Published April 10, 2024 | Version v1
Working paper Open

Bargaining in the Shadow of the Press Publishers' Right

  • 1. ROR icon University of Glasgow

Description

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.

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