[Guest Book Review] Publishers’ Rights and Copyright Law
Jocelyn Bosse
[Guest Book Review] Publishers’ Rights and Copyright Law
Jocelyn Bosse Friday, November 14, 2025 - Book review, copyright, press publishers' right, Simone Driusso
The IPKat has received and is pleased to host the review of Publishers’ Rights and Copyright Law by Michalina Kowala. This book review has been prepared by Simone Driusso, who did his dissertation on press publishers' rights while studying for his Master of Laws at University of Trento. Here’s what Simone writes:
This is a review of the book, Publishers’ Rights and Copyright Law: Safeguarding Access to Information and Media Pluralism (Routledge, 2025), by Michalina Kowala.
The aim of the book is to discuss the so-called press publishers’ right granted under Article 15 of the Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market (CDSM Directive) within the context of access to information and media pluralism. The monograph is divided into four chapters: (1) Access to information and media pluralism in the technological, economic and legal context – introductory remarks, (2) Related rights to press publication in light of the CDSM Directive and national law, (3) Exclusive rights of press publishers in light of the CDSM Directive and national laws, and (4) Press publishers’ rights in the context of access to information and media pluralism – conclusions and recommendations.
Access to information and media pluralism in the technological, economic and legal context – introductory remarks
The first chapter opens with a reflection on the interplay between the main fundamental rights involved in the production and dissemination of news content – on one side, freedom of expression (Article 10(1) of the European Convention on Human Rights and Article 11 of the EU Charter of Fundamental Rights) and, on the other, the protection of Intellectual Property (Article 17(2) of the EU Charter of Fundamental Rights).
Subsequently, the author outlines the economic structure of the press publishing industry. News outlets have been facing a prolonged crisis in the last decades. As a result of the decline in circulation of newspapers’ physical copies, publishers have adopted new business models to transition into the digital environment. In this context, Information Society Service Providers (ISSPs), such as Google, play a pivotal role by offering services such as search engines and news aggregators. These services are typically developed through the extraction of portions of protected content, often without the prior consent of rightsholders. The commercial interaction between ISSPs and press publishers is described in the book as "nuanced". On the one hand, online intermediaries increase the visibility of press publishers’ content (a crucial feature for small and local publishers). On the other hand, however, digital platforms foster economic dependence and subject news outlets to the conditions they impose.
Related rights to press publication in light of the CDSM Directive and national laws
The second chapter begins with an explanation of the general rationale behind the complex system of related rights within the copyright framework – namely, to protect and reward the investments undertaken by various actors involved in the cultural industry’s value chain, such as performers, phonogram producers, and broadcasting organisations.
The chapter then explores the specific reasons that supported the introduction of a new EU-wide press publishers’ right after some previous negative national attempts in Germany (2013) and Spain (2014). One of the main rationales was to contribute to the proper functioning of the public debate in democratic societies by strengthening the legal position of news outlets vis-à-vis ISSPs.
The last part of the chapter examines the key elements employed by the European legislator to shape the boundaries of the new exclusive right, including the concepts of "press publication", "publisher of press publications", and "very short extracts of press publication". The chapter concludes by focusing on the issues related to the term of protection and to the provision on the "appropriate share of revenue" for authors of works incorporated in a press publication, with frequent references to the Polish and French national implementations.
Exclusive rights of press publishers in light of the CDSM Directive and national laws
The third chapter analyses the scope of the publishers’ rights. By referring directly to Article 2 and Article 3(2) of the Directive (EU) 2001/29 of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the Information Society (InfoSoc Directive), Article 15(1) grants publishers the rights of reproduction and making available to the public for the online use of their press publications by ISSPs. According to the author, the provision is controversial, as it draws on erga omnes exclusive rights (such as those assigned by the InfoSoc Directive), while specifying that the new entitlements have a substantial inter partes nature – i.e. they can be invoked only against certain specific entities, namely ISSPs.
Following an overview of the notion of Information Society Service Providers and of the main limitations and exceptions encompassed by Article 15, the chapter explores the role of (optional) collective bargaining within the framework of the new related right.
The final part of the chapter discusses the various strategies enacted by Member States to ensure the effectiveness of the press publishers’ rights. Indeed, the fully exclusive dimension of the right is paired with its waivable character. This is why many countries have sought to strengthen the position of news outlets, aiming to prevent ISSPs from exploiting their market power by negotiating free license agreements.
In France, publishers’ associations immediately filed complaints with the competition authority (Autorité de la concurrence), arguing that Google’s refusal to negotiate constituted an abuse of economic dominance under both domestic and EU law. Other Member States – such as Italy, Belgium, Poland, Spain, and Czech Republic – were influenced by Australia’s sui generis News Media Bargaining Code (2021), and implemented Article 15 by empowering national administrative authorities to oversee the bargaining process between publishers and ISSPs, and to determine the remuneration for the use of press publications in cases where the parties fail to reach an agreement. In this regard, the author warns about potential flaws arising from the legal combination of the two approaches, noting that "copyright and competition law regimes differ significantly".
Press publishers’ right in the context of access to information and media pluralism – conclusions and recommendations
The first part of the final chapter examines the economic impact of press publishers’ rights. The author highlights the difficulty of assessing whether the European solution has effectively achieved its intended goal of solving the market failure that allegedly affected news pluralism and freedom of information. Beyond the fact that Article 15 did not aim to tackle several technological challenges affecting the financial stability of the press industry, this uncertainty is also due, on one side, to the substantial exclusion of small outlets with weaker bargaining power from negotiations. Furthermore, the absence of any provision mandating transparency in contractual agreements means that even the few that have been signed often remain confidential.
An additional feature introduced by Article 15 is the multiplication of layers of Intellectual Property protection. Publishers, in fact, benefit complementarily from the protection afforded by the related rights, next to that already granted for collective works. According to the author, this overlap contributes to facilitating judicial protection for rightsholders, who are not required to prove the transfer of the rights over the individual works included in the press publication.
The chapter continues by assessing the legal grounds on which Article 15 constitutes a legitimate interference with freedom of information, according to three parameters enshrined in EU law: prescription by law, pursuing of a legitimate aim, and compliance with the principle of proportionality.
Nonetheless, several concerns remain. Notably, users may suffer an indirect negative impact if, for instance, an ISSP decides to stop making press publications available online, due to the high remuneration demanded by the publisher. Moreover, although the substantial inter partes nature of the new related right is accompanied by safeguards – including the exclusion from its scope of very short extracts and individual words, hyperlinks, and private or non-commercial uses by individual users –, these limitations must not be construed restrictively, as such an interpretation could result in an obstacle to the free flow of information. Additionally, it is worth noting that many Member States require ISSPs to guarantee the online visibility of content from publishers engaged in negotiations with them.
The final pages of the book discuss several critical points related to national implementations of the publishers’ right involving administrative authorities.
First, the criteria prescribed by various Member States to national authorities for calculating remuneration – such as the popularity, the topic, and the size of the news outlet – may risk damaging media pluralism by over-representing larger publishers to the detriment of smaller ones.
Second, due to the reluctance of ISSPs to share the information needed to bargain in good faith with publishers, many Member States have imposed mechanisms to redress the imbalance between the parties, including data-sharing obligations and expert assessments. The effectiveness of these measures remains to be confirmed in practice, along with their compliance with the margin of discretion permitted under the CDSM Directive.
Finally, a further aspect that could challenge the compatibility of several national transpositions of Article 15 with the CDSM Directive and broader principles of EU law, including freedom of contract, is the power granted to independent bodies to determine the remuneration due within mediation mechanisms. This matter is currently under scrutiny in two cases pending before the CJEU (notably, in July 2025, Advocate General Maciej Szpunar issued his Opinion in one of them, following a request for a preliminary ruling submitted by the TAR Lazio, an Italian administrative court of first instance).
Overall thoughts
The measures introduced by Article 15 – aimed at addressing the crisis in the newspaper industry and rebalancing the economic relationship between press publishers and online platforms – have been widely debated by several legal scholars in recent years. This contribution offers a fresh critical perspective on the issue, grounded on the very rationale underpinning the European legislative intervention: the intention to promote media pluralism and freedom of information by strengthening the press sector. Without overlooking the positive aspects of the new ancillary right, this monograph provides a comprehensive analysis of the crucial shortcomings connected with this new entitlement and its national implementations. From a broader perspective, the book appears to challenge the growing legislative trend of pursuing policy and market objectives beyond the traditional scope of Intellectual Property through the expansion of exclusive rights and monopolies in the digital environment.
Details
Publisher: Routledge
Extent: 254 pages
Format: Hardback
ISBN: 978 1 032 97471 2
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