Release of OFE academic paper – “A publisher’s intellectual property right: Implications for freedom of expression, authors and open content policies”

11 January 2017

Author: OpenForum Europe

The Commission’s public consultation in 2015 on an “ancillary right” for publishers has raised substantial legal and policy questions about the need for, nature and effectiveness of a separate legal right for publishers to control and/or monetize the use of content published by them. Many questions were raised, stakeholders expressed their views, yet a lot of legal and practical uncertainties remained unanswered. In order to bring more clarity and assess the implications for such a new right, we have commissioned this academic paper to Prof. Dr. Mireille Van Eechoud. Its purpose is to unpack the key legal arguments in favour and against the introduction of additional IP rights for publishers.

The findings show that even if the existence of market failure was sufficiently clear, and existing copyright not a good enough instrument to address it, the larger question is whether the introduction of an exclusive right in the content of periodicals as we traditionally have known them makes sense in light of changing readership habits. Moreover, not only might the introduction of such a broad right backfire on journalists and the press as users of information, but it could also have an impact on existing open data and open science policies, impact which should not be neglected.

The paper also addresses the need to recognize that to create exclusive rights in information for publishers is necessarily to interfere with the freedom of expression of others and such a regulatory intervention needs to contain a clear assessment of the pressing social need which such a right would serve, of its proportionality and of alternative solutions.

With respect to press publishers’ right as an alternative means to enforce copyright, the paper addresses the argument that if enforcement is substantially hindered by the fact that publishers often are not initial owners of copyright, but licensees or successors in title (and thus need to be able to prove when challenged that they are entitled to enforce), then much less drastic solutions could be conceived.

You can read the full paper in our Library here.

Dr. Mireille van Eechoud is Professor of Information Law at the Faculty of Law’s Institute for Information Law (IVIR), University of Amsterdam. She was visiting scholar to Cambridge University (2009-2012). She was overall project leader of the HERA of authorship and originality joint research project, as well as principal investigator for the Amsterdam project on the Work as Creative Expression. Thedevelopment of European copyright norms has been a long standing research interest, as is access to information and the conflicts of laws.