Fighting the tech giants – news edition: Competition law’s (un)suitability to safeguard the press publishers’ right and the quest for a regulatory approach
As part of the ongoing debate on value-sharing for creators and users of online content, press publishers were granted a neighbouring right under EU copyright. This entailed an opportunity to obtain remuneration through licences for the use of online journalistic content by online aggregation services.
However, the right’s lack of efficiency became visible when press publishers in France, the first country to implement the right, attempted to enforce remuneration for Google’s use of snippets. Google demanded zero-remuneration licences or would abstain from using snippets from news webpages, which has proven to lead to decline in webpage traffic. Accordingly, the press publishers were still not seeing the promised remuneration. Since the strong market position of Google appeared to enable the ultimatum, the publishers claimed the behaviour infringed competition law, constituting an abuse of dominance.
This article argues that EU competition law cannot be relied on to ensure remuneration under the press publishers’ right. This argument is, firstly, based on an analysis concluding that practices similar to that of Google – forcing zero remuneration licences - do not constitute an abuse of dominance under Article 102 of the Treaty of the Functioning of the European Union. Secondly, the argument is founded on the conclusion that competition law, de lege ferenda, should not be applied for such purposes, as the goal of competition law does not warrant securing remuneration. Moreover, it is suggested that the fairness standard, which some argue is becoming a benchmark in EU competition law, is not a steering principle in itself, but rather that fairness is the result of correct competition law enforcement.
Lastly, the article maps the alternative regulatory approaches initiated in the EU (Digital Markets Act), Australia (Mandatory Bargaining Code) and the US. This is done to assess whether these solve the problem of press publisher remuneration and to explore the implications of regulation for competition law.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]