Introduction
Initially, the introduction of a new neighboring right for press publishers on the EU level through Article 15 Digital Single Markets Directive (the DSM Directive) attracted less (media) attention than the controversy around ‘upload filters’ and Art.17 DSM-Directive sparked a heated public debate among fundamental rights activists, user associations and the general public – and even caused mass demonstrations for a ‘free internet’ (see our blog here).
Since then, however, the adoption of Art. 15 DSM-Directive has caused heated debate, and increasingly the implementation laws themselves move into the focus of the discussion and disputes – and are now subject to challenges. Most EU member states have opted for a more or less verbatim transposition of Art. 15 DSM-Directive. Others, such as Italy and Belgium, went further: in addition to granting press publishers a neighboring right in their publications, these member states implemented supplementary provisions aimed at securing that information society service providers negotiate – and ultimately pay – for licenses. As this is not foreseen in Art. 15 DSM-Directive, it is not surprising that these gold-plating efforts have been the target of criticism and subject to judicial review. In two recent cases, courts in Italy and Belgium have referred questions around this ‘Art. 15 gold plating’ to the CJEU. The CJEU will now have to decide whether national legislators have leeway to adopt such supplementary provisions or whether such attempts are simply incompatible with the DSM-Directive and the basic EU principles (eg, the principle of Freedom of Contract rooted in Art. 16 of the Charter of the Fundamental Rights of the European Union, the EU Charter).
Press publisher’s rights
According to Art. 15 DSM-Directive, member states must introduce a neighboring right for press publishers regarding the online use of press publications by information society service providers (ISSPs). Art. 15 DSM-Directive was introduced to facilitate the licensing for online use of these publications and encourage the organisational and financial contribution of publishers in producing press publications. Art. 15 DSM-Directive defines certain parameters for the new right (it shall, in particular, not apply to private or non-commercial uses, to hyperlinking and in respect to the use of individual words or very short extracts of a press publication).
Art. 15 DSM-Directive is generally understood to establish a system of maximum harmonization regarding press publishers rights, which means that national legislators cannot expand or delimit its scope. In this context, Art. 15 DSM-Directive merely obliges member states to allocate new exclusive rights that are conclusively pre-determined in European copyright law, namely the InfoSoc Directive, to a group of rightholders (ie press publishers). As a general principle, such rights do not entail additional rules on negotiation and remuneration mechanisms. This raises the question whether member state legislators are permitted to adopt such supplementary gold-plating provisions which are not foreseen in the Directive.
Italian implementation
The first challenge to a national implementation law of Art. 15 DSM-Directive was brought before the competent administrative court (TAR Lazio) in Italy. Ultimately, the court stayed the proceedings and referred three questions concerning the interpretation of Article 15 to the CJEU (TAR Lazio, Judgment of 12 December 2023, file number 18790/2023; CJEU, file number C-797/23). The Italian legislator transposed Art. 15 DSM-Directive in Art. 43-bis of the Italian Copyright Act. In addition, the Italian Communication Authority (AGCOM) adopted a supplementary regulation (Resolution No 3/23/CONS).
In combination, this implementation departs and clearly goes (well) beyond the text of Art. 15 DSM-Directive:
- It foresees an obligation for ISSPs to pay ‘fair remuneration’ for press content, to enter into negotiations with publishers, to provide these publishers and the regulatory authority with the necessary information to determine fair compensation, and to refrain from restricting the visibility of publisher’s content in search results pending completion of negotiations; and
- It grants AGCOM the authority to identify the benchmark criteria for determining fair compensation and – in the absence of an agreement between the parties – the power to determine the exact amount of fair compensation.
The referral questions by the TAR Lazio raise the question whether these broad obligations are precluded not only by Art. 15 DSM-Directive, but also the principles of Freedom to Conduct Business (Article 16 EU Charter), of free competition (Article 109 TFEU) and the principle of proportionality routed in Article 52 of the EU Charter.
Belgian implementation
A further challenge was raised against the Belgian implementation law of Art. 15 DSM-Directive before the Constitutional Court of Belgium (CCB). With its very recent decision of 26 September 2024 CCB stayed the proceedings and referred 13 questions concerning the implementation of Art. 15 and 17 DSM-Directive to the CJEU (CCB, Judgement of 26 September 2024, file number 98/2024).
While the other referral questions raise very relevant points concerning other areas of the DSM-Directive, we focus here on the first three referral questions concerning the implementation of the press publishers right. In a nutshell, the Belgian legislator adopted a similar approach to the Italian legislator: According to Art. XI.216/1 and XI.216/2 of the Belgian implementation law, ISSPs are obliged to negotiate in good faith over the remuneration for the use of press publications. Quite similar to the AGCOM-proceeding in Italy, the Belgian Institute for Postal Services and Telecommunication (IBPT) can decide on the amount of remuneration upon request by either party if no agreement is reached within four months of negotiation. Moreover, ISSPs are obliged to provide press publishers with up-to-date, relevant and comprehensive information on the exploitation of press publications.
As a result, the Belgian implementation law touches upon similar points – and raises similar concerns – as the Italian law: is it permissible to go beyond the text of Art. 15 DSM-Directive and establish a negotiation obligation overseen by an authority? Is it in line with the principles of freedom of contract and proportionality to establish a rate-setting procedure and statutory information claims?
Unsurprisingly, the CCB now asks the CJEU for guidance on the admissibility of the Belgian law in light of Art. 15 DSM-Directive and relevant fundamental rights, ie, the Freedom to Conduct a Business (Art. 16 EU Charter), the Principle of Equality before the Law (Art. 20 EU Charter) and the Principle of Non-Discrimination (Art. 21 EU Charter).
Outlook
Both the Italian and Belgian transposition laws go very far in establishing mandatory negotiation (and remuneration) provisions for press publishers rights. Since none of this is foreseen or rooted in Art. 15 DSM-Directive, the Belgian and Italian legislators have clearly moved into an area of uncertainty and it may ultimately show that they’ve overstepped the limits set by Union law.
An enforceable obligation to license is not a familiar concept in copyright law, would considerably affect the freedom to contract and is not addressed in the Directive. In addition, considering that most other member states have not introduced such rules, these implementations contribute to a fragmentation of the framework for press publishers’ rights across the Union. This runs contrary to the EU legislator’s intention which - through concepts like the country of origin principle - seeks to avoid situations where information services have to comply with varying standards throughout the EU. It also raises the question whether rules such as the ones implemented in Belgium and Italy constitute - in any event - ‘technical rules’ which would have required a prior notification of the EU Commission. It will therefore be interesting to see how the CJEU will assess these issues, and a clarification by the CJEU providing pan-EU legal certainty will be crucial: given the current uncertainties tied to such national implementations of Art. 15 DSM-Directive, their practical application carries significant risks for all parties involved.
Stakeholders are well advised to closely monitor the further developments, because the CJEU’s decisions will likely not only have an impact on the Italian and Belgian transposition laws, but may ultimately also affect the interpretation of implementation laws in other EU member states.
