Enforcing copyright through antitrust? The strange case of news publishers against digital platforms

Abstract

The emergence of the multi-sided platform business model has had a profound impact on the news publishing industry. By acting as gatekeepers to news traffic, large online platforms appear to be unavoidable trading partners for news businesses and may exert substantial bargaining power in their dealings. Concerns have been raised that this bargaining power imbalance may threaten the viability of publishers’ businesses. Notably, digital infomediaries are accused of capturing a huge share of the advertising revenue by free-riding on the investments made in producing news content. Moreover, by affecting the monetization of news, the dominance of some online platforms is deemed to have contributed to the decline of trustworthy sources of news. Against this background, governments have been urged to intervene in order to ensure the sustainability of the publishing industry. The EU has decided to address publishers’ concerns by introducing an additional layer of copyright as a means to encourage cooperation between press publishers and online services. And the French Competition Authority has recently accused Google of adopting a display policy aimed at frustrating the objective of the domestic law implementing the EU legislation, hence requiring Google to conduct negotiations in good faith with publishers and news agencies on the remuneration for the reuse of their protected content. The Australian Competition and Consumer Commission has instead embraced a regulatory approach, developing a mandatory bargaining code. The aim of this article is to analyse the different solutions advanced in order to assess their economic and legal justifications as well as their effectiveness.