The proposed press publishers' right aims to provide news publishers with an additional layer of copyright protection. Following a number of controversial national initiatives, such as the German and Spanish laws on news aggregators (the so-called ‘Google tax’), it aspires to offer a solution to the so-called ‘newspaper crisis’. However, the proposed right is not an appropriate measure for addressing declining revenues in the press publishing sector in Europe. There is no hard evidence that the right can achieve its stated objectives, notably to facilitate rights clearance and enforcement in the press publishing industry, and its scope and duration are excessive. The protectable subject matter is defined more broadly than what the Commission seems to intend, and the right is designed to cover a number of digital activities beyond hyperlinking, such as scanning, indexing, posting snippets, certain forms of text mining, and headlines embedding links. This could have the effect of affording protection to information rather than original subject matter, possibly resulting in a monopolisation of information that goes against the principles of copyright protection.
Although the distribution right, under EU copyright, is exhausted after the first sale of works in the EEA with the rightholders’ consent, exhaustion does not apply to the right of communicating works to the public and hence to the online resale of digital goods. This impacts on consumer welfare and market economy as it does not allow the development of secondary markets for digital goods. However, two cases of the Court of Justice, UsedSoft and Svensson, leave the question of ‘digital’ exhaustion open. Should digital exhaustion apply and, if so, to what extent would this be normatively feasible? In anticipation of the Tom Kabinet judgment, which is expected to shed light on these questions, this chapter argues that there would be much to be gained from ensuring that the traditional benefits of the exhaustion principle are preserved online. Exhaustion has longstanding benefits in protecting the EU freedoms of movement, ensuring access, enhancing competition and innovation and enabling transactional freedom. Despite these benefits, there are normative impediments to the application of digital exhaustion, mostly because the notion of exhaustion is attached to tangibility. These may be overcome through a purposive understanding of tangibility, leading in certain cases to a meaningful equivalent of ownership of content in the online environment.
Maurizio Borghi and Stavroula Karapapa
With the advent of mass digitization projects, such as the Google Book Search, a peculiar shift has occurred in the way that copyright works are dealt with. Contrary to what has so far been the case, works are turned into machine-readable data to be automatically processed for various purposes without the expression of works being displayed to the public. In the Google Book Settlement Agreement, this new kind of usage is referred to as ‘non-display uses’ of digital works. The legitimacy of these uses has not yet been tested by Courts and does not comfortably fit in the current copyright doctrine, plainly because the works are not used as works but as something else, namely as data. Since non-display uses may prove to be a very lucrative market in the near future, with the potential to affect the way people use copyright works, we examine non-display uses under the prism of copyright principles to determine the boundaries of their legitimacy. Through this examination, we provide a categorization of the activities carried out under the heading of ‘non-display uses’, we examine their lawfulness under the current copyright doctrine and approach the phenomenon from the spectrum of data protection law that could apply, by analogy, to the use of copyright works as processable data.