The 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[1] [the ”DSM Directive”] introduces in Title IV, as part of the ”measures to achieve a well-functioning marketplace for copyright” and related to ”rights in publications”, legal provisions for the ”protection of press publications concerning online uses”, in Article 15.
On the 1st of April 2022, the Law no. 69/2022[2] implemented the DSM Directive by amending the Law no. 8/1996 on copyright and related rights.
Article 15 of the DSM Directive was implemented in the Romanian Law no. 8/1996 in Articles 94 and 941 of the Law no. 8/1996.
This paper concentrates on some essential issues related to the Romanian implementation of the new press publishers’ related rights and it is organised in three parts.
The first part presents briefly the context of the adoption of the press publishers related rights, the main aspects in establishing the boundaries of press publishers’ rights, with a focus on issues related the determining the object of protection.
The second part questions if the Romanian legal provisions guarantee the effectiveness of press publishers’ related rights, given that it does not provide for criteria that allow the calculation of the remuneration due by online service providers to press publishers.
The third part raises concerns regarding the compliance with the provisions of the DSM Directive of the Romanian implementation of the right of authors of journalistic works included in press publications to an appropriate share of the revenues received by press publishers from online service providers.
I. The context of the adoption of the press publishers related rights. Main aspects in establishing the boundaries of press publishers’ related rights
Press publishers’ related rights were adopted in the context of an extensive use of press publications by online services such as news aggregators and media monitoring services that made huge amounts of profits by using journalistic works [extracts of articles (snippets), photographs (thumbnails), videos], without the prior consent of press publishers or of authors of the works included in a press publications, without the payment of a remuneration for the uses and in breach of copyright and database rights in the works reused online.
Prior the adoption of the press publishers’ related rights, the repeated attempts of press publishers and authors of journalistic works to license their works or to enforce copyrights or database rights against online services, such as, for example, Google News, failed.
The enactment of the press publishers’ related rights aims to give press publishers bargaining power in relation with online service providers[3], to enable the conclusion of licensing agreements for the online use of press publications and journalistic works included in press publications.
The implementation of press publishers’ related rights was mandatory for Member States, as it results from the preamble of the DSM Directive, paragraph (55).
The scope of the new press publishers’ related rights is the same as that of the right of reproduction and of the right to make available to the public, stipulated in Article 2 and Article 3 (2) of Directive 2001/29/EC – the Infosoc Directive [Article 15 (1) and (4) DSM Directive].
The rights are granted for press publications first published after 6 June 2019.
The duration of the press publishers’ related rights is of 2 years, calculated from 1 January of the year following the date on which that press publication is published.
Holders of the rights are ”publishers of press publications”, such as news publishers and news agencies, when they publish ”press publications” for which they assume the initiative, editorial responsibility and control [par. (55), preamble DSM Directive].
The concept ”press publication” is defined by Article 2 (4) DSM Directive, implemented in articles Art. 21 (1) h) and 2 (3) of the Romanian law.
”Press publications” include ”journalistic publications published in any media, such as ”daily newspapers, magazines, news websites” [preamble of the Directive, par. (56)].
Online publications that provide updated information ”as part of an activity that is not carried under the editorial responsibility and control of a service provider”, such as blogs and ”periodicals that are published for scientific or academic purposes, such as scientific journals” do not fall under the definition of ”press publications”.
Addressees of the related rights are online service providers ”for which the reuse of press publications constitutes an important part of their business models and a source of revenue” [par. (54), Preamble DSMD], such as ”news aggregators, media monitoring services” and social platforms, such as Facebook, inso far as they offer such services.
The object of protection consists of ”literary works of a journalistic nature”, ”other types of works” – photographs, videos, ”other subject matter”, included in ”journalistic publications”.
Issues in determining the object of protection of press publishers’ related rights may be raised by the legal concept ”other subject matter”.
Does the concept cover only original works of human authorship, or does it include also AI generated content, without the requirement of originality?
One possible interpretation is based on Article 15 (1) of the DSM Directive, read in conjunction with Article 2 of the Infosoc Directive, as interpreted by the ECJ in the Infopaq[4] decision, which stated, essentially, that copyright protection is grated only to original works. Originality must reflect the “author’s own intellectual creation” or the author’s personality, which clearly means that a human author is necessary for a copyright work to exist.
Another possible interpretation has in view that the legal protection is not granted under copyright, but under a related right with a special legal regime, which does not impose the requirements of investment (as for protection under the database rights) and originality (as in case of copyright). This interpretation allows the legal protection of content generated by the so called ”artificial intelligence journalism”[5]. AI journalism is used by press agencies since 2016.
”Hyperlinks”, ”mere facts”, ”individual words” and ”very short extracts” of a press publication are excluded from protection.
The concept ”very short extracts” of a press publication raises difficulties of interpretation. According to the preamble of the Directive, the legal notion is to ”be interpreted in such a way as not to affect the effectiveness of the rights provided for” [par. (58), preamble, DSM Directive]. A ”very short extract” has little or no economic significance for the press publisher [par. (54) and (58), preamble DSM Directive].
Article 941 (2) c) of the Romanian Law introduces a quantitative criteria and adds 3 alternative conditions. A very short extract has a maximum length of 120 characters (not words) and it ”does not affect the effectiveness of the rights or it does not lead to the replacement of the press publication or it does not determine the public not to access the press publication”.
Several questions arise in relation to the interpretation of this important article, which allows a press publisher to prohibit the reproduction of an extract that has 120 characters, when, in the opinion of the press publisher, the extract affects the effectiveness of its rights.
In case an extract has 122 characters, is the damage to the press publisher presumed? How may the presumption be reversed? Are there any means of proof available?
In case an extract has maximum 120 characters and all the alternative conditions are respected, so that there’s no infringement of the press publishers’ related rights, the question arises if copyright in the same extract might be infringed?
The answer to the question has to be given in view of the ECJ ruling in Infopaq, according to which ”11 consecutive words” of a protected work may infringe copyright, ”if the elements thus reproduced are the expression of the intellectual creation of their author”[6].
The interpretation of the legal concept ”very short extract” of a press publication has to be in relation with the legal provisions of Article 5 of the Infosoc Directive, in particular these regarding the exception for the use of ”works or other subject-matter in connection with the reporting of current events”, ”to the extent justified by the informatory purpose” [Article 5 (3) (c) of Directive 2001/29/EC] and the exception for quotation ”for purposes such as criticism or review” [Article 5 (3) (d) of Directive 2001/29/EC].
The problems that may arise at the EU level is due to the lack of harmonization of national implementations of Article 5 of the Infosoc Directive, that determines a lack of harmonization of press publishers’ rights.
For example, under German law search results produced by search engines do not qualify as quotations, whereas under Dutch case law they do. In Spain, changes to the quotation exception were introduced, so that search engine operators would have to pay compensation for displaying short extracts of press publications[7].
In order to rely on the exception for quotation, the length of the extract has to be justified by the legal purpose. There are no quantitative limits imposed by the law.
Consequently, if an extract has more than 120 characters and does substitute the press publication, but its length is justified by the purpose of quotation (as interpreted in the ECJ jurisprudence), the exceptions to the press publishers’ related rights apply.
The same is applicable for the exception for the reporting of current events. The length of the extract is irrelevant, as long as it is justified by the informatory purpose.
II. Is the Romanian law able to guarantee the effective exercise of press publishers’ related rights, given that it does not provide for criteria that would allow the calculation of the remuneration due by online service providers to press publishers?
In contrast with the Romanian legal provisions, the Italian Copyright Law[8] establishes relevant criteria to be taken into account at negotiations of the licensing agreements to be concluded between press publishers and online service providers: the number of online accesses of the article, the years of activity and the relevance on the market of the press publisher, the number of the journalists employed, the costs incurred on both sides for investments in technology and infrastructure, the economic benefits deriving to both parties from the publication of the article as to visibility and advertising revenues.
Also, the French IP Code provides for such relevant criteria, different from the Italian ones: ”the human, material and financial investments made by publishers and press agencies, the contribution of press publications to political and general information and the importance of the use of press publications made by the internet service providers” [Article L 218-4 (2)].
Moreover, the Romanian law does not impose on online services the obligation to provide relevant data which would allow a transparent and fair calculation of the remuneration due to press publishers.
In comparison, under the Italian Copyright Law, online service providers are bound to provide all data necessary to calculate the fair compensation, at the request of the Authority for Guarantees in the Communications or of any interested party, including through collective management organizations or independent management entities. A breach of the duty to provide the data within thirty days from the request may result in administrative sanctions [Article 43 bis (12)].
The French IP Code obliges online services to ”provide press publishers and press agencies with all information relating to the use of press publications by their users as well as all other information necessary for a transparent evaluation of the remuneration […]” [Article L 218-4 (2)].
III. Does the Romanian implementation of the right of authors of journalistic works included in press publications to an appropriate share of the revenues received by press publishers from online service providers comply with the provisions of the DSM Directive?
According to Art. 15 (5) DSM Directive:
”Member States shall provide that authors whose works are incorporated in a press publication should be entitled to an appropriate share of the revenues that press publishers receive” for the use of their press publications by online service providers.
According to par. 59 of the preamble of the Directive, the ”appropriate share of the revenues” is due to authors of the works ”without prejudice to national laws of ownership” and to the ”exercise of rights in the context of employment contracts”, meaning that the revenue is added to the salary.
According to Art. 941 (6) and (7) of the Romanian law:
”Authors of works incorporated in a press publication shall be entitled to an appropriate share of the revenue received by the publishers of press publications from online uses by information society service providers, subject to the principle of freedom of contract and that of a fair balance between the rights and interests of the parties.
Payment of a lump sum may constitute appropriate remuneration.”
”The provisions of par. (6) do not apply in the case of publishers of press publications for the rights acquired in the context of labor relations […].”
Under the Romanian law, if an author of a journalistic work included in a press publication is the employee of the press publishers and receives a salary, he/she shall not be entitled to a share of the revenues obtained by the press publishers from online services.
Moreover, even outside the context of a labor contract, authors may not receive an appropriate ”share of the revenues” for online uses of their works included in press publications, but only a lump sum.
The Romanian legal provisions allow the conclusion of the so called ”right-grabbing contracts”, against which the International Federation of Journalists has launched a worldwide campaign to demand fair payments to journalists[9].
In contrast with the Romanian law, under the French law, authors of journalistic works are entitled to an appropriate and equitable share of the press publishers’ remuneration. The share of remuneration has a ”complementary” nature and may not be considered a ”salary” [Article L 218-5-I].
Under German law[10], press publishers due to authors a minimum share of one third of the revenues received from online service providers.
The Italian Law establishes that authors of journalistic works are entitled to receive two to five per cent of the same revenues.
The Polish Law states that authors have the right to a fifty percent of the revenues obtained by press publishers from online service providers[11].
In view of the above, the Romanian law does not comply with the provisions of the DSM Directive, on the contrary, it frustrates one of the purposes of the enactment of the press publishers’ related rights: to remunerate authors of journalistic works for the online uses of their journalistic works.
Short conclusions
The variety of national legal provisions in the implementation of Article 15 of the DSM Directive reveal that the goal of harmonizing the copyright and related rights legal regime in the digital single market was not achieved.
However, the aims of the DSM Directive were achieved in France. Only after the implementation of the press publishers’ related rights and only after tough legal battles under provisions of competition law on the abuse of a dominant position, the association of press publishers l’Alliance de la presse d’information générale was able to conclude licensing agreements with the internet giant Google News and with Facebook, for the online service Facebook News. Press publishers and journalists received remunerations for the online uses of their works.
[1] Published in OJ L 130, 17.5.2019, p. 92–125.
[2] M.Of. no. 321 of 01.04.2022.
[3] S. Scalzini, The new related right for press publishers: what way forward?, (July 31, 2020), in E. Rosati (ed.), Handbook of European Copyright Law (Routledge, 2021), available here (accessed 15 May 2022).
[4] C-5/08 Infopaq, par. 33 and 34.
[5] A. Trapova, P. Mezei, Robojournalism – A Copyright Study on the Use of Artificial Intelligence in the European News Industry, GRUR International, 2022; ikac038, available here (accessed 14 May 2022). The authors conclude that ”the extent to which European journalism relies on assistive and generative technologies to produce written output does not justify, from a copyright perspective, the changing of the current anthropocentric copyright system”.
[6] C-5/08, Infopaq, par. 48-51.
[7] Mireille M.M. van Eechoud, A publishers’ intellectual property right. Implications for freedom of expression, authors and open content policies, available here.
[8] Accessible here.
[9] IFJ/EFJ is the world’s largest organisation of journalists, representing 600.000 media professionals from 187 trade unions and associations in more than 140 countries. According to IFJ, a ”right-grabbing contract” is ”a contract where a media employer asks you to sign away all your authors’ rights/copyright for an unlimited time, in any media, or on any platform, for a single payment – usually just the fee you are paid for writing the original story. This means that you will not get any extra remuneration if your article, photograph or broadcast is reproduced or sold elsewhere (e.g., to a database, other media in the same media group or externally). In addition, your contract may also insist that you waive your moral rights and thus prevent you from the right to be named as the author or to oppose any modification that threatens the integrity of your work. This can also imply that you are allowing your employer to sell your story to another media which you may not approve of”. See here (accessed 15 May 2022).
[10] Urheberrechtsgesetz – UrhG, Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273), as last amended by Article 25 of the Act of 23 June 2021 (Federal Law Gazette I, p. 1858), accessible here.
[11] M. Peguera, Spanish transposition of Arts. 15 and 17 of the DSM Directive: overview of selected issues, Journal of Intellectual Property Law & Practice, Volume 17, Issue 5, May 2022, Pages 450–456, available here.
Av. dr. Sonia Florea, SCPA Florea Gheorghe și Asociații
* This brief article is the oral presentation at the ALAI Romania Conference ”Provocările dreptului de autor la 160 de ani de la prima reglementare a acestora în România si la 150 de ani de drepturi morale în lume”, 24.06.2022. The full written article may be accessed here.
