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Introduction

On 3 June 2021, the Danish Parliament adopted an amendment to the Danish Copyright Act transposing Directive 2019/790/EU on Copyright and Related Rights in the Digital Single Market (the DSM Directive), Article 15 (the new Press Publishers' Right) and Article 17 (Online Content Sharing Service Providers' Liability for User Generated Content). The amendment introduced two new sections to the Danish Copyright Act. Article 15 was transposed by the new Section 69 a, which is part of Chapter 5 of the Danish Copyright Act on neighbouring rights. DSM Directive Article 17 was transposed by introducing a new Chapter 2b on Online Content Sharing Services.


While much public debate was centred around the controversial liability regime for online content sharing services, this article focuses on the new Press Publishers' Right, which awards press publishers a two-year exclusive right to the online use of their publications.  


To ensure a high level of uniformity, the Danish transposition generally reflects a literal transposition of the DSM Directive. Nevertheless, by the same amendment to the Danish Copyright Act, the Danish legislature introduced a new Section 29a warranting an extended collective license for the specific purpose of this new Press Publishers' Right.


This new specific extended collective license provision is in line with the well-established concept of collective management organisations (CMO) under Danish and Nordic legal tradition. Moreover, the facilitation of the collective management of the new Press Publishers' Right corresponds with the purpose of the DSM Directive to improve publishers' bargaining position when facing the large tech companies on the matter of online use of press publications.    


The new press publishers' right

The "Press Publishers' Right" refers to the press publishers' new exclusive right for online use of their press publications by information society service providers under the DSM Directive, Article 15, and the Danish Copyright Act, Section 69 a. The right expires two years after the press publication is published. The exclusive right applies to all press publications first published after 6 June 2019.


Recent studies published by the Danish Ministry of Culture show that 60 pct. of the Danish population access news online or via apps.  The same studies show that 69 pct. of Danes aged 15-24 years access news through social media platforms, whereas only 22 pct. from the same age group access news through the press publishers' own websites. For the age group 24-35 years, the ratio is 53 pct. for social media platforms against 30 pct. for the press publishers' websites.


While the free flow of information and news supports a democratic society, the online use by information society service providers has created a "value gap" between providers of online services and press publishers. The preparatory works to Section 69a of the Danish Copyright Act list news aggregators, search engines and social media as examples of "information society

service providers".


To ensure fair remuneration of press publishers, Section 69a of the Danish Copyright Act provides that the online use by information society service providers requires the consent or authorisation of the press publishers. If the press publisher itself shares the press publication on the online platform in question, consent is presumed. For other cases of online uses by information society service providers the consent of press publishers must be more express.


Furthermore, Section 69a (2) (i) - (iii) introduces three exceptions to the new Press Publishers' Right. Section 69a (2) (i) excepts private or non-commercial uses of press publications by individual users. Moreover, under Section 69a (2) (ii), the new Press Publishers' Right shall not apply to acts of hyperlinking.  


While online use of parts of press publications are also of economic relevance and therefore covered by the new Press Publishers' Right, Section 69a (iii) excepts the use of individual words or very short extracts. This exception will likely entail the most legal uncertainty, as "very short extracts" is not further defined in neither the DSM Directive nor the Danish Copyright Act. However, leading Danish case law suggests that "very short extracts" must be less than 11 words cf. Danish Supreme Court's judgment of 15 March 2013 in case 97/2007 (Infopaq).


The scope of the exceptions will likely be construed through future case law of the national courts as well as the European Court of Justice.


Cleareance of rights through collective management organisations

As briefly described in the introduction of this article, Section 29a of the Danish Copyright Act introduces a new specific extended collective license provision for press publications covered by the new Press Publishers' Right. The ability to operate such a license with an extended effect is limited to a CMO approved by the Danish Ministry of Culture.


A CMO is an organisation appointed by its members, i.e., the rightsholders, to represent and manage their rights and the use of their copyright protected works or other subject matter. Consequently, the modus operandi for the CMO exists by virtue of the authorization granted by the members of the organisation.


A license with an extended collective effect is defined as an agreement or a license, concluded by a CMO, with effect for the members of the CMO as well as non-members of the same nature. Provided that the CMO is sufficiently representative of the types of works or other subject matter, non-members will also be bound by the license concluded by the CMO.


However, the concept of extended collective licenses is not in any way new under Danish law. In fact, collective licensing is originally a Nordic concept of law, which was first introduced to the Danish Copyright Act in 1961. Ever since, extended collective licenses operated by CMOs have been the preferred mechanism for clearance of rights across various creative sectors. With the digitisation of copyright protected works, collective management has become of continuous importance. By way of example, the CMO Copydan World TV manages the retransmission and use of radio and tv-shows on behalf of rightsholders, including producers, actors, and camera operators, in Denmark.


Outside the context of extended collective licenses, CMOs may also operate solely based on authorisations from rightsholders. The CMO is still required to be sufficiently representative of the relevant types of works or other subject matter. In Denmark, the most well-known example of a such CMO is the Performing Right Society for Danish composers, lyricists and music houses.


Management of rights by a CMO is beneficial to both the rightsholders and the users of the protected works. The CMO negotiates and manages licenses, under which rightsholders are entitled to fair remuneration. At the same time, users are free from obtaining a license from every individual rightsholder of the types of works or other subject matter.


By the adoption of Article 12 of the DSM Directive, the EU seems to have recognized the benefits of the collective licensing with an extended effect. This will likely extend the application of extended collective licenses to member states outside the Nordic countries.


Introducing the Danish Press publishers' collective management organisation

On 2 July 2021, the Danish Press Publishers' Collective Management (DPCMO) was established. The members of the DPCMO consist of more than 35 of the most influential press publishers and media companies in Denmark. The new Danish CMO represents the press publishers and their rights under Sections 69a (DSM Directive Article 15) and 52c (DSM Directive Article 17) of the Danish Copyright Act.


As the new Press Publishers' Right applies to the online use of press publications by information society service providers, press publishers face negotiations with operators of global platforms such as Google Search, Facebook and LinkedIn. By managing the new press publishers right collectively under the DPCMO, the press publishers will have more leverage in such upcoming negotiations.


By comparison, the collective management of the new Press Publishers' Right has proven fruitful in France, where Alliance de la Press d'Information Générale has concluded agreements with both Google and Facebook on remuneration for the online use of press publications within the past year.


At the time of writing, the DPCMO operates on the basis of authorisations from the members, i.e. the press publishers. However, as the DPCMO represents a substantial number of the Danish press publishers, it qualifies for approval by the Minister of Culture under the new collective license provision in Section 29a of the Danish Copyright Act.


Upon such approval, the DPCMO will be the primary point of contact for information society service providers wishing to make use of press publications. By reducing the bureaucracy associated with concluding individual licenses, the DPCMO will support the sharing of news and information online, whilst still ensuring fair remuneration of press publishers as intended with the introduction of the new neighbouring right.  


Martin Dahl Pedersen works within the IP, Media and Entertainment Group of Kromann Reumert, a leading law firm in Denmark. Mr Pedersen became a partner there in 2002. He has many years' experience advising clients in the broad media and entertainment field, particularly within the newspaper, publishing and sports sectors. Mr Pedersen has conducted media and copyright cases of general public importance in which significant principles have been determined, such as the use of digital technology in connection with copyright material and the limits of artistic freedom of expression in relation to the right of privacy. For example, he currently represents the large Scandinavian media conglomerate Aller Media in a controversial principle matter on the protection of journalistic sources in a case where Aller Media is facing criminal charges for abuse of information on celebrities' credit card transactions.

Biographies

DENMARK

Collective Management Organsiations and the New Press Publishers’ Right


Written by Martin Dahl Pedersen & Katinka T.S. Engel,

Kromann Reumert Law Firm

Martin Dahl Pedersen

Katinka T.S. Engel

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Katinka T.S. Engel specialiSes in intellectual property law and offers advice across the sports, media and entertainment industries. She joined Kromann Reumert's team for Sports, Media and Entertainment in 2021 as an assistant attorney. Ms Engel graduated from the University of Copenhagen in 2021 after writing her Master's thesis on online content sharing platforms and the EU Copyright Directive. Ms. Engel also studied a semester at Boston College Law School, USA. She assists Martin Dahl Pedersen on several matters related to intellectual property and media law, including a number of pending legal proceedings. Ms Engel is also the main point of contact at Kromann Reumert for publishing houses seeking legal advice via the trade association "Danish Publishers".

 

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On 3 June 2021, the Danish Parliament transposed Article 15 and 17 of the DSM Directive into Danish Law. This article examines how the new press publishers' right will be applied in Denmark by using the familiar concept of collective management organisations in a digital context.

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