Control or Compensation: Distorted Narrative and Aftermath of Article 17 CDSM

Abstract

Abstract This article analyses the value gap argument and the legislative outcome of Art. 17 of the Directive on copyright in the Digital Single Market (CDSM). The analysis is based on a qualitative content analysis of key documents related to the value gap problem and entitlement analysis of the property and liability rules character of Art. 17. The central theme of this article is the conflict between control and compensation. This ties into Peukert’s communication culture concept, which emphasizes exclusivity or access. Control and compensation are vital elements in the property and liability rules framework. The first part explores the roots of the value gap argument and its connection to the proprietary paradigm of copyright. The content analysis of the value gap argument shows that it is built upon the property narrative of copyright. The second part examines Art. 17 through the lens of property and liability rules, drawing on the framework developed by Calabresi and Melamed. The results show that Art. 17 has a mixed character, with a dominant property rule. However, when the real market dynamics are considered, the analysis reveals different results in different creative industries. Industries with strong collective management presence operate under liability rule schemes. As a result, authors in these industries benefit from ‘compensation without control’. The article concludes that integrating liability rule mechanisms is crucial for promoting access and fair compensation. This is exemplified by Art. 17 and markets that function under liability rule organizations, where minor authors particularly stand to benefit.