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Response from the European Publishers Council to the first evaluation of Directive 96/9/EC on the legal protection of databases

10th March 2006

The European Publishers Council (EPC) is a high level group of leading European media corporations whose interests span newspapers, magazines, books, journals, online database and internet publishing as well as in many cases significant interests in private television and radio. A list of our members is attached.

The EPC welcomes this further opportunity to provide input to the Commission's Evaluation of Directive 96/9/EC on the Legal Protection of Databases. Please note that several of our Members will be responding directly with regard to the Commission's request for economic data.

The EPC considers that although there are aspects of the Directive which are worthy of review, overall, the Directive has successfully achieved its core objective of striking a balance of interests and protecting the investment of producers. We therefore continue to oppose strongly any reduction in the scope of protection of the sui generis/database right and support the status quo as we foresee long-term benefit for publishers from the sui-generis database right as more and more content is made available online. This view is supported by our more detailed comments set out in our position of 15th September 2005. In addition we wish to emphasise:

1. The unauthorised exploitation of publishers' news and classified advertising databases is technically easy for "free-riders". The sui generis/database right is an important tool for publishers, over and above copyright protection, when providing high quality data and content to the public, especially in an electronic form.
2. Without an appropriate sui generis right, reasonable protection for investment by the publishers would be absent and out of step with the original purpose of the Directive.
3. According to the recital 39 of the Directive it "seeks to safeguard the position of makers of databases against misappropriation of the results of the financial and professional investment made in obtaining and collection the contents by protecting the whole or substantial parts of a database against certain acts by a user or competitor". EPC wishes to underline that this need is today even more important than it was in 1996 due to ever increasing competition in the internet market.
4. The importance of database and sui generis protection cannot be underestimated for free online news information. Any weakening of the database protection would, therefore, threaten the long-term viability of free online news provision.
5. Although several of our members together with other publishing organisations will be providing data, the EPC considers that evidence on the economic impact of sui generis protection in stimulating the production of European databases does not tell the whole story about the importance of adequate protection of publishers' investments. In the publishing industry many other reasons also affect the decision to start a new business or project; e.g. an online newspaper or classified advertising website. Sui generis database protection works in tandem with copyright and trademark protection. Incidence of "free-riding" would in our view increase in the absence of legal protection for the database.
6. The overall message from a decision to abolish the database directive or any protection guaranteed by the directive would be contrary to the Commission's stated goals regarding the development of a European information society and the competitiveness of European publishing industry.
7. Quite simply, there would no advantages to the European content business from abolition but many disadvantages to publishers and the European information society as a whole. The EC should not in our view give any such signal that any copyright or IPR law is unnecessary or counter-productive to economic growth.
8. The definition of a database is not, and should not be, confined to any particular medium. Newspapers and magazines are considered as databases (at least in many European countries). Therefore, not only paid-for online information but also free online news information provision forms a database.
9. The Commission could review the implications for publishers of evolving case law. The EPC would be pleased to participate in such a review.

In conclusion we wish to underline our support for Option 4.

It is noteworthy that in section 1.5 of the Introduction, the Commission has referred to this fourth option of maintaining the status quo saying: "The Evaluation therefore concludes that leaving the Directive unchanged is an additional policy option for the Commission. The argument could be made that, despite its limited effectiveness in creating growth in the production of European databases, the Directive does not impose significant administrative or other regulatory burdens on the database industry or any other industries that depend on having access to data and information. In addition, the ECJ in November 2004 significantly curtailed the scope of the "sui generis" protection, thereby pre-empting concerns that the right negatively affects competition."

We would add that by withdrawing sui generis/database protection, the Commission would be going against better regulation principles in a situation where the main interested parties are largely satisfied with the status quo. Furthermore the publishing industry would be subject to unwelcome and additional administrative burden and cost in order to adjust to a new regulatory regime during and following withdrawal. Thereafter, businesses would be subject to lack of legal certainty and differing legal situations across the internal market particularly when seeking cross-border investments.

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On behalf of the members of the European Publishers Council

Chairman: Mr Francisco Pinto Balsemao, Chairman and CEO, Impresa, Portugal

Members:
Mr Kjell Aamot, CEO, Schibsted, Norway
Ms Sly Bailey, Chief Executive, Trinity Mirror plc, UK
Sir David Bell, Chairman, Financial Times Group, UK
Mr. Jose-Maria Bergareche, CEO, Vocento, Spain
Mr Aldo Bisio, CEO RCS Quotidiani S.p.A Italy
Mr Carl-Johan Bonnier, Chairman, The Bonnier Group, Sweden
Mr Oscar Bronner, Publisher & Editor in Chief, Der Standard, Austria
Dr Hubert Burda, Chairman and CEO, Burda Media, Germany
Dr Carlo Caracciolo, President, Editoriale L'Espresso, Italy
Mr Juan Luis Cebrian, CEO, Groupo Prisa, Spain
Sir Crispin Davis, Chief Executive, Reed Elsevier,
Dr Matthias Doepfner, Chief Executive, Axel Springer Verlag, Germany
Mr Leslie Hinton, Executive Chairman, News International, UK
Dr Stefan von Holtzbrinck, Verlagsgruppe Georg von Holtzbrinck GmbH
Mr Tom Glocer, Chief Executive, Reuters plc
Mr Steffen Kragh, President and CEO, The Egmont Group, Denmark
Dr Bernd Kundrun, Chief Executive, Gruner + Jahr, Germany
Mr Christos Lambrakis, Chairman & Editor in Chief, Lambrakis Publishing Group, Greece
Mr Murdoch MacLennan, Chief Executive, Telegraph Group Ltd, UK
Sir Anthony O'Reilly, Chairman, Independent Newspapers PLC, Ireland
Ms Wanda Rapaczynski, CEO, Agora, Poland
Mr Jaakko Rauramo, Chairman and CEO, SanomaWSOY Corporation, Finland
Mr Gerald de Roquemaurel, Chairman and CEO, Hachette Filipacchi Medias, France
Mr Michael Ringier, President, Ringier, Switzerland
The Rt. Hon. The Viscount Rothermere, Chairman, Daily Mail and General Trust, UK
Mr A.J. Swartjes, CEO, De Telegraaf, Netherlands
Mr Antoine de Tarle, Chief Executive, Société Ouest-France S.A., France
Mr Christian van Thillo, Chief Executive, De Persgroep, Belgium
 

Executive Director: Angela Mills Wade

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