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ABSTRACT
This article investigates and compares the changes to both the Audiovisual Media Services Directive and the Copyright Directive, through which European Union policymakers have sought to protect European content producers, mainly in the face of competition from US-based platforms. Contributing to debates about platform and content regulation, we examine the approaches taken with these two legislative changes and assess the potential for success of the most recent efforts. Ultimately, we argue that if revised as proposed the Copyright Directive runs the risk of further adding to the imbalance of power between press publishers and online platforms, and that the level playing field approach taken in the AVSMD revision is more likely to be at least somewhat effective in addressing that imbalance.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Dr Sally Broughton Micova is a Lecturer in Communications, Policy and Politics at the University of East Anglia School of Politics, Philosophy, Language and Communication.
Felix Hempel is a PhD candidate at the University of East Anglia Law School.
Dr Sabine Jacques is a Senior Lecturer in IP/IT/Media Law at the University of East Anglia Law School.
Notes
1 European Commission, ‘Communication from the commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A Digital Single Market Strategy for Europe’ COM (2015) 192 final.
2 The Trialogue is the process in which the versions amended by the European Parliament and the Council of the European Union are agreed with facilitation by the Commission. The talks resulted in a final agreement on 20 February 2019, which at the time of writing still had to be adopted officially in the Parliament. See Council of the European Union ‘Interinstitutional File: 2016/0280(COD) of 20 February 2019 Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market - Outcome of proceedings’ (available at https://data.consilium.europa.eu/doc/document/ST-6637-2019-INIT/en/pdf), which would update Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] L 167/10 (hereafter: ‘Directive 2001/29/EC’).
3 According to Article 6 of the Treaty for the European Union (TFEU), the Union can ‘support, coordinate or supplement the actions of the Member States’ in relation to industry and culture, among other things. This is as opposed to other areas in which there is ‘shared competence’ between the EU and the member states (Article 4), or the EU has ‘exclusive competence’ (Article 3).
4 Jackie Harrison and Lorna Woods, European Broadcasting Law and Policy (CUP 2007).
5 Alison Harcourt, The European Union and the Regulation of Media Markets (MUP 2006) presents a detailed account of how this approach came to be and was manifest.
6 The quotas for European works and independent production that were carried over into the AVMSD, have been described as protectionist industrial policies. See Jackie Harrison and Lorna Woods, ‘Television Quotas: Protecting European Culture?’ (2001) 12(1) Entertainment Law Review 5; Petros Iosifidis, Jeanette Steemers and Mark Wheeler, European Television Industries (British Film Institute 2005); Sally Broughton Micova, ‘Content Quotas: What and Whom are the Protecting’ in Karen Donders, Caroline Pauwels and Jan Loisen (eds), Private Television in Europe: Content, Markets and Policy (Palgrave 2013).
7 For example, Jean-Claude Burgelman and Caroline Pauwels, ‘Audiovisual Policy and Cultural Identity in Small European States: The Challenges of a Unified Market’ (1992) 14(2) Media, Culture and Society 169; Harcourt (n 5).
8 One interesting critique of the AVMSD that did connect it to the Copyright issue was that its ‘good intentions’ toward European content production were doomed to fail because of the Copyright Directive, see Fiona Macmillan, ‘Are You Sure/That We Are Awake?: European Media Policy and Copyright’ in Karen Donders, Caroline Pauwels and Jan Loisen (eds), The Palgrave Handbook of European Media Policy (Palgrave Macmillan 2014) 382.
9 Rachael Craufurd-Smith, ‘Determining Regulatory Competence for Audiovisual Media Services in the European Union’ (2011) 3(2) Journal of Media Law 263; Michael Wagner, ‘Revisiting the Country-of-Origin Principle in the AVMS Directive’ (2014) 6(2) Journal of Media Law 286; Indrek Ibrus and Ulrike Rohn, ‘Sharing Killed the AVMSD Star: The Impossibility of European Audiovisual Media Regulation in the Era of the Sharing Economy’ (2016) 5(2) Internet Policy Review 1.
10 See for example: Adolf Dietz, ‘The Protection of Intellectual Property in the Information Age – The Draft EU Copyright Directive of November 1997’ (1998) 4 IPQ 335; Thomas C Vinje, ‘Harmonising Intellectual Property Laws in the European Union: Past, Present and Future’ (1995) 17(8) EIPR 361.
11 See for example: André Lucas, Pierre Sirinelli and Alexandra Bensamoun, Les exceptions au droit d'auteur: état des lieux et perspectives dans l'Union européenne (Dalloz 2012); Robert Burrell and Allison Coleman, Copyright Exceptions: The Digital Impact (CUP 2005); Mireille Buydens and Séverine Dussollier, ‘Les exceptions au droit d’auteur: évolutions dangereuses’ [2001] CCE 10.
12 See for example: Charles-Henry Massa and Alain Strowel, ‘The Scope of the Proposed IP Enforcement Directive: Torn Between the Desire to Harmonise Remedies and the Need to Combat Piracy’ (2004) 26(6) EIPR 244; Stefan Kulk and Frederik Zuiderveen Borgesius, ‘Filtering for Copyright Enforcement in Europe After the Sabam Cases’ (2012) 34 (11) EIPR 791.
13 See for example: Paul Joseph, ‘Copyright Reform: End of a Dream?’ (2015) 10(2) JIPLP 73; Sophie Stalla-Bourdillon, Eleonora Rosati, Karmen Turk, Christina Angelopoulos, Aleksandra Kuczerawy, Miquel Peguera and Martin Husovec, ‘An Academic Perspective on the Copyright Reform’ (2017) 33(1) CLS Rev 3; Benjamin Farrand, ‘“Towards a Modern, More European Copyright Framework”, or, How to Rebrand the Same Old Approach?’ (2019) 41(2) EIPR 65.
14 In favour: Thomas Höppner, ‘EU Copyright Reform: The Case for a Publisher’s Right’ [2018] IPQ 1 Against: Martin Kretschmer et al, ‘The European Commission’s Public Consultation on the Role of Publishers in the Copyright Value Chain: A Response by the European Copyright Society’ (2016) 38(10) EIPR 591; Eleonora Rosati, ‘Neighbouring Rights for Publishers: Are National and (Possible EU) Initiatives Lawful?’(2016) 47(5) 569; Lionel Bently et al, ‘Response to Article 11 of the Proposal for a Directive on Copyright in the Digital Single Market, Entitled “Protection of Press Publications Concerning Digital Uses” on Behalf of Thirty Seven Professors and Leading Scholars of Intellectual Property, Information Law and Digital Economy’ (Centre for Intellectual Property and Information Law, 2016) <www.cipil.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www.cipil.law.cam.ac.uk/documents/ipomodernisingipprofresponsepresspublishers.pdf> All websites last accessed 30 January 2019; Mireille van Eechoud, ‘A Publisher’s Intellectual Property Right: Implications for Freedom of Expression, Author and Open Content Policies’(Openfoum Europe, 2017) 18–24 <www.openforumeurope.org/wp-content/uploads/2017/01/OFE-Academic-Paper-Implications-of-publishers-right_FINAL.pdf>; Giancarlo Frosio, Christophe Geiger and Oleksandr Bulayenko, ‘The Introduction of a Neighbouring Right for Press Publisher at EU Level: The Unneeded (and unwanted) Reform’(2017) 39(4) EIPR 208; Taina Pihlajarinne and Juha Vesala, ‘Proposed Right of Press Publishers: A Workable Solution?’(2018) 13(3) Journal of Intellectual Property Law & Practice 220.
15 See CREATe, ‘Copyright Reform: Open Letter from European Research Centres’ (2017) <www.create.ac.uk/wp-content/uploads/2017/02/OpenLetter_EU_Copyright_Reform_24_02_2017.pdf>; JRC, ‘Online News Aggregation and Neighbouring Rights for News Publishers’ (2017) <www.asktheeu.org/en/request/4776/response/15356/attach/6/Doc1.pdf>; European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, ‘Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive’ (JURI Committee, 2017) <www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU(2017)596810_EN.pdf>.
16 By this term, we mean press publishers (newspapers and magazines), linear audiovisual media services (television), and radio.
17 See various responses to the European Commission’s consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative environment well as the European Commission’s consultation of the role of publishers in the copyright value chain and on the ‘panorama exception’, for example: European Publishers Council (EPC), ‘Public Consultation on the role of Publishers in the Copyright Value Chain and on the ‘Panorama Exception’ (European Commission Report and Studies, 2016) <http://ec.europa.eu/information_society/newsroom/image/document/2017-38/organisations_registered_in_the_transparency_register_A05B8047-BE72-2BA6-838F586F7C0D4A85_47162.zip>; The European association of television and radio sales houses (egta), ‘Answer to the Public Consultation on Online Platforms, Cloud & Data, Liability of Intermediaries, Collaborative Economy’ (European Commission Report and Studies, 2016) <http://ec.europa.eu/information_society/newsroom/image/document/2016-7/egta_13918.pdf>.
18 Tom Evens, ‘Media Economics and Transformation in a Digital Europe’ in Leen d’Haenens et al (eds), Comparative Media Policy, Regulation and Governance in Europe. Unpacking the Policy Cycle (Intellect 2018) 41.
19 For an overview of those scholars, see: Jiyoung Cha and Sylvia M Chan-Olmsted, ‘Substitutability Between Online Video Platforms and Television’ (2012) 89(2) Journalism & Mass Communication Quarterly 261.
20 European Audiovisual Observatory, ‘Commercial Communications in the AVMSD Revision’ (Council of Europe, 2017) 5 <https://rm.coe.int/168078348c>.
21 However, audience falls do not always translate into declines in revenue, as audience is only one of three key variables (reach, volume, price) feeding into advertising revenue.
22 Mario La Torre, The Economics of the Audiovisual Industry: Financing TV, Film and Web (Palgrave 2014) 46.
23 In the literature, this has been put forward as one of the main weaknesses of television advertising. See for example: Chris Hackley, Advertising and Promotion (Sage 2017) 192, 193. See also Dirk Bergemann and Alessandro Bonatti, ‘Targeting in Advertising Markets: Implications for Offline Versus Online Media’ (2011) 42(3) Journal of Economics 417, 418 and Wenjuan Ma et al, ‘Online Advertising’ in Robin Mansell et al (eds), The International Encyclopedia of Digital Communication and Society (John Wiley & Sons 2015) 3. Nevertheless, there is qualitative research available that gives evidence to the effects of television advertising more broadly. See for example: Thinkbox, ‘Profit Ability: The Business Case for Advertising Research Charts’ (November 2017) <www.thinkbox.tv/Research/Nickable-Charts/Thinkbox-research-charts/Profit-Ability-the-business-case-for-advertising?download=1>.
24 James Ratliff and Daniel Rubinfeld, ‘Online Advertising: Defining Relevant Markets’ (2010) 6(3) Journal of Competition Law and Economics 679.
25 In 2017, Broadcast TV made up 71% of people’s total TV and audiovisual daily viewing; the remaining 29% was non-broadcast content such as YouTube and subscription on-demand services such as Netflix and Amazon Prime Video.
26 In the UK television viewing is declining significantly. European Commission, ‘Proposal for a Directive of the European Parliament and of the Council Amending Directive 2010/13/EU on the Coordination of Certain Provisions Laid Down by Law, Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services (Audiovisual Media Services Directive) in View of Changing Market Realities’ (Eur-Lex, 25 May 2016) Recital 1 <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016PC0287&from=EN> (hereafter ‘AVMSD Proposal’). In France and Germany slightly less drastically, where it dropped by 4 minutes a day between 2011 and 2016. European Audiovisual Observatory, ‘Yearbook 2017/2018 – Key Trends’ (Council of Europe, 2018) 44 <https://rm.coe.int/yearbook-keytrends-2017-2018-en/16807b567e> and Kommission zur Ermittlung der Konzentration im Medienbereich, ‘Fernsehnutzung’ (KEK, 2018) <www.kek-online.de/medienkonzentration/mediennutzung/fernsehnutzung/>.
27 For UK data see Ofcom, ‘Media Nations: UK’ (18 July 2018) 4, 20 <www.ofcom.org.uk/__data/assets/pdf_file/0014/116006/media-nations-2018-uk.pdf> and for the German example see Kommission zur Ermittlung der Konzentration im Medienbereich, ‘Internetnutzung’ (KEK, 2018) <www.kek-online.de/medienkonzentration/mediennutzung/internetnutzung/>.
28 David Abecassis et al, ‘Convergence of TV and Digital Platforms: Increased Innovation and Competition for Advertisers Budgets’ (SSRN, 2017) 9 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3092181>.
29 Christian Grece, ‘The Online Advertising Market in the EU – Update 2015 and Focus on Programmatic Advertising’ (European Audiovisual Observatory, 2016) 40 <https://ec.europa.eu/newsroom/document.cfm?doc_id=43866>.
30 ibid 4.
31 European Audiovisual Observatory, ‘Yearbook 2017/2018 – Key Trends’ (n 26) 48.
32 Christian Grece, ‘The Online Advertising Market in the EU – Update 2017’ (European Audiovisual Observatory, 2016) 7 <https://rm.coe.int/the-eu-online-advertising-market-update-2017/168078f2b3>.
33 ibid.
34 Joylon Baker et al, ‘Television’s Business Model – Fit for a Digital World’ (Deloitte, 2014) 5 <www2.deloitte.com/content/dam/Deloitte/au/Documents/technology-media-telecommunications/deloitte-au-tmt-televisions-business-model-031014.pdf>.
35 See Christian Grece et al, ‘The Development of the European Market for On-demand Audiovisual Services’ (European Audiovisual Observatory, 2015) <http://ec.europa.eu/newsroom/dae/document.cfm?action=display&doc_id=9273>.
36 ibid 4.
37 Ofcom, ‘Media Nations UK’ (n 27) 15.
38 According to Ofcom, ‘Communications Market Report 2018’ (Ofcom, 2018) 34 <www.ofcom.org.uk/__data/assets/pdf_file/0022/117256/CMR-2018-narrative-report.pdf> spending by BBC ITV, Channel 4 and Channel 5 on new UK-made TV programmes fell to a 20-year low in 2017. And there were there were significant drops in investment in original programmes by broadcasters in Italy (−16%), Spain (−25%), Ireland (−17%) and Portugal (−26%) during the period 2009–2013, see Deirdre Kevin, ‘Investments in Original Content by Audiovisual Services’ (European Audiovisual Observatory, 2015) 11 <https://rm.coe.int/16807835ca>.
39 In 2013, the main TV groups in 15 countries invested EUR 15.6 billion (i.e. 24% of their total revenues) in these original works. In contrast, VOD providers invested EUR 10 million (i.e. less than 1% of their total revenues. For further information see: Kevin (n 38).
40 European Audiovisual Observatory, ‘Yearbook 2017/2018 – Key Trends’ (n 26) 64.
41 Elizabeth Bird, ‘The Future of Journalism in the Digital Environment’ (2009) 10(3) Journalism 293.
42 Ofcom, ‘Communications Market Report’ (n 38) 45.
43 European Audiovisual Observatory, ‘Yearbook 2017/2018 – Key Trends’ (n 26) 48. For specific data from France seeConseil Superieur De L’Audiovisuel, ‘Media et Publicite en ligne’ (European Platform of Regulatory Authorities, July 2018) 3 <www.csa.fr/content/download/252403/690290/version/7/file/CSA_Etude%20Médias%20et%20Publicités.pdf> and for the UK see Mediatique, ‘Department for Digital, Culture, Media & Sport – Overview of Recent Dynamics in the UK Press Market’ (DCMS, 2018) 43 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/720400/180621_Mediatique_-_Overview_of_recent_dynamics_in_the_UK_press_market_-_Report_for_DCMS.pdf>.
44 ibid.
45 Mediatique (n 43) 37. At the aggregate level, one print reader is worth approximately eight digital users, see Deloitte, ‘UK News Media: An Engine of Original News Content and Democracy’ (News Media UK, 2016) <www.newsmediauk.org/write/MediaUploads/In%20the%20Spotlight/NMA%20Economic%20Report/Final_Report_News_Media_Economic_Impact_Study.pdf>.
46 European Audiovisual Observatory, ‘Commercial Communications in the AVMSD Revision’ (n 20) 5.
47 For an overview of these issues including examples see: Gabriele Siegert, ‘From “the End of Advertising As We Know It” to “Beyond Content”? Changes in Advertising and the Impact on Journalistic Media’ in Heinz-Werner Nienstedt et al (eds), Journalism and Media Convergence (de Gruyter 2013) 34.
48 For further information on the sources of news consumption, see for example: Ofcom, ‘News Consumption in the UK: 2018’ (2018) <www.ofcom.org.uk/__data/assets/pdf_file/0024/116529/news-consumption-2018.pdf>.
49 Nic Newman and others, Reuters Institute Digital News Report 2017 (Reuters Institute for the Study of Journalism 2017) 10.
50 ibid. Romania 69% and Greece 62%. The UK and Germany had the lowest figures for the use of Facebook for news.
51 Case C-155/73 Sacchi [1974] ECR 409.
52 For full discussion of implications of this case see Eric Barendt and Leslie Hitchens, Media Law: Cases and Materials (Pearsons Education Limited 2001) 168.
53 For example, even though Austria did not end its PSB monopoly in television until the adoption of a law on commercial television in 2001, foreign channels, particularly ones from Germany already had captured significant audiences, see Thomas Steinmaurer, ‘Diversity Through Delay?: The Austrian Case’ (2009) 71 (1–2) International Communication Gazette 77.
54 See discussion in Harrison and Woods (n 4); Andrea Esser, ‘Trends in Programming: Commericalization, Transnationalization, Convergence’ in Alec Charles (ed), Media in the Enlarged Europe: Politics, Policy and Industry (Intellect 2009) 23; Jeremy Tunstall and David Machin, The Anglo-American Media Connection (OUP 1999).
55 David Hutchinson, ‘The European Community and Audio-visual Culture’ [1993] Canadian Journal of Communications 437.
56 Harrison and Woods (n 6); for more on quotas as economic or commercial protectionism see also: Harrison and Woods (n 4) and Lesley Hitchens, Broadcasting Pluralism and Diversity (Hart Publishing 2006).
57 This 10% could be out of production budgets rather than broadcast time.
58 Where the European quota is higher than domestic ones, they may further help ensure national language(s) are on air and they may contribute to culturally relevant production in states in which regulators have further defined qualifying content. Broughton Micova (n 6).
59 Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [2007] L332/27, art 9 (hereafter: ‘AVMSD 2007’).
60 TFEU Article 107(3)(c), formerly of Article 87 of the European Community Treaty.
61 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [1997] OJ C 340.
62 European Commission, ‘Communication from the Commission on the Application of State Aid Rules to Public Service Broadcasting’ [2001] OJ C 320/04); European Commission, ‘Communication from the Commission on the Application of State Aid Rules to Public Service Broadcasting’ [2009] OJ C 257/01.
63 For example, see European Commission, ‘Decision of 28 October 2009 Concerning State Funding for Austrian Public Broadcaster’ [2009] E2/2008, which was decided shortly after the 2009 Communication place extensive requirements on Austria to further define and limit the remit of its ORF, with specific conditions on its activities related to sports coverage and online services and required a revision of supervision and additional rules on market behaviour. In a later example, it required Belgian authorities to amend the regulatory framework for RTBF to install a clear distinction between its PSB and commercial activities and ex ante tests for new services. A more extensive discussion of Commission decision before and after the 2009 Communication can be found in Karan Donders, ‘State Aid to Public Service Media’ (2015) 14(1) European State Aid Law Quarterly 68.
64 European Commission, ‘Aides financières automatiques à la production et à la préparation des oeuvres cinématographiques de longue durée’ [2017] SA.48699, which continued support in cases European Commission, ‘Extension of French Film Support Schemes’ [2011] SA.33370 (for the audiovisual support scheme for period 2014–2017); European Commission, ‘Aides financières automatiques à la production et à la préparation des œuvres audiovisuelles – documentaire de création et fiction’ [2017] SA.48907 (for documentaries); European Commission, ‘Régimes d’aide au cinéma et à l’audiovisuel’ [2006] NN84/2004.
65 European Commission, ‘Scheme for the Production and Broadcasting of Danish TV Drama and TV Documentary Programmes (Prolongation of State aid N360/2007, N599/2009 and SA.32479)’ [2013] SA.36761, which repeated the support given also in cases N360/2007, N599/2009, SA.32479 (2011) for the Danish ‘Public Service Pool’ for the production of TV drama and documentaries for broadcast by non-PSB services.
66 European Commission, ‘Decision on Subsidizing the Production and Broadcasting of Audiovisual and/or Radio Programmes for Radio and TV Broadcasters’ [2013] SA.35513.
67 European Commission, ‘Production and Innovation Aid to Written Media’ [2013] SA.36366.
68 For example, in cases European Commission, ‘Aid to Support the Valencian Language in the Press’ [2016] SA.45512 and European Commission, ‘Promotion of the Basque language in digital news media’ [2017] SA.47448 dealing with Valencian and Basque language publishers in Spain the commission determined the assistance did not constitute aid.
69 For example, in cases European Commission, ‘Individual State Aid to Madach-Posonium, Lilium Aurum, Petit Press’ [2013] SA.35814, SA.35815 and SA.35816, the Commission allowed the Slovak government to provide direct support to private publishers to produce newspapers, magazines and online content in Hungarian language.
70 The Greek government was allowed to make temporary grants to three private publishers specifically to improve their offerings online with the aim of sustainability. European Commission Decision, ‘Restructuring Aid to Makedoniki and Ekdotiki’ [2012] SA.33741 and European Commission Decision, ‘Restructuring Aid to Kalofolias’ [2010] N672/2008.
71 For an elaboration of the Netflix challenge with the example of the case of its servicing the French market from Luxembourg, see Wagner (n 9).
72 The provisions related to advertising are also intended to extend protections for audiences, especially minors, but this is outside the scope of this paper. The levelling of the playing field for competing services was expressed clearly in the preparatory documents, the preamble and in the statements of policy makers.
73 European Commission, ‘Green Paper: Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values’ COM (2013) 231 final, 5.
74 In the explanatory note accompanying the proposal the Commission stated it would amount to a levelling up of the rules on VOD and VSP services to accompany a relaxation of rules for linear audiovisual media services. See AVMSD Proposal (n 26) 10.
75 Gilles Fontaine and Christian Grece, ‘Origin of Films and TV Content in VOD Catalogues in the EU & Visibility of Films on VOD Services’ (EAO, 2016) <https://rm.coe.int/1680783582>, found Netflix to be the only pan-European subscription VOD provider with 19% of its film catalogue made up of European films and 32% of its TV programme catalogue made up of European works, though there was variation on these figures across the 28 countries in which it did business.
76 European Parliament, ‘European Parliament Legislative Resolution of 2 October 2018 on the Proposal for a Directive of the European Parliament and of the Council Amending Directive 2010/13/EU on the Coordination of Certain Provisions Laid Down by Law, Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services in View of Changing Market Realities (COM(2016)0287 – C8-0193/2016 – 2016/0151(COD))’ (2018) <www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2018-0364+0+DOC+XML+V0//EN>.
77 Aside from news content, public and private broadcasters invest overwhelmingly more in fiction that VOD services. Gilles Fontaine, ‘TV Fiction Production in the European Union’ (EAO, 2017) <https://rm.coe.int/tv-fiction-production-in-the-eu-2017/16807bb1c2>.
78 The European Parliament and the Council of the European Union, ‘Position of the European Parliament adopted at first reading on 2 October 2018 with a view to the adoption of Directive (EU) 2018/ … of the European Parliament and of the Council amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities’ (European Parliament, 2 October 2018) art 1 <www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2018-0364+0+DOC+XML+V0//EN> (hereafter: ‘AVMSD 2018 adopted text’).
79 ibid.
80 AVMSD Proposal (n 26).
81 AVMSD 2018 adopted text (n 78) art 9(4).
82 ibid art 4a(1).
83 ibid art 28b.
84 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L 119/1, recital 38.
85 AVMSD 2018 adopted text (n 78) art 28b gives member states jurisdiction over a VSP via its parent company, or subsidiary or is part of its group is based there.
86 Some academics link this proposal to two recent decisions by the CJEU in Case C572/13 Hewlett-Packard Belgium SPRL v Reprobel SCR [2015] EU:C:2015:750 and the Bundesgerichtshof (German Federal Court of Justice for Civil Matters) in Verlegeranteil, BGH GRUR 2016, 596. See Martin Kretschmer, Séverine Dusollier, Christiphe Geiger and P Bernt Hugenholtz, ‘The European Commission’s Public Consultation on the Role of Publishers in the Copyright Value Chain: A Response by the European Copyright Society’ (2016) 38(10) EIPR 591.
87 Article 11(1) of the compromised Copyrigtht Directive (n 2).
88 Article 11(4) of the compromised Copyright Directive (n 2).
89 compromised Copyright Directive (n 2). Further supported by European Commission, ‘Commission Staff Working Document Impact Assessment on the modernisation of EU copyright rules Part 1/3’ SWD (2016) 301 final and European Commission, ‘Commission Staff Working Document Impact Assessment on the Modernisation of EU Copyright Rules Part 3/3’ SWD (2016) 301 final.
90 It remains key to remuneration in the music, and audiovisual industries.
91 In 1836, French newspaper ‘La Presse’ is supposed to be the first newspaper to include paid advertising. See for further detail: Dominique Kalifa, ‘The Press’ in Edward Berenson et al (eds), The French Republic: History, Value, Debates (Cornell University Press 2011) 192, 193.
92 Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] EU:C:2009:465, where 11-word extracts were deemed as copyright infringement.
93 Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended on 28 September 1979) (hereafter: ‘Berne Convention’); Directive 2001/29/EC (n 2) art 5(3)(d).
94 compromised Copyright Directive (n 2) 3.
95 ibid recital 31.
96 These rights are in art 3(2) of Directive 2001/29/EC.
97 For more on national initiatives, see Rupprecht Podszun, ‘Searching the Future of Newspapers: With a Little Help from Google and IP Law?’ (2013) 44 (3) IIC 259; Rosati (n 14).
98 Study for the JURI Committee, ‘Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive’ (2017) 17 <www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU(2017)596810_EN.pdf>.
99 Sections 87f–h of the German Copyright Law (UrhG) and art 32(2) of the Spanish Law on Intellectual Property.
100 The Impact Assessment itself acknowledges the limited effects of this new right in Germany and Spain. Characterising the right of ‘ineffective’ partly due to ‘the lack of scale of national solutions’. At this moment in time, it is still doubtful that a cross-border effect will prove to be more efficient.
101 Indeed, section 11 of the CDPA provides that the first owner of copyright is granted to the employer if the work has been created during the course of employment. Furthermore, freelance journalists generally transfer the ownership of economic rights through contractual agreements as per section 90 CDPA.
102 Article 2(4) of the proposed directive defines ‘press publication’ as: ‘a fixation of a collection of literary works of a journalistic nature, which may also comprise other works or subject-matter and constitutes an individual item within a periodical or regularly-updated publication under a single title, such as a newspaper or a general or special interest magazine, having the purpose of providing information related to news or other topics and published in any media under the initiative, editorial responsibility and control of a service provider’. Furthermore, recital 33 specifies that: ‘For the purposes of this Directive, it is necessary to define the concept of press publication in a way that embraces only journalistic publications, published by a service provider, periodically or regularly updated in any media, for the purpose of informing or entertaining. Such publications would include, for instance, daily newspapers, weekly or monthly magazines of general or special interest and news websites’.
103 Critiques have also highlighted the fact that the extremely broad scope of this new right is likely to result in granting copyright protection in subject matter traditionally excluded from copyright protection by international treaties such as facts. See Berne Convention (n 93).
104 See Recital 34a of the compromised text that includes: ‘Taking into account the massive aggregation and use of press publications by information society service providers, it is important that the exclusion of very short extracts should be interpreted in such a way as not to affect the effectiveness of the rights provided for in this Directive’.
105 Furthermore, copyright remains territorial. Therefore, authors are not granted an EU-wide reproduction right but a reproduction right in each jurisdiction where protection is sought. This fragmentation increases the difficulties in licensing; Bently et al (n 14).
106 Christophe Geiger et al, ‘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’ (2016) CEIPI Research Paper No 2016-01 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2921334##>. It was sent to the European Commission on 2 December 2016.
107 Frosio et al (n 14) 208–09.
108 European Parliament Committee on Legal Affairs, ‘Draft Report on the Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market (COM(2016)0593 – C8-0383/2016 – 2016/0280(COD))’ (2016) 2016/0280 COD (limiting the new right to 1 year since publication); such proposal is presumably based on a strengthening of article 5 of Directive 2004/48/EC.
109 Study for the JURI Committee (n 98) 15.
110 The Impact Assessment acknowledges this too.
111 Is there a pressing social need justifying the introduction of this right and therefore, the curtailing of the right to freedom of expression? Here, scholars have expressed criticisms. van Eechoud (n 14) 18–24; Study for the Juri Committee (n 98) 24; Pihlajarinne and Vesala (n 14) 220–28.
112 ibid.
113 For a study examining the impact of social media platforms and technology companies on the sustainability of ‘traditional press publishers’, see: Emily Bell et al, ‘The Platform Press – How Silicon Valley Reengineered Journalism’ (Tow Center for Digital Journalism at Columbia Journalism School, 2017) <https://doi.org/10.7916/D8R216ZZ>. See also: Nushin Rashidian et al, ‘Friend and Foe: The Platform Press at the Heart of Journalism’ (Columbia Journalism Review, 2018) <www.cjr.org/tow_center_reports/the-platform-press-at-the-heart-of-journalism.php/>.
114 Except for the quantitative rules, which still apply only to linear services.
115 For example, the ‘Cairncross Review’ in the UK, which is looking at how to sustain the production and distribution of high-quality journalism has consulted on the option of some kind of subsidy. For further detail see The Cairncross Review, ‘A sustainable future for journalism’ (HM Government, 12 February 2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/779882/021919_DCMS_Cairncross_Review_.pdf>.