Bargaining in the Shadow of the Press Publishers' Right

Furgal, U. and Kretschmer, M. (2024) Bargaining in the Shadow of the Press Publishers' Right. Working Paper. CREATe, Centre for Regulation of the Creative Economy. (doi: 10.5281/zenodo.10948500).

Abstract

The press publishers’ right (granted under Art. 15 of the EU’s 2019 Directive on Copyright in the Digital Single Market) equips publishers with a legal basis for negotiations with digital intermediaries. However, the process of bargaining has not been specified by the EU legislator, who left it at the discretion of EU Member States and the market. This paper constructs the four main approaches to the operationalisation of the press publishers’ right in the EU, in contrast with the bargaining framework that evolved in Australia without the underpinning of a new intellectual property right. It analyses those five frameworks in the light of the ‘bargaining in the shadow of the law’ perspective, to understand the relationship between statutory law and private bargaining as mediated by institutional frameworks. By defining and coding key parameters concerning the bargaining parties, their endowments (bargaining chips), measures to mitigate dependencies and the role played by the authority (such as a regulator), the paper shows that bargaining frameworks sit as complex institutional constraints between pure private ordering and the law. It is the shape of the bargaining framework which matters for the range and the frequency of the agreements between press publishers and digital platforms.

• Item Type: Research Reports or Papers (Working Paper)
• Additional Information: The research has been supported by ‘Rethinking Media Law and Policy for Europe’, a project led by the Centre for Information Law (IViR) at the University of Amsterdam, and funded under a research grant from Microsoft. Details are available at: https://www.ivir.nl/projects/news-and-media-law-in-europe/.
• Keywords: copyright, press, press publishers' right, online platforms, bargaining, related rights, CDSM
• Status: Published
• Glasgow Author(s) Enlighten ID: Kretschmer, Professor Martin and Furgal, Dr Ula
• Authors: Furgal, U., and Kretschmer, M.
• Subjects: K Law > K Law (General)
• College/School: College of Social Sciences > School of Law
• Publisher: CREATe, Centre for Regulation of the Creative Economy
• Copyright Holders: Copyright © 2024 The Authors
• Publisher Policy: Reproduced under a Creative Commons license

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