The Fading Boundaries between the Law of Copyright and the Regulation of Media Markets

The paper investigates the hybridization between copyright law and the regulation of media markets, fostered by the recently enacted Media Freedom Act of the EU (a proposal at the time of writing). From its very beginnings, the law of copyright has been in a kind of an intermediate space between the domains of public and private law. The Statute of Anne was a reform of the regulation of the printing industry and of the books trade. The underlying philosophy of the copyright clause of art. 1.8 of the US Constitution emphasized the link between the exclusive right granted to authors and the public interest task to “promote the Progress of Science and useful Arts”. Although intellectual property is generally considered private law, statutory law of copyright often includes criminal law provisions, and sets up entities empowered with public law prerogatives, aimed at granting efficient enforcement and management of rights. The need to adapt copyright law to digital technologies led to reforms inspired by a market regulation approach, like EU directive 2019/790, whose title IV reads “measures to achieve a well-functioning marketplace for copyright”. Although the directive is a piece of copyright legislation, it clearly aims at regulating market relationships, such as those between publishers of “press publications” and information society service providers, right-holders and web-based distribution platforms, content producers and authors/performers, with a primary view to public interest targets.