A publisher’s intellectual property right Implications for freedom of expression, authors and open content policies

The proposed Copyright in the Digital Single Market Directive
(COM(2016)593) of July 2016 would introduce a EU wide new intellectual
property right for publishers of press publications, or ‘PIP’. Publishers
would have the exclusive right to authorize or prohibit any reproduction
(in whole or in part, direct or indirect) and making available to the public
of ‘press publications’, for a period of 20 years.

This study examines the justifications for the proposed new PIP, and
assesses how it would fit in the EU copyright framework. In this study,
special attention is paid to the freedom of expression dimension, for two
reasons. One is that the most important justification advanced in support
of a publisher’s right is that it promotes a sustainable quality press and media pluralism. The vital role that the press play in democratic societies
as public watchdog and forum for public debate — is a key consideration
— in the interpretation of the fundamental right to freedom of
expression as guaranteed under the European Convention on Human
Rights and the Charter of Fundamental Rights of the EU. The second
reason is that the introduction of an intellectual property right, i.e., an
exclusive right to control information flows, itself constitutes an interference
with freedom of expression. The main recommendation is that the
EU legislator should elaborate a clear assessment of what pressing social
need a PIP would serve, of the PIP’s proportionality and of alternative
solutions (other than merely the option to encourage stakeholder dialogue,
cf. the Impact Assessment). This is especially important because,
for news and other public interest information, the European Court of
Human Rights (ECtHR) upholds a strict standard of scrutiny. Any regulatory
intervention must comply with the right to freedom of expression,
as laid down in article 10 ECHR / 11 CFR.