The Emperor Has No Clothes: How the Press Publishers’ Right Implementation Exposes Its Shortcomings

Abstract

This article discusses the implementation of the press publishers’ right introduced by Art. 15 of the Directive on Copyright in the Digital Single Market (CDSM). It analyses Member States’ transpositions through the lens of the legislative intent of the EU legislator, who aimed to strengthen the press publishers’ bargaining position towards digital intermediates while preserving users’ freedom to share information online. The article argues that the implementation process further exposes the shortcomings of the press publishers’ right and its unfitness to deliver the goals set. The negotiation basis that the right provides is neither clear, nor capable of correcting bargaining imbalances, as it is unable to force relevant platforms to the negotiation table. The extension of the scope of the press publishers’ right to social media is questionable, as it inherently influences users’ freedoms. The article cautions against the implementation of the press publishers’ right in a way that mimics the solutions endorsed in the competition law-based bargaining codes with the excess of implementation freedoms provided by the CDSM Directive.