, or (in jurisdictions where assignation is not possible) through exclusive licensing. Yet proving the chain of title can be a cumbersome legal process. With the new press publishers’ right, this significant difficulty is vanished, thereby strengthening the position of news publishers and making enforcement less problematic.

The debate surrounding the proposed new press publishers’ right is certainly a heated one, which is likely to continue in the coming months. Many thanks go to Professor Höppner for his cogent argument in favour of the proposed press publishers’ right. This writer is waiting with curiosity to observe how the debate surrounding the press publisher right unfolds in the coming months.

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