Is Harmonization Good If the End Result Is Even More Fragmentation? The Case of Art 15 CDSMD and the Exclusion for ‘Very Short Extracts’

Abstract

Further to a complex and admittedly contentious legislative process, the press publishers' right in Article 15 CDSMD (Directive 2019/790) was adopted. The rationale supporting EU intervention is multi-fold. Recital 54 links the introduction of Article 15 to the need to facilitate press publishers when licensing the use of press publications to providers of ‘new online services’. This, in turn, would serve to support a ‘free and pluralist press’ in its function ‘to ensure quality journalism and citizens’ access to information’. Contributing to the realization of a ‘fair marketplace’ (recital 3) is one of the key objectives of the CDSMD: recital 55 is rooted within an idea of fairness in the part in which it stresses the need to acknowledge ‘[t]he organisational and financial contribution of publishers in producing press publications’. This – in turn – would serve to ‘foster the availability of reliable information’.

Following the expiry of the deadline for the national transpositions of the CDSMD on 7 June 2021 and with the vast majority of Member States having transposed its provisions, including Article 15, the state of copyright harmonization in the post-CDSMD landscape returns a fragmented if not altogether depressing image. With specific regard to the national transpositions of the press publishers’ right, some countries have opted to provide their own definitions of certain key concepts in the EU provision that are instead to be intended as autonomous concepts of EU law (e.g., beneficiaries, addressees, exclusions), while other have opted for problematic modalities through which the right is to be exercised.

By focusing on the exclusion for ‘very short extracts’ of press publications in the fourth sub-paragraph of Article 15(1) and considering some selected national transpositions thereof, this chapter seeks to investigate: (i) whether the fragmentation resulting from the national transpositions of the exclusion for ‘very short extracts’ as a case study for the transposition of Article 15 as a whole will ultimately allow achieving the underlying objectives thereof; and (ii) whether certain national transposition approaches are to be held incompatible with EU law and, should the answer be in the negative, what the solutions for that could be.

The chapter is structured as follows: Section 2 considers the EU preemption doctrine as applied to copyright provisions and identifies Article 15 CDSMD as a provision that requires a minimalistic transposition in national law. Section 3 reviews selected national transpositions of Article 15 with specific regard to the exclusion for ‘very short extracts’, the goal being not to provide an exhaustive overview of all Member States’ legislations, but rather to identify problematic approaches in the fulfilment of Member States’ own obligations under EU law. Section 4 considers the consequences of incorrect transpositions of Article 15. Section 5 concludes. Ultimately the questions posed in the title of the chapter (Is harmonization good if the end result is even more fragmentation?) is answered in the sense that harmonization is necessary but, where the instrument chosen is a directive, it is imperative that national legislatures correctly interpret and act within the freedom afforded to them under EU law.

Keywords: copyright, press publishers' right, EU preemption, EU supremacy, Directive 2019/790, press publishers