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Making the internet giants pay for news

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How Google wants to deal with news: its News Showcase - in which it chooses what to pay to whom.

THE INTERNET giants - Google, Facebook and friends - make their fortunes by distributing words, images and sounds that others have authored and performed. Whether we're talking about your Aunt Vi's punk sample on TikTok or an article from Le Monde "shared" on WhatsApp, the corporations' business model is to sell advertising on the back of it.

The point of copyright and authors' rights law is to ensure that those of us who arrange the words, pixels and notes can get paid and go on dedicating ourselves to doing that work professionally. So how have the internet giants got around the laws that are supposed to do this?

As the International and European Federations of Journalists put it on World Intellectual Property Day last year: "For too long these internet giants have been able to build empires on the principle 'don't ask permission, ask forgiveness' espoused by Peter Thiel, co-founder of PayPal and funder of Donald Trump." Good regulations take time to make: and the profits to be made while they're being made can be enormous - especially when the initial profits are large enough to fund lobbying to ensure that the law "forgives" instead of catching up.

So how is the law trying to catch up? There are two approaches: one in the European Union and one in parts of the English-speaking world.

Authors’ Rights

In most of the world, the approach to ensuring that creativity is rewarded is to legislate "Authors' Rights" - which are at root rights of the individual human creator.

Against that background, in 2019 the European Union adopted the Directive on copyright in the Digital Single Market - which includes a measure granting news publishers a so-called "neighbouring right" to authorise - for a fee - re-publication of the content they put out.

A "neighbouring right" is a legal right adjacent to authors' right. A fairly close parallel to this publishers' right is the music producers' "mechanical right" to authorise - for a fee - reproduction of a recording, quite separate from the authors' rights of the composers' and the lyricists' and the performers' rights. (Performers' rights are themselves "neighbouring rights".)

The Directive isn't perfect. The European Federation of Journalists (EFJ) proposed a provision that journalists should receive a minimum percentage of publishers' revenues from the internet giants, distributed through our collecting societies. We did help to ensure the inclusion of Article 15(5): "Member States shall provide that authors of works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers."

Eleven EU member states have completely missed the deadline to "transpose" this Directive into their national law, which fell on 6 July 2021. Others have not yet transposed this "Article 15" for the benefit of news publishers or Article 17, which covers payment for works in general that are "shared" by services' users. Some member states have added undesirable law that isn't in the Directive - such as Croatia adding a presumption that the work of employed journalists belongs to the publisher, as in the copyright system (see below).

The position is complicated by the Court of Justice of the European Union having made a series of judgments that are not obviously consistent with each other and which suggest definitions of how many words, for example, need to be reproduced for authors' rights - or, by extension, the publishers' neighbouring right - to apply.

And in several member states Google in particular is trying to avoid the legal requirement to pay by bundling up "offers" to news publishers that include payments - at its sole discretion - under its News Showcase product.

In the copyright system

The English-speaking world is out of kilter with the rest of the world, as exemplified by the opening words of the UK Copyright, Designs and Patents Act 1988: "Copyright is a property right". Copyright is tradeable, just as sugar and salt are. Thus, for example, it is presumed that the "author" of a work produced under a contract of employment is the employer, not the human.

Against this background, in 2021 Australia passed a "news code" - defying a threat by Google to withdraw all search services from the country.

The Australian code falls under competition law, not authors' rights or copyright law. It allows news publishers to get together to negotiate with the digital platforms. Without this, such collaboration would be punishable as an anti-competitive "cartel".

The Australian code says nothing about a fair share for journalists - even freelance journalists who retain copyright in their work. It can be said to assume that the newspaper publisher is "author" of everything it publishes.

It is reported to have produced revenue of AU$100 million a year for publishers - many of them Rupert Murdoch. Here, too, however, the figures are obscured by lumping in payments for the News Showcase with those for reproduction of articles in straightforward search and sharing.

On 5 April a similar law - an Act respecting online communications platforms that make news content available to persons in Canada - received its first reading in that country's Parliament.

In the US, the Journalism Competition and Preservation Act of 2021 was introduced in that year and was immediately referred to the Subcommittee on Antitrust, Commercial, and Administrative Law. We have heard nothing of it since.

And in the UK the Press Gazette reports noises about a "code of conduct" under competition law to "force Google and Meta to pay for news". (Meta is the new name of Facebook's parent company.) The Freelance is looking for details.

  • 14 April 2022 Reading the Canadian Online News Act, it is noteworthy that in its current form it allows "digital news intermediaries" (such as Google) to apply for an exemption from its provisions if it meets conditions such as that they "contribute to the sustainability of the Canadian news marketplace" - a phrase we are sure we recall from press releases by, er, Google claiming benefits to the news business from its current business model.
  • Somewhat bizarrely, it excludes publications "focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment".
  • 26 April 2022 Today the Court of Justice of the European Union dismissed Poland's case against Article 17 of the Directive on Copyright in the Digital Single Market: Court press release here. Article 17 is the provision for licensing of works uploaded by users - or, failing that, blocking its upload.