News content and news snippets in the cities of the future
Since the beginning of the 90s, when the Internet started to gain wide popularity, the digitisation of businesses and social interactions gave life to the notion of the “global village”, as people from opposite sides of the world became able to communicate in seconds, with just a click. This idea of a global village made the world smaller and exposed people to greater diversity in their consumption of food, music, art, and news.
Globalisation has changed the media sector; instead of local or national news, we are now consuming global news, whether it be on sports, politics, or culture. The digitisation of press content presents users with a wider variety of news choices, increasing pluralism. Nevertheless, the media sector also faces new challenges, emphasised by the digital setting. Among these, I would highlight the rapid spread of fake news, given that most fake news items have clickbait titles making them trendier. It is also worth mentioning the economic distress news companies are facing, with readers not being willing to pay for digital subscriptions to access news articles, as they did in the past to buy newspapers.
The city of the future will be further digitised and, consequently, further globalised. News will keep playing a central role in our lives as people feel an ever greater need to stay informed about their surrounding context, both near and far. People currently rely on online news platforms to keep updated, as these online platforms use personalisation techniques to provide tailor-made content aligned with the reader’s interests. Furthermore, the media sector is focused on diversifying news content, to cater to all audiences and keep the user’s attention – which translates into keeping the user interested in clicking the news articles.
In the future, it is expected that the media sector will evolve with the help of AI, namely, with news being further personalised to the individual reader, subscriptions becoming subject to dynamic pricing and it being easier to identify fake news and deepfakes.
Getting to the main point of this insight, there is no official definition of the term “news snippet” or, as it is referred to in the new Copyright in the Digital Single Market Directive (Directive (EU) 2019/790, hereinafter CDSM Directive), of “very short extract”. However, its characteristics can help us reach some conclusions on its interpretation.
A snippet is a very short sample taken from the original journalistic piece, often used under a search result to give readers a sense of the topic of the news article, so they can decide if the article is relevant to them or not.
From a legal perspective, the subject matter of copyright protection in the media sector brings many concerns, specifically regarding headlines and news snippets and the rights of reproduction and making available to the public.
News aggregators usually use algorithms to collect news from press publishers’ websites, compile them according to subject matter, and share the hyperlinks to news websites, accompanied by a short representative extract of the press articles (snippets) and often also including a miniature picture. The popularity of news aggregators is related to the simplicity of their format, providing users with a “daily overview” of news stories, according to their topics of interest.
News snippets can also be used by newspapers themselves or by third-party news aggregators. The Guardian, for example, uses snippets within its website to give further context to a journalistic piece, making it more understandable and, thus, empowering news readers. Google News, as another example, uses third-party content (amongst others, articles from The Guardian) to compile a selection of news of the day for Internet users.
Copyright problems arise in this latter scenario, when a platform/news aggregator uses resources that are not their own. According to copyright regulation, such use would require the authorisation of the rights holder, be it the newspaper publisher or the journalist authoring the article.
New EU rules on news snippets: Article 15 of the CDSM Directive
The CDSM Directive addresses the copyright protection of news snippets in its article 15. The provision introduces a new type of protection for press publications in the digital environment, recognising the exclusive rights of press publishers to use their content online and the need to request their permission before using their content.
In practice, this means that news aggregators, whose business revolves around compiling newspaper articles, now need to ask for permission from (and, most importantly, pay a fee to) newspaper publishers.
According to Recitals 54 and 55, such right allows publishers to better recoup their investments, promoting the economic sustainability of the press sector, which is a key aspect of ensuring quality journalism, media pluralism, and the fundamental rights of press freedom and access to information.
Despite Article 15 being a mandatory provision, thus increasing legal certainty across the entire EU, there are contrasting opinions on it. On the one hand, some publishers positively welcome the new rule, following their complaints about the unauthorised use of their content by free-riding online platforms. Not only was their content being used for monetisation purposes by other websites and companies, but this also meant that some readers would be satisfied with the snippets, not clicking on the hyperlink leading to the full journalistic piece on the publisher’s website, thus decreasing their online traffic, an issue which Article 15 of the CDSM Directive aims to solve.
On the other hand, many news publishers and several legal scholars directed criticisms against this provision. These mostly point out that the Directive proposal lacked an accurate economic impact assessment and is likely to hurt competition and freedom of information by creating an entry barrier to small companies that cannot afford to pay to use press content. It is worth noting that the findings of a study performed by the European Commission showed the positive impact of news aggregators on press publishers’ returns as well as media pluralism.
The opinions amongst scholars, policymakers, and some press publishers are somewhat in agreement that this provision does not fully resolve the issue of ensuring quality journalism and that other solutions should have been considered, such as subsidies, tax facilities or larger allocations of public funds to the media sector, unrelated to copyright regulation.
Do all news snippets require authorisation to be shared online?
Article 15 excludes from its scope the use of “very short extracts of a press publication”. Recital 58 pushes for a strict interpretation of this phrase, stating that such short extracts do not clash with the difficulty of recouping the investment, but guaranteeing that this interpretation cannot undermine the effectiveness of press publishers’ right.
The (strict) interpretation of the notion “very short extracts”, which is neither defined in the Directive nor in many of the national legislations implementing it (see for example here and here), will need to be established based on a case-by-case analysis by the national judicial authorities. The main problem arising here is the risk of this interpretation falling into a “copyright trap” of giving protection to facts, news of the day, or minimal pieces of press information, which, by way of international law, are outside the scope of copyright protection.
Silvia Scalzini summarised this specific legal issue by stating that «Too a strict interpretation of the notion could lead to an exercise of such [press publisher’s] rights that may disproportionally affect not only the fundamental right of online service providers to conduct their business but also “everyone’s fundamental right to freedom of expression and information”. »
Taking into account the lack of a clear legal definition, having a set of guidelines to help determine the scope of the right would be the best possible option to avoid problems of compliance with international legal obligations and legal fragmentation in the EU. For example, with the Portuguese implementation of the CDSM Directive still pending, it is important to note that explicitly excluding the use and communication of facts and news of the day from the scope of Article 15 and providing a list of examples of short extracts that would fall within or outside the scope of this article seems a necessary step towards legal certainty.
It is important to understand that, based on article 15 of the CDSM Directive, press publishers are still allowed to waive their rights or authorise the free use of their content by news aggregators, essentially providing free licenses of their work. This is important since, as aforementioned, the implementation of this article met with mixed opinions, with some publishers highlighting the work of news aggregators and how they were positively impacted by them. To sum up, the provision of article 15 brought much attention from scholars and professionals to the legal aspects involved in the media sector and rightly so, given the expected increasing popularity of news aggregators. With people’s busy lives, news readers nowadays expect to be informed as swiftly as possible – with news snippets catering to this expectation – and to be able to easily access news that appeal to their interests (i.e., personalised to them) – which news aggregators offer. Nonetheless, we cannot forget about publishers and journalists as they are the rights holders when it comes to copyright issues. More importantly, the national implementation in Member States of article 15 should not be taken lightly since these news services and aggregators, catering to a global audience, need legal certainty to decide on which terms they will provide news snippets to users.