Presentation
The Senate’s Culture Committee has adopted the Socialist bill aimed at creating a neighboring right for the benefit of news agencies and publishers. Such neighboring rights in France would generate at least €200 million for publishers and news agencies.
Neighboring rights of press publishers
The evolution of search engines, and in particular their content presentation, has led to the practice of “crawling” and indexing. Historically, this simply involved a hyperlink pointing to a news article. Today, search engines and indexing sites display all or part of the content of these articles on their websites without any compensation to the publisher.
The “crawlers” can then profit commercially from the indexed news articles without any financial investment.
In response, the concept of extending neighboring rights—protections for rights holders—to press publishers has emerged, allowing them to grant licenses for the use of articles online.
Based on intellectual property, a report by the European Parliament’s Committee on Legal Affairs published on March 10, 2017, encouraged the creation of a right of legal action offering publishers a basis to fight against the unjustified reuse of articles published on their site and to defend their investments.
Neighboring rights and collective management of press rights
After passing through the Senate in September 2018, a bill on this subject was introduced in the National Assembly on January 24th, reintroducing the creation of a “new neighboring right to copyright for the benefit of press publishers and news agencies.”
Like Article 11 of the future European directive, it aims to establish a right to remuneration for these publishers and agencies, subjecting to authorization the “reproduction and communication to the public” of texts, images, photos, and videos that have been the subject of journalistic processing. These authorizations would be managed through a collecting society that could negotiate, notably with the GAFA (Google, Apple, Facebook, Amazon).
The remuneration rights, valid for 20 years, would apply not only to search engines but to all websites. A penalty of three years’ imprisonment and a €300,000 fine is proposed for infringers.
Intellectual property: Prelude or alternative to the future European directive
The text’s entry into force date—three months after its notification to the European Commission—would allow for a potential failure of negotiations with the European Commission, the author of the highly controversial directive, or failing that, “serve as a basis for its swift transposition.”
It remains regrettable that the proposed law postpones addressing certain types of content, notably “simple hyperlinks accompanied by isolated words,” which are currently under discussion and which the European Parliament plans to exclude.
2020 Update: Welcomed by advocates for media groups, the French legislature ensured the transposition of the new directive on neighboring rights, particularly Article 15, through Law No. 2019-775 of July 24, 2019.
Effective October 25, 2019, online public communication services must now obtain the publisher’s or news agency’s permission to reproduce or distribute a press publication, in whole or in part.
However, in accordance with exceptions regarding intellectual property and copyright, this right does not apply to hyperlinks or the use of isolated words or “very short extracts” from a press publication, although the implementing law did not set a word threshold.
The legislator has been particularly zealous in enshrining provisions not included in the directive, such as the obligation to mention the names of the authors of an audiovisual work on the media used to distribute the work (Article 20 bis of the draft law).
