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Press publications and their online use. What will bring the new legislation? (Part I)

by Marek Bugan

 

In this article, we will discuss the anticipated benefits and impacts of the new  

European Union legislation (1) concerning online use of press publications.

In the first part of this article, we discuss a new definition of a press publication that will unify its understanding at a European Union level, as well as the protection of press publications when used online.

In the second part of this article, we will compare the rights of publishers of press publications with rights of the authors of the texts contained in it, we will point out a new way of remuneration of those authors, and finally identify the information society service providers that will have to pay for online use of press publications.

A new definition of press publication

In general, the new Directive is reflecting the technological developments (especially in the online environment) that changed the way works and other subject matter are created, produced, distributed and exploited. This is one of the reasons why the term press publication was unified in the European Union level.

According to the new Directive, the press publication means collection composed mainly of literary works of a journalistic nature, but which can also include other works or other subject matter, and which

  • 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;
  • has the purpose of providing the general public with information related to news or other topics; and
  • is published in any media under the initiative, editorial responsibility and control of a service provider (e.g. news publishers or news agencies, when they publish press publications within the meaning of this Directive).

The press publications that should be covered include, for instance, daily newspapers, weekly or monthly magazines of general or special interest, including subscription-based magazines, and news websites. Furthermore, it follows from the Directive that periodical publications published for scientific or academic purposes, such as scientific journals, will not be covered by the protection granted to press publications under the Directive. This protection will not apply to websites, such as blogs, that provide information as part of an activity that is not carried out under the initiative, editorial responsibility and control of a service provider (e.g. news publisher).

The legal order of the Slovak Republic does not yet know the concept of a press publication to a similar extent as defined by the Directive. At present, the closest definition in Slovakia is “periodical press”, which is regulated by the Press Act(2) according to which it means: “newspapers, magazines or other printed matter, published under the same name, with the same content and in a uniform layout, at least twice a calendar year.”

The Press Act under the definition of periodical press, understands only press in its literal meaning, i.e. in graspable paper form and does not include press publications published on another medium (e.g. news websites).

The adoption of this definition into the Slovak legal order will be welcomed, but whether it will be used only in connection with the protection of press publications or also in connection with the rights (e.g. right to information) and obligations (e.g. to publish a correction, response, additional notice) of the publishers of periodical press stipulated by the Press Act, will be clear after its transposition into national legislation, that must be completed by 7th June 2021.

From the above it can be assumed that there will be an amendment to the Press Act or a new special act regulating this area.

Protection of the press publications when used online

The Directive grants broader rights to publishers of press publications than it did before its adoption. Publishers of press publications under the Directive have two circuits of newly granted rights:

  • the exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction in any way and in any form, in whole or in part; and
  • the exclusive right to authorize or prohibit the making available to the public by wire or by wireless means in such a way that the public has access to them at a time individually chosen.

The above-mentioned rights of publishers of press publications will not apply to everyone and there are exceptions to their application. These rights will not apply to private or non-commercial uses of press publications by individual users. Additionally, the protection of press publications used online, will not apply to acts of hyperlinking.

The rights will not apply in respect of the use of individual words or very short extracts of a press publication. To what extent it will be possible to use short excerpts from press publications will only show the practical application of the Directive and the related decision-making practice of the courts. Generally, the authors of the Directive state that due to the massive aggregation and use of press publications by information society service providers, it is important that the exclusion of very short extracts be interpreted in such a way as not to affect the effectiveness of the rights, that are provided by the Directive. This indirectly implies that the subject who uses the very short extract, should not benefit economically from it, or that such use should not be of economic importance.

The rights granted to publishers of press publications under the Directive are also subject to the exceptions and limitations according to other directives.(3) The enumeration of those exceptions and limitations as well as the authorization of Member states to decide whether they will transpose these exceptions and limitation are very broad.(4) The transposition of the new directive will show to what extent Member States will accept these exceptions and limitations.

Duration of the protection of the press publications

According to the Directive, rights related to the protection of press publications used online will last for two years after the publication of the press publication. That period shall be calculated from the first of January of the year following the date of publication of the press publication.

The protection of press publications will not apply to works that were first published before 6th June 2019.

 

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(1)    Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (hereinafter referred to as “Directive”).

(2)    Act no. 167/2008 Coll. on periodical press and agency news (hereinafter referred to as “Press Act”).

(3)    Exceptions and Limitations are contained in Articles 5-8 of Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society, and Articles 5-8 of the Directive 2012 / 28 / EU on certain permitted uses of orphan works.

(4)    Examples include the following exceptions and limitations: (i) temporary use of the work within the meaning of § 54 of Act no. 185/2015 Coll. Copyright Act (hereinafter referred to as “Copyright Act”), (ii) incidental use of a work in accordance with § 55 of the Copyright Act, (iii) use of the work for archiving purposes in accordance with § 49 of the Copyright Act, (iv) use of the work for educational purposes and research in accordance with § 44 of the Copyright Act, (v) use of the work for the needs of persons with disabilities within the meaning of § 46 of the Copyright Act, (vi) citation for criticism or review in accordance with § 37 of the Copyright Act and many others.

 

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