Looking back at the press publisher right to fair compensation in 2023 and looking forward to 2024
Published on 29th Jan 2024
As implementation of the European Copyright Directive continues, we look at the most recent developments and at what is coming down the track
The European Copyright Directive (the ECD) came into force on 7 June 2019. One of its key goals, described by the European Commission, was to protect press publications, reducing the perceived "value gap" between profits made by internet platforms and content creators.
Article 15 of the ECD (also known as the "link tax" or "neighbouring right for press publishers") aims to give press publishers more control over the use of their content online. It grants publishers the right to seek compensation for the online use of their news articles by online platforms and aggregators.
However, it has been a controversial provision, with concerns raised about its potential impact on freedom of information and the sharing of news on the internet.
The implementation of the ECD has been fairly slow, although 2023 saw a flurry of implementation across several Member States, as set out below, and it is nearing full implementation in 2024.
Looking back at 2023
Looking back at 2023, there was a great deal of activity across Europe as internet platforms hammered out deals with publishers. After significant delay, most of the remaining Member States transposed the ECD into local law.
In addition to this progress, 2023 also saw the first legal actions invoking the press publisher right being commenced against platforms – most notably against Twitter (now known as X).
Some of the main highlights from 2023 include:
The ECD was implemented in Finland on 27 February, as the Finnish Parliament approved amendments to the Finnish Copyright Act and the Act on Electronic Communications Services, which became effective on 3 April 2023.
France’s Agence France-Presse (AFP) and Le Figaro began legal action against Twitter to receive payment for news content shared on the platform. Both publishers are seeking to enforce the press publisher right to fair compensation against the social media platform.
In 2023 the Italian Communication Authority adopted a regulation setting out the criteria for the determination of "fair compensation" due to press publishers for the use of their press publications by information society service providers.
The Latvian Parliament adopted amendments to Latvian copyright law on 23 March 2023, implementing the ECD. These became effective on 5 April 2023.
On 23 March 2023, the Polish government published a revised draft Act to implement the ECD, the Draft Act Amending the Act on Copyright and Related Rights and Certain Other Acts, no. UC103.
This has not yet been adopted by the government or Parliament, although it is expected to be adopted by both. This process may take several months.
The ECD was transposed into the Portuguese legal framework on 19 June 2023 through the enactment of Decree-Law no. 47/2023, which closely followed the previous draft bill proposed in 2021, Proposed Law 114/XIV/3.
Sweden implemented the ECD through five amendments to Swedish law which entered into force on 1 January 2023.
Looking forward to 2024
Only Bulgaria and Poland are yet to transpose the ECD into local law.
We anticipate that in 2024 there will be many more licensing deals struck between news aggregators and publishers – however there will be added complexity as licensing deals relating to use of generative AI will also potentially interact with these deals.
2024 will also probably see further changes to copyright laws outside of Europe, following the direction of increased protections for press publication use online, as has been seen in Canada under the Online News Act.
Important developments to watch include the California Journalism Preservation Act, which has been introduced as a bill, and New Zealand's prospective Fair Digital News Bargaining Bill.
If you would like to discuss any of the issues raised in this Insight, please get in touch with your usual Osborne Clarke contact or one of our experts below