SWD IA on the EU copyright modernization – impacts of third option for press publishers

As Option 2 plus introduction, in EU law, of the possibility for MS to provide that publishers may claim compensation for uses under an exception

This option would have a positive impact on all publishers, in particular book and scientific publishers but also on press publishers regarding their ability to receive compensation for uses under exceptions (notably the reprography exception). For other publishers, in particular book and scientific publishers, Option 3 is highly significant, as their publications are often used under an exception such as private copying.

Publishers in 18 MS have received (part of the) compensation for uses of their publications under an exception. The basis and the details of the respective arrangements in place differ, but in many MS there are joint authors/publishers collecting societies in place that are in charge of negotiating tariffs and collecting the compensation, e.g. in the form of a levy, and distributing it to authors and publishers. In their replies to the public consultation these collecting societies have expressed the concern that their very existence could be put in danger by the current situation of legal uncertainty.

Option 3 leaves it to MS to decide if they want to put publishers in a position to receive compensation for uses of publications under an exception on condition that the original rightholders benefit in an adequate manner, directly or indirectly, from the compensation due. It also remains neutral regarding the issue of levies as such and aims merely at giving MS discretion regarding the recipients of compensation for uses under an exception or limitation under certain conditions.

Thus, depending on the concrete legislative measures passed by the MS, the existing schemes providing for a split of the compensation between authors and publishers as well as the established practise of joint collecting societies could be maintained, so long as it is ensured that authors benefit adequately from the compensation due.

The impact on authors (journalists, writers, photographers) would vary across MS, depending on their choices to make use of this option and on the starting situation in the respective MS. Authors have regarded positively, in those MS where they exist, compensation schemes encompassing both authors and publishers. They have traditionally been considered as instrumental to the good functioning of collecting societies and of the print publishing market overall. Therefore the intervention under this option aiming at providing MS with the legal space to keep these systems in place is likely to ultimately benefit authors as well.

Accordingly, this option would benefit authors by enhancing transparency regarding the economic value of the compensation due for uses under an exception and the way in which they benefit from it, after transferring or licensing their rights to a publisher. Additional positive impacts on cultural diversity are expected under this option, because of the added value that it would bring to publishers across all sectors, in particular smaller book publishers.

Option 3 is the preferred option. Option 1 would not solve the problems effectively, as self-regulatory solutions alone, which depend on the willingness of the different market players to reach agreements, cannot fully address the identified problems. Both Options 2 and 3 would strengthen the bargaining position of press publishers and foster the conclusion of licences. Option 3 would have in addition positive impacts on all publishers in relation to their possibility to claim compensation for uses under an exception, without giving rise to any negative impact on other stakeholders.

All MS will have to reflect in their legislation the new related right granted to press publishers at EU level. This is not expected to directly affect the existing provisions in MS laws which are broader (e.g. protection of collective works, presumptions of transfer of rights) or have a totally different subject-matter of protection (typographical arrangements) but may require adapting national laws which have a similar subject-matter of protection to bring them fully in line with the scope of the right granted at EU level.

The complementary element introduced in Option 3 (possibility for MS to provide that publishers may claim compensation for uses under an exception) is an enabling provision that does not require MS to change their existing laws, but should they wish to do so, provides them with a clear margin of manoeuvre to allow for the sharing of compensation for exceptions between authors and publishers.