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AIPPI 2022: Changes to news aggregator rules concern counsel

Erin Simon of Google, speaking in San Francisco

Attempts to make aggregators pay news publishers could cause legal grey areas, said counsel from Google and other firms

Attempts to require news aggregators to compensate publishers could create legal uncertainties, said speakers at AIPPI’s World Congress on Tuesday, September 13, in San Francisco.

Panellists from Google and three other firms delved into legislation from the EU, Australia and the US that would require tech platforms to seek permission or offer compensation when aggregating news.

Article 15 of the EU’s Directive on Copyright in the Digital Single Market created a new right that allowed press publishers to demand fees when aggregators displayed excerpts of their content.

Hans Eriksson, partner at Westerberg & Partners in Sweden, said there were a few grey areas in this legislation.

“This raises many, many questions that will have to be hashed out in litigation,” he said.

The law stated that authors of works should receive appropriate shares of revenues. There could be battles over that provision in the future, said Eriksson.

The legislation specified that very short excerpts were exempted from this new right.

But Eriksson noted that it was unclear what constituted a very short excerpt and how this exception would apply to videos or photos.

The legislation didn’t provide enough detail on what constituted a press publication either, said Eriksson. Traditional newspapers would likely meet the definition set out but personal blogs probably wouldn't.

Australian attempts

The Australian government determined that copyright wasn’t a suitable vehicle for its attempts to balance the interests of news providers and digital platforms.

The government decided this way for a few reasons, explained Matthew Swinn, partner at King & Wood Mallesons in Australia.

The main reason given was the Australian courts had held that newspaper headlines didn’t merit copyright protection.

Swinn explained that the country addressed the balance-of-interests issue instead through the Australian Competition and Consumer Commission’s Digital Platforms Inquiry in 2019. The government determined that there was an imbalance in marketing power between news companies and digital platforms, including Google and Meta.

The government then passed the News Media and Digital Platforms Mandatory Bargaining Code in 2021 to allow news organisations to negotiate with platforms over payments.

Before the bill passed, Facebook (now Meta) pulled all news from its platform in Australia for a few days. The tech company eventually came to an agreement with the government and relented.

Google and Meta have since reached agreements estimated to be worth A$200 million ($134.5 million) with news businesses, said Swinn.

But Swinn added that there was a real risk that platforms would simply switch news off if they felt like they'd been backed into a corner.

Google gripes

The US had considered similar legislation, according to Erin Simon, product counsel for knowledge at Google in San Francisco.

The Journalism Competition and Preservation Act, introduced in 2021, would allow US news businesses to negotiate with platforms over the access conditions for their content. It would also require platforms to negotiate and bargain in good faith.

Simon argued that there were a lot of problems with this legislation, however.

She said platforms that only offered one proposal and refused to deviate from it wouldn’t be considered to have negotiated in good faith. She added that websites might want to argue that they didn't owe news sites any money because their content use was fair.

She pointed out that news companies had the right to remove their content from platforms as a negotiating tactic but websites couldn’t refuse to carry news content.

The proposal was also frustrating because platforms such as Google already used very little content from news stories, and the use drove traffic to these websites, Simon added.

Thomas Widmer, counsel at Lalive in Geneva, also spoke on the panel.

AIPPI took place this week at the Marriott Marquis in San Francisco.

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