Abstract The author Ula Furgal is a doctoral researcher at the European University Institute in Florence, Italy. This article This article argues that the introduction of the ancillary right for press publishers at the European Union level would provide an alternative answer to the linking conundrum, not directly connected to the right of communication to the public. The solution proposed by ancillary right is an alternative since it addresses elements of the act of linking which are not directly relevant for determining whether a link counts as an act of communication to the public. Accordingly, in the context of linking ancillary right puts an emphasis on the referred publication (a press publication), its producer (a press publisher) and its partial reproduction (a snippet and a headline). While being presented as a right of press publishers, in reality the ancillary right effects might go beyond press publishing domain, touching upon all internet users. After summarizing the linking debate, the article examines the three aspects of the ancillary right: material scope, right of reproduction and personal scope of the right. The article builds on Spanish and German ancillary right provisions, the text of the European Commission proposal for the directive on copyright in the Digital Single Market, as well as responses to the European Commission’s consultation on the role of publishers in a copyright value chain. 1. Introduction Linking and the proposed ancillary right for publishers1 are two highly controversial issues in the EU copyright debate. As part of the ongoing modernization of copyright rules, the European Commission (EC or the Commission) has put forward a proposal for a directive on copyright in the Digital Single Market (the Proposal).2 It envisages the introduction of an EU-wide ancillary right for publishers following in the footsteps of Germany and Spain, both of which have already adopted initiatives in this sense. The digital use of ‘press publications’, which the ancillary right aims to tackle, is inherently connected to linking. Thus far, linking has been considered from the perspective of the right of communication to the public, one of the exclusive rights of the copyright holder pursuant to the Information Society Directive (InfoSoc Directive).3 Jurisprudence of the Court of Justice of the European Union (CJEU) has not been clear on this point, identifying a number of complementary criteria which need to be applied on a case-by-case basis to each act of linking. The Proposal was expected to clarify the scope of the right of communication to the public. However, these expectations have not been met, as the Proposal remains silent on both: the scope of the right of communication to the public, and the applicability of this right to the act of linking. This article argues that the enactment of an EU-wide ancillary right provides an alternative answer to the linking conundrum, not directly connected to the right of communication to the public. The solution proposed by the ancillary right is an alternative, since it has a broader scope than the right of communication to the public, and it addresses different features of the link and the linked content. While being presented as a right of press publishers, in reality the ancillary right might affect the freedom to link to any content available online. The present analysis is arranged in two parts. The first part summarizes the linking debate. It outlines how press publishers have begun to question the freedom to link and recollects how linking has been addressed in the case law of the CJEU. It also expands on how the current debate on the ancillary right for publishers fails to explicitly address linking. The second part singles out the aspects of the ancillary right, which can efficiently influence freedom to link beyond the right of communication to the public. The features of the ancillary right are identified in reference to the national solutions in Germany and Spain, and the provision on ancillary right included in the Proposal. The analysis takes account of the opinions expressed in the responses to the European Commission’s Public Consultation on the role of publishers in the copyright value chain (the Consultation),4 which preceded the Proposal, as well as position statements of organizations actively participating in the debate on ancillary right. 2. Press publishers’ calls draw attention to the link A link5 is a basic communication tool, the heart of the web.6 It acts as a connector, allowing internet users to refer to and share content in a simple, efficient way by providing information on its location. Links come in a plethora of forms, the simplest being the internet address of a referred website,7 which when clicked on takes the user to a referred website’s home page. Deep links go a step further, allowing the user to skip the home page and to directly proceed to a relevant subpage. Both simple and deep links do not incorporate any content into a referring website; however, they are often accompanied by a preview. The preview provides the user with information on what she can expect to find after clicking through. As such, it allows her to make a swift decision if the referred website is, or is not of interest to her.8 A link, originally a neutral communication tool, has become a vital point in the discussion on copyright in the digital environment. The structure of the web enables everyone to link to any content available online; cooperation of the content owner is not needed. This has been a deliberate choice, to support the development of the web.9 The legal status of linking has, however, become controversial. In particular, freedom to link has been challenged by the publishers’ call for protection of rights in their publications. Publishers began to voice their concerns as early as 2009, when in the Hamburg Declaration they opposed a free re-use of press publications10 and urged for increased protection of their intellectual property online.11 It was the development of new online services, particularly news aggregators, which motivated them to speak up. News aggregators gather press publications provided by diverse sources, and display them in one place, with the aim of facilitating the discovery process for users.12 News aggregators take variety of forms, but all share three features: (1) they do not provide users with full text of press publications, (2) they do provide links to third-party websites where full text is accessible and (3) as a rule, they do not create their own original content. It is the third feature which made publishers view such services as parasitic.13 To protect their publications, press publishers have not only resorted to legal proceedings,14 but more importantly called for the introduction of new, ancillary rights in their favour. The right, belonging to copyright domain, while not being copyright itself, has been to secure remuneration from linking together with providing previews of press publications. To date, two Member States have enacted provisions to that effect: Germany15 and Spain.16 The approach adopted differs, with Germany providing producers of press products with an exclusive right,17 and Spain establishing a remunerated exception for providers of digital services of content aggregation to use non-significant fragments of contents.18 Both solutions are referred to as ancillary copyright, and aim at the right of making available to the public, which is part of the broader right of communication to the public19 as prescribed by the InfoSoc Directive.20 The ancillary right has quickly acquired such unflattering names as: ‘link tax’, ‘copyright levy’ or ‘lex Google’,21 and caused controversies even among press publishers themselves.22 Neither of national interventions has managed to secure remuneration. In Germany press publishers waived their right to collect licensing fees, in order to be listed in Google’s service.23 In Spain, where such renunciation has not been possible due to the non-waivable character of remuneration, news aggregators and similar services have simply ceased to operate.24 While failing to deliver remuneration to the publishers, granting of ancillary copyright in Spain and Germany has brought the issue of regulating linking to public attention. On the one hand, it has provoked the discussion on the publishers right in other countries, such as Austria, where introduction of similar solutions has been under consideration.25 On the other, it has given an impulse for such initiatives as the international Save The Link campaign,26 and the German Initiative Against Ancillary Copyright (IGEL).27 The initiatives have been drawing attention to restrictions which ancillary right imposes upon the users’ freedom to link, as well as the impediments it brings to basic services available on the internet, such as search engines, aggregators and social media.28 3. Linking and the right of communication to the public: a case-by-case assessment In Svensson, its first case on linking, the CJEU determined that linking amounts to an act of communication to the public.29 This is one of the exclusive rights granted to copyright holders by the InfoSoc Directive. It covers the authorization or prohibition of any communication to the public of works, by wire or wireless means, including making available to the public of protected works in such a way that members of the public may access them from a place and at a time individually chosen by them.30 The purpose of this generally formulated right is to accommodate all modes of communication of work to the public which is not present at a place where transmission originated, with the special emphasis on the interactive on-demand transmission.31 The Svensson case has attracted considerable discussion even before the delivery of the judgment, with contradictory opinions coming from the likes of the European Copyright Society (ECS)32 and the International Literary and Artistic Association (ALAI).33 The judgement itself, building on previous case law of the CJEU, singles out two cumulative criteria of the right of communication to the public: (1) act of communication and (2) direction of the communication to the public.34 Whereas the CJEU has reached the conclusion that a provision of a clickable link is an act of communication solely on the basis of the potential and direct character of access a link provides, to assess the second element it has employed a complementary criterion of a ‘new public’.35 Consequently, only a link directed to the public which has not been originally taken under consideration by the relevant rightholder falls within the scope of Article 3 of the InfoSoc Directive.36 Linking to content which is freely available on a referred website, in a sense that no measures restricting the access have been applied, does not infringe the right of communication to the public.37 When content is made available without any restrictive measures in place, it is assumed that the rightholder consents it being available to everybody.38 Cases after Svensson have been building upon its reasoning, while adding further complementary criteria to be taken under consideration, in addition to the new public. The first additional criterion is the knowledge, or presumed knowledge, of a linker of the infringing character of the content linked to.39 Secondly, the fact whether the links are posted for profit. If they are, one can presume that the linker was aware of the infringing character of the referred content. The third criterion is the essential character of the role played by the linker, without whose intervention users would not be able or would be, but with difficulty, to access the content.40 Those criteria are interdependent, which means that they are to be assessed not only individually but also in relation to one another.41 Consequently, determining whether a link is or is not an act of communication to the public is quite complex, and needs to be carried on a case-by-case basis.42 With linking being the most common communication tool one can instantly see that the test created by the CJEU does not provide a high level of legal certainty and does not reflect digital reality.43 The CJEU’s stance on the application of the right of communication to the public to linking has not been met with general approval. It has been argued that the very criterion of ‘new public’ is contrary to norms on communication to the public in the fundamental copyright treaties: the Berne Convention (the Berne or the Berne Convention) and WIPO Copyright Treaty (the WCT).44 The argument is that finding the infringement of a right of communication to the public only when work is communicated to a new public amounts to an undue extension of the principle of exhaustion.45 As this principle is inapplicable to the right of communication to the public, a single act of communication should not limit the rightholder’s ability to exclusively decide about further communications of his work.46 Additionally, determining the scope of new public in reference to what has or has not been taken into account by a rightholder introduces a subjective element to the exclusive right, which by definition should operate on precise and objective terms.47 Another objection to the CJEU’s interpretation of the right of communication to the public is lack of clarity as to what constitutes a ‘restrictive measure’, and consequently, what content has been made freely available online. Especially if, from the linking perspective, such measures are limited to technical solutions (paywalls, robot exclusion protocols) or do they include restrictions imposed through websites’ rules and regulations. Application of measures itself is read by some as a potential formality conditioning copyright protection.48 Such interpretation goes against the Berne’s explicit ban to limit enjoyment of rights by imposition of formalities.49 Additionally, it has also been questioned whether copyright exceptions, particularly quotation and private use, could remedy those acts of linking which are otherwise infringing.50 This issue is yet to be addressed by the CJEU. 4. Ancillary right without linking? The vague provisions of the EC’s Consultation and the Proposal The call to regulate linking has been at the centre of discussion on the ancillary right from the very beginning. Slowly but steadily, linking is now giving way to the more general arguments in support of publishers’ claims. As such, the current task of the ancillary right is to support quality press and its role in democratic societies, to create a level playing field between publishers and online services, and to make publishers equal in their rights with other creative industries producers. While achieving these aims, the right is not to restrict users’ freedom to link to what is freely available on the internet.51 The shift towards more general arguments in the discussion on ancillary right is present in the European Commission’s official documents on the modernization of copyright rules, published as part of the Digital Single Market (DSM) Agenda,52 particularly, the Consultation which preceded the proposal of the Europe-wide ancillary right for publishers. When considering the introduction of the ancillary right at the EU level, the EC has been very careful to avoid using the term ‘link’ or ‘hyperlink’ in any of its official communications. What the Consultation document enquired about were ‘online uses’ of publishers’ content.53 The questions on effects of publishers’ rights already enacted in some Member States used a slightly different, but no less general, term ‘specific types of online uses’, with no direct reference to the actual scope of the relevant national provisions.54 Nowhere did the Consultation document explain the term ‘online uses’, leaving it for the respondents to determine the meaning themselves. Nor did it provide either a wording or an outline of objectives of the consulted right, leaving the respondents with no interpretative help.55 With linking being a common communication tool on the web, unless explicitly expressed otherwise, it is only natural to assume that the term ‘online uses’ also covers linking. The lack of clear explanation of the key terms has been a major drawback of the Consultation. However, it has made the Consultation’s responses an interesting and a valuable source of information. When preparing their answers respondents had to build upon their own prior understanding of publishers’ right, which has shown how many different interpretations of ancillary right there are, and what purpose and form respondents believe the right should have. Linking has been referred to in the responses to a varying degree: from calling publishers’ right a ‘sui generis right in hyperlinks to publisher’s content’,56 by pointing out that linking does not equal using the content,57 and notions that new right will have nothing to do with a so called link tax,58 to not mentioning linking at all.59 Not only have the respondents supporting the introduction of the ancillary right remained silent on the point of linking, but so have its opponents, including the European Copyright Society, the European Federation of Journalists or Allied for Startups. One possible explanation is that respondents have simply adopted the vocabulary used by the EC in the Consultation document to adequately reflect the questions in their responses. The term ‘online use’ has also made its way into the Proposal.60 However, it is the ‘digital use’ which has been used to determine the material scope of the ancillary right. Like the Consultation, the Proposal provides no definition of these terms, possibly leaving it to the judiciary and parties to decipher their meaning. ‘Digital use’ seems to have a broader reach and covers not only uses involving the web, but all uses engaging digital technologies, with or without the use of the internet.61 Hyperlinking is referred to in the Proposal only once, in its recital 33, explicitly excluding from the scope of ancillary right links which ‘do not constitute communication to the public’.62 This simple reference does little to clarify the relationship between the right of communication to the public and linking. It is a simple statement that some links fall within the scope of the right of communication to the public, and some do not, following the CJEU’s jurisprudence requiring a case-by-case assessment of each link. The statement in recital 33 of the Proposal brought even more confusion to the already vague provision on the ancillary right. The recital refers to the right of communication to the public, even though the proposed ancillary right covers only the right of making available. It also urges ancillary right supporters to call for an explicit statement that each act of linking to press publication is an act of communication to the public, and when performed without prior consent potentially amounts to copyright infringement.63 Just after the publication of the Proposal, a group of European press publishers and their associations launched a campaign under the name ‘Empower Democracy’.64 The campaign focuses on the crucial role played by the press in democratic societies, and the indispensability of publishers’ right in sustaining a free and pluralistic press. The campaign’s official hashtag, #SaveThePress, seems to be a direct response to the above mentioned Save The Link campaign, and an attempt to present a new right of publishers in a positive way, as a means of reinforcing democratic values and not curtailing users’ freedom on the internet. As the “Empower Democracy” front builds upon the positive effects of free press, it refers to linking only in a defensive manner, to indicate that press publishers right would in no way limit freedom to link.65 In its response to the Consultation European Publishers Council (EPC), one of the founders of the campaign, indicated that publishers themselves encourage linking and sharing of the content by providing share buttons under the text made available on the website.66 5. Ancillary right: another way to affect linking The discussion on the ancillary right has shifted its focus from linking to the support of free and pluralistic press, but the aim remains the same: to secure remuneration for digital uses of press publications. To achieve this goal, the ancillary right addresses elements of the act of linking which are not directly relevant for determining whether a link counts as an act of communication to the public. When applied to linking, the ancillary right places emphasis on the referred publication (a press publication), its producer (a press publisher), and its partial reproduction (a snippet and a headline). The ancillary right might go beyond copyright protection, since it may prohibit: (1) the link to a press publication, even when such reference would not qualify as communication to the public, and (2) the partial reproduction of press publication, even when this publication or part of it would not be protected by copyright. The following section focuses on three aspects of the ancillary right: material scope, right of reproduction and personal scope, which echo previously singled out elements of the act of linking. If constructed broadly, those three aspects of the ancillary right could influence freedom to link and extend its effects beyond the press publishing industry to all users. While there is no generally accepted definition of the ancillary right, to characterize its features the article builds on Spanish and German provisions, the text of the Proposal, as well as responses to the Consultation and position statements published by interested parties. 5.1. Material scope: going against the copyright principles The ancillary right overlaps with the right of communication to the public; yet, it has a broader scope since it also covers non-protected works. Normally, for the right of communication to the public to apply, what is being communicated needs to be copyright-protected.67 There is no reason to doubt that press publications can be protected by copyright, but this capacity does not justify the assumption that all are protected. Like any other work, press publications need to be assessed on a case-by-case basis for their original character. The catalogue of works which can be protected by copyright is open-ended. However, works of fact, such as press publications, have been treated with caution, considering their more informative rather than creative purposes. An example to that effect is the Berne Convention, whose Article 2(8) explicitly excludes from its scope news of the day and miscellaneous facts having the character of mere items of press information.68 The basic principle upon which copyright law resides is the idea-expression dichotomy, which in the context of press, as it focuses on reporting facts, should be understood as a fact-expression dichotomy.69 In other words, what copyright protects is the expression of certain ideas or facts and not the ideas or facts themselves. Consequently, the factual or informational content of a press publication is under no circumstance subject to copyright protection. The above-indicated exclusion of the protection in Article 2(8) of Berne is the only mandatory one, which all the parties to the Berne need to observe. And it is the only article in Berne explicitly recognizing the principle of idea-expression dichotomy. With all EU Member States being party to the Berne Convention one should pay special attention to that provision, and bear it in mind whenever uses of press publication and rights associated with them are discussed. Some publishers, mindful of the above provision, view ancillary right as an opportunity to mitigate its effects and to secure exclusive rights exactly in the content which the Berne Convention has excluded from its scope. In its response to the Consultation the REPROPOL Association, a major Polish collective management organization (CMO) established by press publishers, has admitted that aggregators and platforms do not want to license the use of mere items of information exactly because they view them as unprotected.70 Publishers believe that ancillary right has the potential to amend this situation, by awarding protection even to simple non-original texts, whose aggregate systematic use can be harmful to publishers.71 Consequently, publishers’ right would protect investment, irrespective of its product being or not being protectable as such.72 The call for protection of both original and non-original press publications by the ancillary right pleads for nothing else than the circumvention of a basic principle of copyright, through the use of copyright-like measures. It goes exactly against the reasoning for choosing an exclusion from the scope of Berne instead of copyright exception to apply to news of the day and mere items of information. If covered by a copyright exception, news of the day and mere items of information could be reproduced together with an indication of original source, and compensation. What parties to the Berne Convention wanted to avoid, is granting copyright protection to purely commercial interests, like those in investment in production of a non-original content.73 One can see how ancillary right applicable to all press publications, regardless of their original or non-original character, would go against Berne contracting parties’ intention to limit copyright’s benefits to not-purely-commercial interests. The ancillary right as found in the Proposal does not include a minimum threshold of protection, neither based on the requirement of originality nor investment. The purpose of the right, as explicitly expressed in recital 32 to the Proposal, is to protect the organizational and financial contribution of publishers in producing press.74 However, unlike in the case of database right, another right aimed at protecting organizational and financial effort of the content producers, the investment does not need to be substantial.75 This means that even a minimal contribution to the creation of a press publication would merit ancillary right protection, regardless of its actual quantitative or qualitative significance for the production of a press publication. Thus, ancillary right has the potential to cover all content defined as press publication. 5.2. Snippets: right of reproduction and depriving links of context Apart from the right of communication to the public, an act of liking is likely to involve another exclusive right of the copyright holder: the right of reproduction. This right gives rightholders exclusivity in authorizing the reproduction of works by any means, either whole or in part.76 As explained above, a link is rarely limited to a web address, and is usually accompanied by a preview of the content it leads to (partial reproduction). By analogy to the right of communication to the public, application of the reproduction right under copyright depends on whether what is being reproduced is protected. Consequently, for the right of reproduction to apply, the preview accompanying the link needs to be protected by copyright. The ancillary right, as applied to linking, can potentially have a broader scope than the right of reproduction under copyright, as it could apply to all previews, prohibiting reproductions that do not infringe copyright. In the context of press publications, previews tend to consist of headlines and snippets, short fragments of text, limited to a sentence or even a part of a sentence. The potential protection of small portions of text has been explicitly recognized in the CJEU’s jurisprudence.77 Due to the lack of provisions to the contrary, such small parts of works need to fulfil the same criteria as the work as a whole.78 This means that a part of the work is not protected simply because the work it comes from is original. Only the part of the work containing an original element itself is protectable. In the context of literary works, such as headlines and snippets, an original element is ‘the form, the manner in which the subject is presented and the linguistic expression’.79 Selection of words and their phrasing is considerably limited in the context of fact-based works like press publications, as they need to report a certain fact in an accurate manner. This linguistic freedom is further restrained when previews are considered, simply because a short literary form automatically limits options for combination and phrasing of words. Consequently, it might be difficult for the snippet to achieve the required level of originality and for the right of reproduction under copyright to apply. When commenting on the use of snippets, some respondents to the Consultation have emphasized that linking without snippets is useless.80 The reason for this is that snippets provide context for links, without which the user would not be able to assess whether the referred website is or is not of any interest to her.81 It is the previews, which make links an efficient communication tool on the web. The link accompanied by a preview provides both sufficient means and information for the user to decide whether to click through, without needing to seek additional information about the referred website. Considering this crucial role played by the previews, the Nexa Centre for Internet and Society has noticed that the ancillary right does not need to explicitly aim at restricting linking to effectively limit the ability to link. It would be enough for the publishers’ right to limit the possibility to display to the reader the preview of the referred content.82 Such restriction could result in the link losing its function as a communication tool, as it would not be able to create efficient connections between websites. When adopting the ancillary right in Germany the legislator excluded from its scope ‘individual words or the smallest of text excerpts’.83 This exclusion was a last-minute addition to the legislative text, limiting the right’s reach towards previews. Such an approach aids preservation of a link function, but only if a preview allowed is of sufficient length for the user to decide whether to click through. The amendments introducing ancillary right into the German Copyright Act have not provided further explanation what a ‘smallest of text excerpts’ are, leaving it to the courts to make a final decision. The Copyright Arbitration Board of the German Patent and Trade Mark Office has recommended the exception to cover snippets of no more than seven words.84 It is disputable whether this amount is adequate, with headlines themselves often being longer than that. However imperfect the German exception is, the legislator has made an attempt at preserving the basic function of links. That is not the case with the Proposal, with it lacking similar safeguards and unlike their German and Spanish predecessors, making ancillary right to explicitly cover not only the making available right, but also the reproduction right. As pointed out above, the Proposal does not include the originality requirement, with the proposed ancillary right being thus applicable to both original and non-original press publications and their parts alike. Formulated so broadly, the reproduction right of an ancillary right holder would cover both partial and indirect copying and complete and direct copying.85 In other words, contextualization of link by provision of a headline and snippet would always be an intervention into the scope of exclusive right of a press publisher, regardless of whether the preview is original or not. As such, previously named ‘link tax’ changes its focus and becomes a ‘snippet tax’.86 5.3. Personal scope: we are almost all publishers on the internet.87 We have become used to referring to the ancillary right as a press publisher right,88 neighbouring right for publishers,89 publisher’s intellectual property right90 or most often, an ancillary copyright for publishers.91 What all these names have in common is that they put the figure of a press publisher at the centre. This creates an impression that an ancillary right is directed to an easily delineated group of press publishers. This impression is especially strong, when one considers the initial argument in support of ancillary rights: the need to support press publishers who have moved from the print to the online environment. Indeed, if the ancillary right was directed only to these press publishers who made a transition from print to digital its personal scope would be limited and the right should have no significant (if any) impact on linking. Practically, identifying who the beneficiaries of the ancillary right are is more complex, and the personal scope established is anything but narrow. Everyone has an intuitive understanding of who a press publisher is, and it is on the basis of this intuitive understanding that the Commission has based the Consultation. The Consultation document provided no definition of the term ‘publisher’ or ‘press publisher’. At the same time, most of the questions in the Consultation had two versions: one concerning press publishers and the second enquiring about publishers in all sectors.92 This distinction came as a surprise, considering that the Commission had not mentioned the possibility of granting the ancillary right to all publishers in its official documents before.93 Some of the respondents to the Consultation have taken the stand that there is no reason to distinguish a separate category of press publishers. The reasons given were, among others, that press publishers and news are subjective concepts,94 with no legal definition,95 making recognition of a separate category of press publishers, if not impossible, then very difficult. Other respondents indicated that each publisher can produce diversified content, creative and fact-based alike, which makes their allocation within one category impossible.96 Opinions on the unworkableness of the distinction between different types of publishers have been expressed by publishers themselves, with one association calling such distinction unjustifiable and unpractical.97 In other words, the term ‘press publisher’ does not seem to be as intuitively understandable as one could hope. Despite the fact that the figure of a press publisher occupies a central position in the discussion on ancillary right, the press publishing sector is not the sole addressee of the new right. The actual key for determining the personal scope of the right lies in the type of content produced: a press publication. As such, an ancillary rightholder is whoever publish the relevant content. This has led some of the respondents to the Consultation to indicate that as this content can be produced by anyone, there is no way of limiting the scope of application of the new right to a definite group of persons or entities. When one examines the variety of available publications and processes of their creation, she sees that the concept of publishing does not reflect the current online reality.98 There is no such thing as a clear division of roles online, with consumers using the plethora of online publishing tools, and easily becoming creators themselves.99 As such, distinguishing a separate category of press publishers might be artificial.100 The redundancy of a separate category of press publishers is further reinforced by the broad scope of the solutions already in force in two Member States. Whereas the Spanish approach covers periodical publications and periodically updated websites,101 the German right applies to collections published periodically on any media which are ‘overall a typical press publication’.102 Unfortunately, the German legislator has not provided guidelines on what a typical press publication is. What protected content in both countries needs to aim at, is provision of information or entertainment, or formation of opinions. One can see how unspecific these requirements are, making a regularly updated blog on celebrities or cuisine a potential subject of protection. This makes the limitation of the ancillary rights’ scope only illusory. A similar approach to defining the personal scope of the ancillary right has been taken in the Proposal, which creates a ‘right in press publications’ and not a publishers’ right.103 In the definition of press publication the Commission emphasized such elements as: the journalistic character of works included in the publication, its regular updates and the purpose of providing information related to news.104 Even though this definition omits an element of entertainment, it still remains broad, especially since neither ‘news’, nor ‘publisher’ has a legally defined meaning, and every piece of work based on facts can be described as informative. When one examines the personal scope of the ancillary right, there is yet another argument to consider: the argument of equality. While advocating for the introduction of the ancillary right, press publishers have pointed out that what they are asking for is not special treatment, but equality with other content producers whose investment has been already recognized by law.105 Broadcasters, music and film producers are beneficiaries of neighbouring rights, aimed at compensating their non-creative input in the production of creative works.106 Press publishers are not part of a homogeneous group, but are rather a vast conglomerate of persons and entities with varying interests and levels of investment. It is thus difficult to accept the argument of equating one group with the others, when the sheer existence of a separate group of press publishers is being called into question. And even if we accept that press publishers do constitute a separate group, it would be difficult, if not impossible, to reconcile their varying interests. Awarding the ancillary right to the press publishers pursuant to the argument of equality could potentially open the floor to other creative industries to call for recognition. Seeing that the granting of new rights is feasible, other entities and persons investing into the production of copyright-protected works could feel discriminated and seek protection of their interests as well. A preview in this regard provides a scientific and technical publishers’ reaction to the Proposal. The Proposal explicitly excluded from the scope of the proposed ancillary right publications for scientific and academic purposes. The scientific and technical publishers called this exclusion discriminatory, as it disregards the investment they make.107 In other words, any investment in content might be used to justify the calls for legal protection. 6. Conclusions: is an ancillary right the right alternative? Linking is not an explicit goal of the ancillary right for press publishers. The right’s supporters argue that its introduction would in no way restrict the ability to link, and while proposing the introduction of an EU-wide ancillary right, the EC has been cautious not to connect this right to linking. The fact is, however, that the aim of the right, expressed directly or not, remains the same: to secure remuneration for digital uses of press publications, including linking. If the right is to give press publishers control over uses of their content, it seems only logical to grant this control over the most common means of communication online: linking. Openly distancing the ancillary right from linking results in no consideration of what the CJEU has already held on linking. The ancillary right does not follow the line of the right of communication to the public, but proposes an alternative solution. While at face value this solution is narrow in scope and directed to a limited group of press publishers, due to number of its features, it has considerable potential to influence freedom to link in general. First, the ancillary right operates with broad concepts of a press publication and a press publisher. Neither press publication not a press publisher has a clear-cut meaning; rather those terms can be used in connection to anyone who publishes an informative piece of writing online. Secondly, without a minimum threshold of protection, the ancillary right could apply to all digital uses, including when the press publication involved is non-original or the press publisher’s investment in its creation is insignificant. Last but not least, ancillary right as a copyright-like solution, allows circumvention of the basic copyright principles, such as idea-expression dichotomy, covering works which would never belong to the copyright domain. When considered jointly, those elements create a broad new instrument, answering not only press publishers’ calls, but intervening in functioning of the web itself. Linking has not been adequately addressed by the Proposal. Instead of clarifying the status of link as an act of communication to the public, an additional layer of regulation – the ancillary right – has been proposed. Such double-layering of rights could endanger the consistency of the EU copyright acquis. Both an ancillary right for publishers and the right of communication to the public affect linking. They do so in different ways, by involving various elements of the act of linking, and their application is conditioned by different requirements. Consequently, when applied to a single link the rights can produce diverging results. The rightholder enforcing her rights over a press publication could choose which route to take. She could either pursue her claim on the basis of the right of communication to the public, conditioned by the numerous complementary criteria, or put her trust in the ancillary right, a new right with no threshold of protection. It is likely that the rightholder would select the latter, its application being easier, and the result providing more certainty. Having the ancillary right to lean on, right holders will have less incentive to call for clarification of the scope of right of communication to the public. This would create a situation where a copyright-like measure outdoes an exclusive right harmonized by the InfoSoc Directive. For the sake of consistency and certainty of the EU copyright order, it would be more suitable to address linking within the existing legal framework, and not to regulate it through secondary means, by affecting other aspects of the link than the ones immediately connected to the right of communication to the public. When addressing only secondary aspects of linking, the ancillary right would not provide a straightforward answer to the linking conundrum. It would not address the questions which have already been asked, but implies reliance on the side effects of the right originally aimed at a narrow group of the press publishers. It remains to be seen if and in what form the ancillary right for publishers is adopted at the EU level. The Proposal still needs to be approved by the European Parliament and the Council of the European Union, with relevant votes postponed in time.108 The ancillary right’s effect on linking depends on the scope that the final provision on the right will have. What is, however, important to note is that the clarification of the right of communication to the public is no longer discussed in connection with the Proposal, making it unlikely that this crucial right of the copyright holder will make its way to the new copyright directive. Footnotes 1 In this article terms ‘ancillary right’, ‘ancillary right for press publishers’, ‘publishers’ ancillary right’ and ‘publishers’ right’ are used interchangeably, unless implied otherwise. 2 Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market 2016 [COM(2016) 593 final]. 3 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society  OJ L 167/10. 4 ‘Public Consultation on the Role of Publishers in the Copyright Value Chain and on the “Panorama Exception” – Digital Single Market – European Commission’ (Digital Single Market) <https://ec.europa.eu/digital-single-market/en/news/public-consultation-role-publishers-copyright-value-chain-and-panorama-exception> (accessed 9 May 2016). 5 In this article terms ‘link’ and ‘hyperlink’ are used interchangeably unless implied otherwise. 6 Tim Berners-Lee, ‘Tim Berners-Lee on the Web at 25: The Past, Present and Future’ (WIRED UK) <http://www.wired.co.uk/article/tim-berners-lee> (accessed 2 February 2017). 7 A web address is commonly referred as a URL. URL stands for a Unified Resource Locator. 8 This article focuses on simple links and deep links, forms of links which are usually used by the news aggregators and other similar services. Use of framed links and other similar forms of links which incorporate a part of the referred content into a referring website is not a subject of this article. 9 See Tim Berners-Lee, ‘The World Wide Web: Past, Present and Future’ (August 1996) <https://www.w3.org/People/Berners-Lee/1996/ppf.html> (accessed 29 November 2017). 10 For the purposes of this article term ‘press publication’ will collectively refer to all types of informational content, such as press articles, press releases, blog entries, relating to current events which the public is concerned with, unless implied otherwise. 11 ‘Hamburg Declaration Regarding Intellectual Property Rights’ (Hamburg DeclarationRegardingIntellectualPropertyRights) <http://www.encourage-creativity.org/> (accessed 27 September 2017). 12 Isbell Kimberely, ‘The Rise of News Aggregator: Legal Implications and Best Practices’ (the Berkman Centre for Internet & Society at Harvard University 2010) Research publication 2010–10 2. 13 Andrew Clark, ‘Murdoch’s Attack Dog Snarls at the “Parasites” Threatening His Master’, The Guardian (1 November 2009) <http://www.theguardian.com/media/2009/nov/01/wall-street-journal-robert-thomson-digital-content> (accessed 17 February 2017). 14 See Google Inc v Copiepresse Court of Appeal of Brussels, 9th Chamber 2007/AR/1730. 15 Act on Copyright and Related Rights governed by Article 1 of the Act of October 1, 2013 (German Copyright Act) BGBl. I S. 3728. 16 Law No. 21/2014 of 4 November 2014, amending the Consolidated Text of the Law on Intellectual Property, approved by Royal Legislative Decree No. 1/1996 of April 12, 1996, and Law No. 1/2000 of January 7, 2000, on Civil Procedure (Spanish Copyright Act) 268 Boletin Oficial del Estado, 5 November 2014. 17 Wording follows translation by Prof Dr Michael Grünberger. See presentation during conference ‘Copyright, related rights and the news in the EU: Assessing potential new laws’, CIPIL University of Cambridge, hosted at IViR University of Amsterdam, 23 April 2016. 18 Wording follows translation by Prof Raquel Xalabarder. See presentation during conference ‘European Copyright – Quo Vadis?’ European University Institute, 28–29 April 2017. 19 Emanuela Arezzo, ‘Hyperlinks and Making Available Right in the European Union – What Future for the Internet after Svensson?’ 45 International Review of Intellectual Property and Competition Law 524, 531 (2014). 20 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (n 3) art. 8. 21 Name “Google tax” points at the owner of a widely-known news aggregator Google News, used to emphasize publishers’ desire to have a share in the internet giant revenues. 22 (Addressed to Andrus Ansip and others) ‘Statement on Digital Single Market.’ (5 December 2015) The open letter has been signed by a number of European publishers and their organizations, including Spanish Association of Periodical Publications (AEEPP). 23 ‘Ancillary Copyright for Publishers. Taking Stock in Germany’ (Bitkom 2015), 7. 24 For analysis of effects of ancillary right in Spain see NERA Economic Consulting, ‘Impacto Del Nuevo Artículo 32.2 de La Ley de Propiedad Intelectual. Informe Para La Asociación Española de Editoriales de Publicaciones Periódicas (AEEPP)’ (2015). 25 Tom Hirche, ‘Austria about to Get Ancillary Copyright for Press Publishers’ (IGEL - Initiative Against An Ancillary Copyright) <http://ancillarycopyright.eu/news/2015-06-03/austria-about-get-ancillary-copyright-press-publishers> (accessed 8 February 2016). 26 ‘Save The Link’ </save-link>. 27 ‘Mission Statement’ (IGEL - Initiative Against An Ancillary Copyright) <http://ancillarycopyright.eu/> (accessed 25 November 2015). 28 IGEL response to the Consultation q 10, 16. 29 Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia GaddvRetriever Sverige AB  Court of Justice of the European Union (Fourth Chamber) C-466/12, EU:C:2014:76 . 30 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (n 3) art. 2. 31 Commission of the European Communities, ‘Proposal for a European Parliament and Council Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society’ 16. 32 ‘Opinion on the Reference to the CJEU in Case C-466/12 Svensson’ (European Copyright Society 2013) 6/2013. 33 The International Literary and Artistic Association, ‘Report and Opinion on the Making Available and Communication to the Public in the Internet Environment - Focus on Linking Techniques on the Internet’ (The International Literary and Artistic Association 2013). 34 Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia GaddvRetriever Sverige AB (n 30) . 35 Criterion of a ‘new public’ has been fist established in Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA  Court of Justice of the European Union C-306/05, EU:C:2006:764 . 36 Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia GaddvRetriever Sverige AB (n 30) [18–24]. 37 Ibid 32. 38 Ibid 26. 39 Stichting Brein v Ziggo BV and XS4All Internet BV  Court of Justice of the European Union C-610/15, EU:C:2017:456 . 40 Stichting Brein v Jack Frederik Wullems Court of Justice of the European Union C-527/15, EU:C:2017:300 [31 and 41]. 41 Stichting Brein v Ziggo BV and XS4All Internet BV (n 40) . 42 Ibid 23. 43 Apart from already mentioned complementary criteria there is an additional criterion of technical means different from the ones previously used. It is not relevant to linking as in the CJEU’s opinion ‘internet’ is a single medium. See GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises Inernational Inc, Britt Geertruida Dekker  Court of Justice of the European Union C-160/15, EU:C:2016:644 . 44 See ‘Opinion on the criterion “New Public”, Developed by the Court of Justice of the European Union (CJEU), Put in the Context of Making Available and Communication to the Public’ (ALAI 2014). 45 Mihaly Ficsor, ‘Svensson: Honest Attempt at Establishing Due Balance Concerning the Use of Hyperlinks – Spoiled by the Erroneous “new Public” Theory’, 6 <http://www.copyrightseesaw.net/archive/?sw_10_item=63> (accessed 17 February 2017). 46 Application of the principle of exhaustion to the right of communication to the public has been explicitly excluded. See Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (n 3) art. 3(3). 47 Bernt Hugenholtz and Sam C. van Velze, ‘Communicating to a New Public? Three Reasons Why EU Copyright Law Can Do Without a “New Public”’ 47 International Review of Intellectual Property and Competition Law 797, 809–10 (2016). 48 Ficsor (n 46), 35. 49 Berne Convention for the Protection of Literary and Artistic Works (9 September 1886) as last revised at Paris (24 July 1971) 1161 U.N.T.S. 30, art. 5(2). 50 See International Literary and Artistic Association (ALAI), ‘Report and Opinion on a Berne-Compatible Reconciliation of Hyperlinking and the Communication to the Public Right on the Internet’ (2015) 5–8. 51 ‘News Media Europe Copyright Position Paper’ (News Media Europe 2016) 1. 52 Jean-Claude Juncker, ‘A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change. Political Guidelines for the next European Commission’,12 July 2014. Creation of ‘A Single Digital Market’ was singled out as one of ten key policy areas for the new European Commission. 53 European Commission, ‘Public Consultation on the Role of Publishers in the Copyright Value Chain and on the “Panorama Exception”’. 54 Ibid, question 15. 55 According to the Max Planck Institute lack of features and objectives of the right makes the outcome of the Consultation only partial. ‘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”’, para 3. 56 See EDiMA response to the Consultation q 4, 11. 57 Computer and Communications Industry Association (CCIA Europe) response to the Consultation q 11, 18. 58 European Publishers Council response to the Consultation q 13, 24. 59 See for example responses to the Consultation by Creators Rights Alliance, Stowarzyszenie Wydawców REPROPOL (REPROPOL) and International Federation of Reproduction Rights Organisations (IFRRO). 60 Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (n 2) rec. 31. 61 CIPIL to UK Intellectual Property Office, ‘Call for Views: Modernising the European Copyright Framework’ (12 May 2016) <http://www.iposgoode.ca/wp-content/uploads/2016/12/IPOModernisingIPProfResponsePressPublishers.pdf> (accessed 1 April 2017). 62 Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (n 2) rec. 33. 63 Instytut Wydawców Prasy (IWP), Position of Publishers on the consultation launched by Ministry of Culture and National Heritage on documents published by the European Commission on 14 September the current year concerning modernisation of copyright (Stanowisko Wydawców wobec konsultacji ogłoszonych przez MKiDN w sprawie dokumentów opublikowanych 14 września br. Przez Komisję Europejską i dotyczących modernizacji prawa autorskiego) 12 October 2016, 12. 64 ‘Press Publishers Join Forces to Safeguard Democratic Values in Europe by Making the Case for a Strong European Copyright’ <http://www.magazinemedia.eu/pr/press-publishers-join-forces-to-safeguard-democratic-values-in-europe-by-making-the-case-for-a-stron> (accessed 8 September 2017). 65 ‘Empower Democracy - Support Independent Media for a Strong Europe’ <http://www.empower-democracy.eu/> (accessed 16 February 2017). 66 EPC response to the Consultation q 13, 24. 67 The International Literary and Artistic Association (n 34) 1. 68 Ibid. art. 2(8). 69 Abraham Drassinower, ‘A Right-Based View of the Idea/Expression Dichotomy in Copyright Law’ (2003) Canadian Journal of Law and Jurisprudence 16(1), 3–21. 70 Pursuant to Polish Act on Copyright and Neighbouring Rights (4 February 1994) art. 4(4) simple items of information are not subject to copyright. 71 REPROPOL response to the Consultation q 2, 9. 72 Association of Finnish Newspapers response to the Consultation q 2, 9. 73 Records of the Diplomatic Conference: Convented in Berlin, October 14 to November 14, 1908 in Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and beyond, 2nd edition, vol. 2 (Oxford University Press, Oxford, 2006), 201. 74 Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (n 2) para 32. 75 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases  OJ L 77/20 art 7. 76 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (n 3) art. 2. 77 Infopaq International A/S v Danske Dagblades Forening  Court of Justice of the European Union (Fourth Chamber) C-5/08, EU:C:2009:465 . 78 Ibid 38. 79 Ibid 44. 80 OpenForum Europe response to the Consultation q 13, 15. 81 Saida El Ramly (Director General, EDiMA), “Ancillary copyright and internet freedom”, European Parliament, 28.09.2016. 82 Nexa Center for Internet & Society response to the Consultation q 12, 16. 83 Act on Copyright and Related Rights governed by Article 1 of the Act of October 1, 2013 (n 16) sec. 87(f)(1). 84 ‘A “Legal” Snippet in Germany Could Mean … Seven Words, Maximum – Disruptive Competition Project’ <http://www.project-disco.org/intellectual-property/102715-a-legal-snippet-in-germany-could-mean-seven-words-maximum/#.VsZq8uZ-qMk> (accessed 19 February 2017). 85 Mireille van Eechoud, ‘A Publisher’s Intellectual Property Right. Implications for Freedom of Expression, Authors and Open Content Policies’, Study for OpenForum Europe (2017) <http://www.openforumeurope.org/wp-content/uploads/2017/01/OFE-Academic-Paper-Implications-of-publishers-right_FINAL.pdf> (accessed 11 January 2017). 86 CILIP response to the Consultation q 9, 3. 87 Open Media response to the Consultation q 6, 13. 88 Raquel Xalabarder, ‘Press Publisher Rights in the New Copyright in the Digital Single Market Draft Directive’ (Centre for Copyright and New Business Models in the Creative Economy (CREATe) 2016) Working Paper 2016/15. 89 Ana Ramalho, ‘The Competence of the EU to Create a Neighbouring Right for Publishers’ (University of Maastricht 2016) Working Paper <https://ssrn.com/abstract=2842313> (accessed 29 April 2017). 90 van Eechoud (n 87). 91 Richard Danbury, ‘Is an EU Publishers’ Right a Good Idea?’ (CIPIL 2016) <http://www.cipil.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www.cipil.law.cam.ac.uk/documents/copyright_and_news/danbury_publishers_right_report.pdf> (accessed 20 September 2017); Barabash, Igor, ‘Ancillary Copyright for Publishers: The End of Search Engines and News Aggregators in Germany?’ 35 European Intellectual Property Review 243; ‘Ancillary Copyright for Publishers. Taking Stock in Germany’ (n 24). 92 Questions in the Consultation can be paired as follows: 5 and 6, 7 and 8, 9 and 10, 11 and 12, 13 and 14. Question 4 enquiring about the impact of new neighbouring right on publishers does not include any distinguisher. 93 European Commission, ‘Communication from the Commission to the European Parliment, the Council, the European Economic and Social Committee and the Committee of the Regions Towards a Modern, More European Copyright Framework COM(2015) 626 Final’ 10. One of the goals set by the EC was consideration ‘[…]whether any action specific to news aggregators is needed, including intervening on rights.’ 94 Argument made throughout the response to the Consultation by EDiMA, see for example answer to q 10, 18. See also OpenForum Europe response to the Consultation q 10, 14. 95 Centrum Cyfrowe response to the Consultation q 6, 12. 96 Association of European Research Libraries (LIBER) response to the Consultation q 8, 13. 97 Associazione Italiana Editori response to the Consultation q 6, 13. 98 Communia International Association on the public domain (Communia) response to the Consultation q 6, 13. 99 Fundacja Nowoczesna Polska response to the Consultation q 6, 10. 100 OpenForum Europe response to the Consultation q 14, 16. 101 Spanish Copyright Act, art 32.2. 102 German Copyright Act, par 87f(2). 103 Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (n 2) art. 11. 104 For the full text of the definition see ibid art. 4(4). 105 ‘Eupublishersright | MYTHBUSTER’ (eupublishersright) <https://www.publishersright.eu/mythbuster> (accessed 28 August 2017). 106 See Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property  OJ L 376/28. 107 International Association of Scientific, Technical and Medical Publishers (STM) STM response to Directive on Copyright in the Digital Single Market News Release (14 September 2016). 108 The vote in the EP Legal Affairs Committee (JURI) on the report on the Proposal was originally scheduled for June 2017. On the date of submission of this paper (4 December 2017) the vote is estimated to take place in January 2018. © The Author(s) 2018. Published by Oxford University Press. All rights reserved.
Journal of Intellectual Property Law & Practice – Oxford University Press
Published: Feb 5, 2018
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