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Copyright recommendations for the next European Commission (2024-2029)

News Media Europe is the voice of the progressive news media industry in Europe, representing over 2,700

news brands in print, online, radio and TV, through national associations from sixteen countries. Together,

we defend key principles which are vital to us: protecting the freedom of the press, championing the digital

future of our industry, and ensuring that the value of content is properly protected.

Recommendations

News Media Europe supports a targeted reopening of the Copyright in the Digital Single Market (DSM)

Directive1 as long as changes remain focused and improve the position of rightsholders from the existing

law. Our recommendations are:

1) Creating a licensing market in the context of generative artificial intelligence (GAI): Proprietary

content is exploited at an unprecedented scale by AI systems (e.g. OpenAI) to train large language

models (e.g. ChatGPT), surface content for users and develop the next generation of search

engines (generative search). The Artificial Intelligence (AI) Act clarifies that this type of use must

be subject to transparency obligations and authorisation, unless exceptions apply. This is a very

good first step, yet insufficient. The DSM Directive needs a targeted improvement to tackle AI

issues, reflecting that:

i) Prior authorisation from rightsholders is required for using protected content to

train GAI systems, or as part of the output generated by GAI systems;

ii) GAI systems must be accountable to the principle of fair remuneration;

iii) Remuneration proposals from AI companies must be put forward within clear and

reasonable timeframes, to avoid delay tactics.

2) Protection and recognition of the value of press content for the quality of AI outputs. Given the

uncertainty of how the technology and GAI products will develop, we need future-proof

legislation to protect press publications through the different variations of AI. Large language

models (LLMs) will power a variety of applications and press content will be used and exploited in

many ways. The question not only focuses on the training of the LLM but also on the essential

role of professional journalistic content for the quality of the output. Recreating a fair value chain

that supports the financial viability of the press and its independence is essential.

3) Introducing a presumption that copyrighted content is included in AI models: The use of quality

information and editorial content, which cater for perfect training data, is no longer an

assumption, it is stating the obvious. Tech companies have scraped copyrighted works at an

industrial scale, raising claims for the largest copyright infringements in history, as pointed out by

the New York Times investigation2. The Intellectual Property Rights Enforcement Directive (IPRED)

1 https://eur-lex.europa.eu/eli/dir/2019/790/oj 2 How Tech Giants Cut Corners to Harvest Data for A.I., 6 April 2024, The New York Times

News Media Europe vzw, 35 Square de Meeûs 1000 Brussels, Belgium - BE0647900810 EU Transparency Register ID: 577812220311-81

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should include a presumption that copyrighted works feed into AI models, reversing the burden

on AI developers to prove that they do not infringe intellectual property or have made the

necessary licensing arrangements3. This will be made possible through transparency obligations

under the AI Act, revealing ideally at a granular level which datasets the models are trained on.

The Danish government has already endorsed this proposal made by its tech expert group (see

the report).4

4) Text and data mining (TDM) of press publications should function on the basis of opt-in, not

opt-out: The TDM provisions of the DSM Directive were not designed to deal with GAIs. In light

of the slow and uneven development of opt-out solutions, the Commission should reconsider

whether Article 4 is fit-for-purpose. This includes whether opt-outs are an inappropriate burden

to be placed on press publishers, the lack of shared standards, the granularity in existing opt-out

solutions and the legitimate interests of news media. We suggest a corrective review of the

Directive (Article 4.3) to ensure that text and data mining of “press publications”5 is based on

press publishers’ opt-in. It must be emphasised that the reservation of rights should not result in

retaliation exercises by platforms leading to loss of visibility for news sites.

5) The TDM exception should not be used to circumvent copyright law. When enforcing Article 3,

it must be clear that the copyright exception benefits solely research organisations, within the

stated boundaries of “scientific research” purposes, and cannot be used to create technology or

services that will be commercially exploited. By extension, public-private partnerships must not

be used to escape transparency and remuneration obligations by commercial players. All in all, it

must be clear that the enforcement of the TDM exception should not threaten the viability of

journalism.

6) Creating a European standard for the remuneration of press content: The European press sector

was very much encouraged by the decisions6 of the French competition authority and the

validation of Google’s commitments7 in France. The Commission should consider integrating such

rulings into European law. For instance, it should be clear that remuneration under the press

publisher right (Article 15 of the DSM Directive) and remuneration under commercial partnerships

(e.g. Google News Showcase) are distinct. Also, platforms must commit to “good faith”

negotiations and data-sharing obligations necessary for the assessment of content value (e.g.

direct and indirect advertising revenues), with a principle of continued display of press content

during the talks. This point is particularly important to ensure that citizens continue to have access

to news, compared to ongoing blockings in other jurisdictions8.

3 Some press publishers might be willing to engage in talks to make licensing possible on a technical level, without halting the development of responsible AI. 4 Boundaries for big tech's development and use of AI.pdf (em.dk) 5 Within the meaning of Article 2(4) of the Copyright DSM Directive 6 Decision 20-MC- 01 of April 09, 2020 and Decision 21-D-17 of July 12, 2021 7 https://www.autoritedelaconcurrence.fr/en/press-release/related-rights-autorite-accepts-googles-commitments 8 Google blocks California news in response to bill that would force tech giants to pay, NPR, 12 April 2024

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7) Enforcing the press publisher right through binding arbitration: A harmonised framework for

negotiations is needed, based on:

i) A relevant contact point for copyright negotiations at technology companies;

ii) An obligation for platforms to share adequate data about the reuse of press

content and revenues derived;

iii) The possibility for binding arbitration, in the absence of agreements within a

certain timeframe;

We need a harmonised negotiation framework, ensuring that press publishers are treated on an equal

footing across Europe. To this end, remuneration talks should be backed by a competition tool, for

instance in the Digital Markets Act (DMA)’s alternative dispute resolution mechanism9. In Australia for

instance, the threat of arbitration led to the successful conclusion of 30 agreements in the first year

following legislation10. In comparison, in Denmark, despite the best efforts of the mediator, Meta and Tik

Tok refused to negotiate, which de facto stalled the work of the mediator. In Belgium and Italy where

arbitration exists, copyright laws are being challenged by platforms. A harmonised arbitration system

would bring legal certainty and support the enforcement of the DSM Directive.

8) Facilitating the creation of collective management organisations: In order to increase press

publishers’ bargaining power, the neighbouring right is largely managed collectively by existing or

new collective management organisations. While this process takes time, it has proved

particularly difficult in markets where press publishers do not have the resources to set up such

complex and innovative structures or where administrative red tape hampered any progress.

Collective management should be accessible for press publishers who need it. Therefore the

creation of CMOs should be facilitated by the regulators, while the administrative and accounting

obligations should remain reasonable.

Explanatory statement

Building on the work of the previous European Commission, News Media Europe’s objective is simple:

ensuring the economic viability and the availability of independent quality journalism. The role of a diverse

and free press is more important than ever. Europe's democracies are challenged. Disinformation and

influence operations are likely to grow in force and magnitude, assisted by new technologies, such as GAI

and social networks. A free and professional press is the most important tool to share credible information

and create fact-based public debates, that are essential to our democratic societies.

To ensure the economic viability of journalism, press publishers need better control over how to monetise

their intellectual property. Enforcing intellectual property rights remains a challenge. First, because tech

9 The European Commission could interpret the FRAND terms in order to establish some key principles (e.g.

transparency, data-sharing) and provide press publishers with stronger bargaining power vis-a-vis big tech. 10https://ministers.treasury.gov.au/ministers/stephen-jones-2022/media-releases/government-implement-all- recommendations-news-media

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giants circumvent the press publishers’ neighbouring right. Second, because AI is disrupting business

models and may soon alter the way press content is consumed.

Journalistic content is being reused for the training of LLMs and GAI systems, without any approval. The

transparency obligations of the AI Act are helpful, but remain incomplete. The use of press content by

LLMs should be subject to clear prior authorisation and fair remuneration. In this regard, it is

unreasonable to put the burden on rightsholders for opting-out from text and data mining, when the

impact of such TDM is so consequential.

Moreover, it is crucial to give teeth to the press publisher right. In the conformity assessment of the DSM

Directive, it is important to assess whether transposition laws promote the effectiveness (“effet utile”) of

the neighbouring right. The reality is that some large platforms abuse their dominant position to

circumvent the application of the right, forcing competition authorities to intervene.

In France for instance, the competition authority validated a commitment procedure binding on Google

to conduct good faith negotiations. In Germany, following a decision of the competition authority, the

Arbitration Board of the German Patent and Trademark Office was asked to set a copyright tariff. In Spain,

the competition authority recently opened an infringement procedure. Despite the helpful decisions

delivered so far, it should not be left to competition authorities to interpret copyright law. This approach

is unfair to press publishers who do not have the time, financial and human resources to pursue such

complex and lengthy procedures. Legal proceedings actually postpone the time when press publishers get

remunerated, meaning that newsrooms risk their financial sustainability and very existence pending legal

adjustements. This approach is also leading to fragmentation across member states.

Lastly, the effectiveness of the neighbouring right also depends on the ability for press publishers to be

equipped with sufficient bargaining power vis-a-vis large online platforms that distribute or reuse their

content, for instance via collective management.

Contacts:

Wout van Wijk (Executive Director): wout.vanwijk@newsmediaeurope.eu

Aurore Raoux (EU Policy Manager): aurore.raoux@newsmediaeurope.eu