The new Italian press publishers' right: creative, fairness-oriented... and invalid?

Article 15 CDSMD introduces a new related right in favour of press publishers, covering the online reproduction and making available of press publications by information society service providers. The final wording of the provision pervasively harmonizes some aspects of the new right, but leaves sensitive matters in the discretion of national legislatures, such as the notion of short extracts, the devise of specific licensing and/or distributing schemes and the related possibility to interfere with parties’ freedom to contract. Halfway down the road of the transposition process, divergences on key points are already emerging: some Member States have adopted solutions that present controversial features, which characterize them as cases in point of the side effects that an act of imperfect harmonization such as Article 15 CDSMD may engender. As a paradigmatic example of this trend, this article focuses on the Italian transposition of the press publisher’s right, offering a critical assessment of its most salient features and testing its validity under EU law on the basis of the indications provided so far by the European Commission and the CJEU. The result of this exercise will also be useful to draw the margin of discretion left to other Member States in the implementation of Article 15 CDSMD.