The Role of Copyright and Copyright-Related Rights in Online Press Publishing Regulation

Background

The online media industry is going through a very tense time, largely related to complaints by publishers, and press publishers in particular, that their content is being used by third parties without the possibility of proper remuneration. In response to this, the European legislature has already introduced a new copyright-related right for press publishers in Article 15 of the CDSM Directive of 2019, with the aim of strengthening the position of publishers vis-à-vis big tech giants and other operators of the digital industry, thus enabling publishers to recoup their investments in news production. A further intervention in this area is the setting of two exceptions for text and data mining (TDM) in Articles 3 and 4 of the CDSM Directive. These exceptions clarify previous disputes about whether – as publishers claimed – TDM activities were covered by copyright law and therefore illegal without the authorization of copyright holders. Since these exceptions have been framed by the European legislature in a very narrow way, in practice the new rules give the right holders a say on TDM activities in most cases. Moreover, the scope of these exceptions is further limited by the fact that they have been implemented differently at the national level in EU countries, thus making it more complicated to perform TDM activities.

Despite the new rules, the challenges affecting online publishing have not diminished; rather they have been exacerbated by the explosion of AI systems, whose training is largely based on online content. In fact, press publishing now faces new issues brought about by generative AI systems, including large language models (LLMs) and related applications (such as chatbot interfaces), which are ideally trained on quality content included in works or other protected subject matter. Also, AI applications may act as competitors to press publishers, providing informational and cultural content to the public, and therefore may take readers and advertisers away from publishers’ websites.

Content of the Project

In light of the above and given the high public interest surrounding press publishing, the Institute has been doing research in this area for a few years. 

Press Publishers vis-à-vis Digital Platforms

A first line of research focuses on the new copyright-related right for press publishers, on the impact of this new exclusive right at European level and, especially with those countries in mind that are considering following the path of the European legislature, on the comparison of the European solution with others adopted overseas, e.g. by Australia and Canada. The position of press publishers vis-à-vis digital platforms is indeed a topic of concern outside of the European Union. Despite the fact that content such as news texts, photos and videos are already protected by copyright, publishers everywhere claim additional protection against online exploitation. This research therefore aims to be a baseline for a global challenge.

In 2023, for instance, the Institute contributed to the international debate with a study on the implementation of Article 15 CDSM Directive and the comparison of the new EU press publishers’ right with other existing legislative models in this field. A summary of this study is forthcoming in IIC. Four years after the adoption of the CDSM Directive, almost all Member States have implemented Article 15 on the protection of press publications concerning online uses. Although it is still rather early to assess the overall impact of Article 15 CDSM Directive on the online press market, some effects, particularly on the actual success or failure of press publishers in licensing their rights, can already be observed.

In this context, the Institute discusses whether Article 15 of the CDSM Directive has achieved its intended purpose or not. More in detail, the implementation of the right by Member States has exposed the inadequacies of the provisions. The problem of negotiation imbalances between the press publishers and large operators such as digital platforms still exists. Despite the new exclusive right for press publishers, negotiations between internet service providers and news producers are moving forward with difficultly. Member States need to deal with these issues taking action at national level. In France, for instance, a duty to negotiate a license has been imposed by the French Competition Authority on Google for abusing its dominant position. Similar proceedings have also been initiated by the German Competition Authority.

Against this background, the study makes a comparative analysis of national implementations and the different approaches to the press publishers’ right in other jurisdictions, particularly Australia and Canada. The comparison shows the characteristics of the regulated negotiation system set out in those countries and the role the competition authorities are playing in the field. The study also analyses the use of arbitration as a dispute resolution mechanism and the role of special institutions responsible for the negotiation process. The study also looks into the Italian model, which can be described as a hybrid model that leverages both the introduction of the new exclusive right for press publishers and a mechanism that imposes rules of conduct and regulates negotiations. Finally, the research summarizes and compares five possible regimes to tackle the issues of online press publishing: i) new copyright-related rights; ii) unfair competition rules on pre-existing intellectual property rights; iii) antitrust (competition) law; iv) contract law (which protects weaker parties); v) “competition-oriented approaches”, which impose rules of conduct and regulate negotiations (thus favoring competition).

The Challenges of Text and Data Mining in the Era of Large Language Models

TDM is a key technology whose use is restricted by copyright law. Insofar as this results in a barrier to innovation, the question must be asked whether the current copyright law framework promotes the general interest, or, in other words, whether to promote innovation there is a need to allow copyright as much flexibility as possible.

Also, TDM is no longer just about establishing correlations, in the sense that it allows the best use of existing (published) knowledge. TDM is ultimately also the underlying technology for generative AI. This can still be viewed positively when it comes to training AI tools. However, even in this context questions may be raised on how far this is in the public interest, namely to what extent the interests of rights holders in the use of their works by third parties should take second place. If these (trained) AI tools are then used to manufacture products that replace classic human-made products, this can lead to questions of principle, depending on the case. The best example is probably that of quality printing, which thrives on being able to market (copyrighted) content produced at considerable cost, especially through subscriptions or individual sales (e.g. individual items online).

Furthermore, if independent actors offer AI-generated summaries, such as in the sense of an overview similar to a press review, this might be sufficient for most readers interested in a topic, who might then forgo consulting the original press articles and paying for them. This could cause a (double) market failure in the sense that quality media no longer generate enough revenue to survive – but without the content of these quality media, even AI-generated summaries can no longer be produced. This raises the question of how far flexibility – in the sense of permissions to do TDM – can be pursued if such collateral damage is to be avoided. At the same time, this is very much related to the protection of press publishers – not in the currently often discussed sense of protecting snippets, but in the form of a much more complex remuneration system for those who use TDM to produce AI-generated content. A first result of this research will be published as part of an external project on the future of copyright law set to be published by Edward Elgar in an edited book during 2024.

Publications

Moscon, Valentina, Data Access Rules, Copyright and Protection of Technological Protection Measures in the EU. A Wave of Propertisation of Information (Max Planck Institute for Innovation & Competition Research Paper, No. 23-14), 2023, 24 pages.

Moscon, Valentina, Online Press Publishing Market: Regulatory Approaches Beyond Copyright-Related Rights, IIC – International Review of Intellectual Property and Competition Law 2024, forthcoming.

Hilty, Reto M; Valentina Moscon, AI-generated content in Online Press Publishing in: Caterina Sganga, Enrico Bonadio (eds.), A Research Agenda for EU Copyright Law, Edward Elgar Publishing, Northampton, MA, USA; Cheltenham, UK 2024, forthcoming.

Selected Previous Publications and Presentation

On Press Publishers’ Copyright-related Rights:

Hilty, Reto M.; Kaya Köklü, Valentina Moscon, Position Statement of the Max Planck Institute for Innovation and Competition on the "Public consultation on the role of publishers in the copyright value chain" 2016, 9 pages.

Hilty, Reto M.; Valentina Moscon, Part E – Protection of Press Publications Concerning Digital Uses (Article 11 COM(2016) 593 final) in: Reto M. Hilty, Valentina Moscon (eds.), Modernisation of the EU Copyright Rules – Position Statement of the Max Planck Institute for Innovation and Competition (Max Planck Institute for Innovation and Competition Research Paper, No. 17-12), 2017, 79–88.

Moscon, Valentina, Use and Abuse of Neighbouring Rights and the Growing Need for a Sound Understanding: The Case of Online News Protection in Europe in: Susy Frankel (ed.), The Object and Purpose of Intellectual Property (ATRIP Intellectual Property Series), Edward Elgar Publishing, Northampton, MA, USA; Cheltenham, UK 2019, 308–332.

On Text and Data Mining:

Moscon, Valentina, Wissensschaftsschranken. Europäische Vorschläge: Text and Data Mining, ALAI Seminar on Wissenschaftsschranke – Neue Vorschläge aus Berlin und Brüssel, Faculty of Law, Freie Universität Berlin, Germany, 30 November 2016.

Hilty, Reto M.; Heiko Richter, Part B – Copyright Exceptions and Limitations, Chapter 1: Text and Data Mining (Article 3 COM(2016) 593 final) in: Reto M. Hilty, Valentina Moscon (eds.), Modernisation of the EU Copyright Rules – Position Statement of the Max Planck Institute for Innovation and Competition (Max Planck Institute for Innovation and Competition Research Paper, No. 17-12), 2017, 25–33.