Back in July, the Committee on Industry, Research and Energy (ITRE) of the EU parliament suggested a few changes to the Commission's initial proposal for a new publisher's right. One of them is to remove the explicit exception for academic and scientific publications as found in recital 33 of the draft directive. This combined with the already extensive COM proposal would result in a tremendous threat to Open Content and Open Access publishing.

A thicket of rights

Open Content and Open Access publishing are on the rise. Every day, thousands of authors, musicians, academics, artists, scientists etc. license their works under public licenses like Creative Commons. Hereby they voluntarily enable a free use of their music, articles, photos and other content. This trend leads to an ever-growing commons of knowledge that is publicly available for everybody. The very foundation of this development is that the authors are able to decide on their own about the conditions for the use of their works.

This initial situation would change if the EU enacted a publisher's right. This right, no matter if you call it an ancillary right or a neighboring right, adds an additional layer of rights on the content that copyright already protects. The publishers publishes an academic's text and – ta-da! – is awarded an own, generally independent, protection right. So, now the text is double-protected: One right belongs to the author and the other to the publisher. Since the text and its publication are indistinguishable from a legal perspective suddenly two layers of rights for the same subject matter accrue that have two different right holders. It is obvious that these rights will interfere. And this is going to be a huge problem.

Effects on Open Access

At this time, nobody can predict what effects the publisher's right would have on the copyright/author's right in detail. Even less clear is how an introduction of such a right would affect Open Content and Open Access licensing. Obviously nobody has spent much thinking on this specific issue.

No Open Content license in the world considers an ancillary copyright for press publishers

One obvious side-effect would be the legal uncertainty that will arise about the question whether or not publisher's rights are covered by established licenses like Creative Commons (CC). Imagine this constellation: An author has published his academic paper in an Open Access repository after first publication in a scientific journal. Both parties agreed on the second publication. Suddenly the new retro-active neighboring right for academic and press publishers comes into force. The effect is that the publisher receives his own exclusive right in the paper. A right that never existed before. 

Here are some of the questions that would arise: Can the Open Access publication of this paper still be used under the Open Content license? Has the publisher a right to stop its use? Can his rights be considered as implied licensed although the right did not even exist when the publisher made his publishing decision? 

Nobody can answer these questions which are essential for the legality and effectiveness of Open license decisions. No existent Open Content license considers publisher's rights explicitly and it is very doubtful that they fit seamlessly into the current licensing schemes. Until the licenses are not revised (which can take years) there will be plenty of legal uncertainty.

Collision of the author's and the publisher's rights

The unclear relationship between a publisher's right and the author's right would cause much more detriments. If every sentence, headline, paragraph is protected by a publisher's right how can I – as an author – write and publish with legal certainty? How can I know whether this or that phrase is not already protected?

Open publications would be particularly threatened by such insanely extensive protection. Being freely available on the Internet they are totally exposed to law enforcement. One can easily imagine the rise of business models for copyright (or rather publisher's right) trolls who screen web publications for alleged infringements and sue authors and other publishers.

The prerogative rule (Art. 11 para 2)

The EU wants to prevent interferences between the author's and the publisher's right in favor of the author by providing a clause you could call a “prerogative rule”. Simply put it shall mean: If an author's and a publisher's right interfere, the author's right trumps the publisher's right. 

You will find the wording in the commission's proposal in Art. 11 para 2: 

“The [publisher's right] shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. Such rights may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated.”

This prerogative rule in the legal text is backed up by recital 35 that reads:

"The protection granted to publishers of press publications under this Directive should not affect the rights of the authors and other rightholders in the works and other subject-matter incorporated therein, including as regards the extent to which authors and other rightholders can exploit their works or other subject-matter independently from the press publication in which they are incorporated. Therefore, publishers of press publications should not be able to invoke the protection granted to them against authors and other rightholders. This is without prejudice to contractual arrangements concluded between the publishers of press publications, on the one side, and authors and other rightholders, on the other side."

This rather odd solution – as simple and straightforward it might seem at first glance – needs further analysis. Already a second brief glance reveals its major flaw: According to the last sentence, the prerogative rule can be overruled by contract. This decision will lead in a very large number of cases to the effect that the principle of the author's prerogative is turned upside down. Far most authors who contract with a publisher cannot determine the contractual rules for the licensing, publication and remuneration. Just think about free journalists, photographers or translators. They sign what they are given by the publisher. And the publishers will overrule the prerogative on a general basis in their standard author contracts.

This leaves those cases where non-professionals and the rare professional authors publish exclusively themselves. Here, normally no publisher is involved (so no publisher's right exists) or the author is also the publisher and both rights are in the same hands.

But there are still numerous cases of (simultaneous or non-simultaneous) double publications, like in the above mentioned Open Access scenario. Here, the prerogative rule has to prove its worth. The problem is, however: It leaves all relevant questions open. It is utterly unclear what legal effect the rule is supposed to have on particular constellations. That is a real problem. Fact is that all publications consist of, mostly copyright protected, content that was created by authors. Every time something gets published by a third party (which meets the broad definition of a news, academic or other publisher) this fundamental conflict between the copyright and the publisher's right will occur.

Let's make a publisher's right quiz on the basis of the Commission's proposal including the ITRE amendment, shall we? Answer the following questions and you will be awarded the title “copyright wizard”. Take it as a basic assumption that the author has not already waived his prerogative by signing a standard publishing agreement of the publisher.

• Does the prerogative rule give the author a right to veto exploitation decisions of the publisher? What if the author's contribution is only one among those of many other authors (like other articles on a news site)?
• Can the author prevent the publisher from suing an aggregator for using snippets of her texts? 
• Does the publisher generally need the consent for any use/exploitation/enforcement of his neighboring right? 
• Does the author need to be consulted in acts of enforcing the publisher's right, e.g. in court proceedings when a potential conflict of interests arises?
• How and who can define what relevant conflicts of author's and publisher's rights are? In other words: Where does the prerogative rule kick in? 
• What if the publisher ignores the author's prerogative? Are there legal remedies that the author can invoke to stop the publisher? Where are they regulated? What are they like?
• Can a user of an Open Content that was published later on by a publisher invoke the prerogative rule as a defence when the publisher wants to stop her re-use of the work? 
• Can the author of the Open Content hinder the publisher to sue his Open Content users? Is there a right to defend them and where is it regulated?

I could phrase myriads of other questions I have no answers to. I would not earn the title apparently and I doubt that there is anybody who could. The resulting legal uncertainty would affect first and foremost the authors. Until every relevant question is solved (if ever) it would take decades full of lawsuits and court decisions.

Open Access and Open Content publishing would be affected in particular because they are practiced in the majority of cases by legal laypersons who cannot and will not consult lawyers. Overcomplicated legal systems are poison to such methods of publishing. One could ask: Might this be the very reason, academic publishers ask for a publisher's right in the first place?

Eroding the public domain

Even if the prerogative rule would effectively protect the authors vis-à-vis the publishers, it would not protect the interest of the general public. 

The publisher's right will in any case undermine the public domain, which is particularly important for Open Access and Open Content publishing like e.g. at the Project Gutenberg or the Internet Archive. That aspect might not be overly important for mere news content but it certainly is for scientific works. 

Works that are already in the public domain have no rights owner who could pull the prerogative rule in his favor. Meaning: If someone publishes a work that was already in the public domain he will be rewarded with a new monopoly right for the next 20 years. This problem is already caused by the German “Lichtbildschutzrecht” (the right in simple photographs) as the Wikipedia had to learn painfully just recently.

Just imagine what harm would be caused to the public domain if any (re-)publication of works – academic publications in particular – that are out-of-copyright could be re-protected and therefore appropriated for 20 years. The restriction of the term of protection under copyright would become obsolete. 

Here's how I exemplified this effect on Anne Frank's diary before:

“It is hotly debated whether and where it [Anne Frank’s diary] becomes public domain (i.e. copyright-free) this year [2016]. If book publishers had neighboring rights, free re-publications of the diary would most likely be impossible forever. […]. If publisher's rights were granted for 50 years after the publication, a 1999 edition of Anne Frank’s diary would block re-publications until 2050. If another publisher makes a new edition in 2020, this right would expire in 2070. And so on.

The example shows a number of significant issues: Who owns the publisher’s right in Anne Frank’s diary? The first publisher and/or any later publisher? Would any later publisher need to get a license from the first publisher? What would the right exactly protect? The layout of the book, the text itself, the edited version, all of these things…?”

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