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The EU’s Press Publisher’s Right is too broad. What can be done about it?

Danbury, R. ORCID: 0000-0002-0427-2260 (2021). The EU’s Press Publisher’s Right is too broad. What can be done about it?. European Intellectual Property Review,

Abstract

Commercial institutional news publishers have for many years in many countries sought copyright protection for news. To some extent they’ve been successful. Article 15 of the EU’s Copyright in the Digital Single Market Directive, the Press Publisher’s Right, is a recent example. But there are policy considerations that militate against such moves, notably the doctrine that copyright doesn’t protect facts. The Press Publishers’ Right contains provisions to try and deal with policy concerns such as these. However, they are insufficient. One reason, discussed here, is that the drafting of the subject matter provisions in article 15 are too broad.

This article suggests one way of mitigating this would be to interpret the subject matter provisions of art 2(4) and 15 restrictively. This might be done in two ways. First, such an interpretation may by required when considering recital 54, which expresses the rationales for the provision. Recital 54 explains that the desired aims of this part of the Directive are ‘quality journalism and citizens’ access to information’, and ‘public debate and the proper functioning of a democratic society’. A free and pluralist press is ‘essential’ and a ‘fundamental contribution’ to these desired ends. But, as the ends are prior to the means, the Press Publishers’ Right should be interpreted in such a way that the desired ends are achieved, rather than in a way that protects the means by which such ends are achieved. Such an interpretation may also be possible and required by virtue of the freedom of speech and information guarantees provided by article 11 of the Charter of Fundamental Rights of the European Union and article 10 of the European Convention on Human Rights.

Publication Type: Article
Additional Information: This is a pre-copyedited, author-produced version of an article accepted for publication in European Intellectual Property Review following peer review. The definitive published version Danbury, R. (2021). The EU’s Press Publisher’s Right is too broad. What can be done about it?. European Intellectual Property Review, is available online on Westlaw UK.
Subjects: J Political Science > JN Political institutions (Europe)
P Language and Literature > PN Literature (General)
Departments: School of Arts & Social Sciences > Journalism
Date available in CRO: 08 Sep 2021 08:32
Date deposited: 8 September 2021
Date of acceptance: 31 August 2021
URI: https://openaccess.city.ac.uk/id/eprint/26722
[img] Text - Accepted Version
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