Austrian mandatory collective licensing – no thank you

The Austrian government has recently notified the European Commission it intends to amend its transposition of the EU Copyright Directive and to introduce mandatory collective licensing for news publishers’ neighbouring rights under Article 15. This goes against provisions in the agreed Copyright Directive and will lead to fragmentation in the Digital Single Market, as well as being unfair towards smaller publishers! We call on the Commission to stand by its position that this amendment is incompatible with EU law.

Contradicting the exclusive right for publishers – Article 15 of the Copyright Directive clearly states publishers have the exclusive right to authorise or prohibit any communication to the public of their content. This means the Directive gives all publishers – big or small – the right to autonomously decide how to let their content be discovered and how they want to make money with that content. Making it mandatory for publishers to license their rights through a collecting society is in stark contrast with the nature of this right.

Mandatory collective licensing systems’ negative track record – We recall all too well the extremely negative experiences small publishers had in Spain when a system of mandatory collective licensing was imposed in 2015, resulting in many small publishers complaining to the government that their ability to do business was being severely hampered. Worse still, small publishers did not receive the remuneration they were expecting from the collecting society, and even saw their internet traffic decrease by 11%.

Harmony of the Digital Single Market – One further issue with Austria’s efforts on mandatory collective licensing is that they would lead to fragmentation of the Digital Single Market. As the obligation to obtain a license through a collecting society would apply to all outlets in Austria, it would make it impossible for publishers and platforms to conclude licenses across European borders. In practice, this means that content licensed in for example Italy or Germany, would have to be made inaccessible in Austria, until an agreement is found with the Austrian collecting society. This would result in duplication of work and bureaucracy, as well as restrictions on the availability of news inside the EU.

Member States are not allowed to implement Article 15 through a mechanism of mandatory collective management

Commissioner Breton on behalf of the European Commission, 9 November 2020

Up to the Commission – The European Commission has until 3 March 2022 to issue a response. We know the EU executive has in the past explicitly stated such provisions are incompatible with the Copyright Directive: Commissioner Breton wrote in response to a parliamentary question in 2020 that “Member States are not allowed to implement Article 15 through a mechanism of mandatory collective management”. We call on the Commission to stand by its position from 2020, and reiterate that Austria’s proposed amendment is incompatible with EU law.

The future of publishing – EIMP advocates for an environment that fosters innovative and modern ways of managing content rights. Imposing only one possible way to manage rights fundamentally limits the freedom of publishers to make use of their rights as they see most fit, preventing them from establishing new distribution partnerships that are suitable for their publications.

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