Copyright issues surrounding press clippings

Law 23/2006, which incorporated the EU InfoSoc Directive (2001/29/EC) into the Spanish legal system, introduced into the Copyright Act the complex regulation of press clipping activities. The new regulation has led to certain lawsuits pending before the courts.

Before the 2006 reform, Article 32 of the Copyright Act provided that compilations from newspapers made in the form of press clippings were considered to be citations. This provision was protected by Article 10.1 of the Berne Convention, which considers collections from newspapers to be protected by the law in the form of press clippings.

The 2006 reform maintained this provision, but amended it as follows:

“Nevertheless, when articles from newspapers are compiled which basically consist of their mere copying and said activity is performed for commercial purposes, the author who has not expressly opposed will have the right to receive adequate compensation. In the event of express opposition of the author, said activity will not be considered to be protected by this limit.”

This provision relates to companies that track or handle information and that base their business activity on using news published in newspapers. In Spain, such companies are typically known as "press clipping companies" because their activity is based solely on press clippings.

After the 2006 reform, any press clipping activity performed for commercial purposes is given new legal treatment. There are two possibilities. First, if the author tolerates or allows the press clipping, he or she has the right to receive adequate compensation from the company performing that activity. The law does not provide that this right to compensation must be mandatorily managed on a group level, although it seems clear that the only effective way of enforcing this right is through a collecting society. Second, if the author objects to the press clipping, the company must cease this activity. Once the author has oppposed it, the press clipping activity is no longer protected by the limit and is subject to the author's exclusive right.

The main interpretive problem raised by the regulation is the identity of “the author” to whom the rule refers. Most case law considers that “the author” is the physical person who created the newspaper article (ie, the journalist). This opinion is based on the fact that according to the Copyright Act, the author is the physical person who creates a literary, artistic or scientific work. However, a minority opinion contends that “the author” is the company that edits the newspaper. This opinion is based on the fact that the newspaper is a collective work and it is the editor who holds all the IP rights – not only over the collective work as a whole, but also over all the individual contributions that form it.

Two judgments of the Madrid commercial courts adopted this second interpretation and considered that the editor, rather than the author, has the right to oppose press clipping activities. One of these judgments has been appealed to the Madrid Provincial Court, so the final outcome is not yet known.