We are pleased to bring you a guest post by Mili Baxi, on the development of a publisher’s right in digital media. Mili is a graduate of Institute of Law, Nirma University, currently completing her LLM at LSE. Her areas of interest are Information Technology law, Intellectual Property law, Media & Communication Law, and human rights law.
The economic health of the traditional news media and publishing industry has deteriorated over the years, which is concerning for the ‘fourth pillar of the democracy’ which faces crippling economic conditions and puts the independence and reliability of media at stake. This blog examines how press publishers have claimed rights over their content on digital media platforms like Facebook, Google News, which give a preview of two-three lines along with a hyperlink to the press publication. In the absence of any requirement for licensing agreement, the platforms capitalize on these ‘snippets’ without paying press publishers any share of remuneration, making it difficult for the publishers to recoup their investments. Press publishers are dependent on platforms like Google and Facebook for referential traffic on their website making it difficult for them to negotiate with giant platforms especially the ones with the dominant market position. Press publishers have been pushing against digital platforms free riding on their content but due to the symbiotic relationship with these online platforms, press publishers are seeking legislative action to strengthen their interests on the negotiating table. In this short piece, I evaluate EU’s press publishers right and Australia’s News Bargaining Code as responses to securing publishers’ rights against digital intermediaries and consider whether India should adopt similar approaches.
European Union and Australian Approach for Press Publishers’ Interest
Australia and EU have taken different approaches to address the issue of making platforms pay for use of news content. The EU took the Intellectual Property route by introducing a related right under its copy right law. In 2019, the European Union (EU) has introduced the Press publishers’ rights under Article 15 of the Directive on Copyright in the Digital Single (CDMA) with an intention to redistribute the inequitable distribution of digital advertising revenue between the news media and information society service providers. Press publishers’ right is a ‘neighboring right’ of ‘publisher of press publication’ for the online use of their publication in its Copyright Directive with the objective of ensuring equitable distribution of incentives between press publishers and digital service providers. The right is an exclusive right to reproduction and making the content available online to the EU press publishers against online use of their content by information society service providers for two years. The provision does not apply to individual words, very short abstracts, scientific and academic blogs, journals and publication, mere facts reported in the publication, or works that are already in the public domain and hyperlinked.The right does not have an originality threshold.
The introduction of press publishers right has met with heavy criticism over its broad scope and vague application. The provisions are applicable to commercial like online news aggregators and media monitoring services. Although the intent of this provision is to target Google and its services, it also affects small players and new entrants in the market and can potentially deter innovation. The exception of ‘very short abstracts’ is also problematic as it frustrates the purpose of the right which is intended to give exclusive right to the content especially the short snippets of news media provider. The implementation of this right is another challenge unless the press publishers exercise their rights collectively.
The Australian approach to tackle the same issue is different from the EU. After a tussle with Facebook in 2021, Australia adopted News Media Bargaining Code. Instead of taking an IP route, Australia incorporated amendments within its competition law framework to facilitate a bargain between designated platforms and registered news media organization over remuneration for making their news content available. The code also provides for obligatory final arbitration where in arbiter gives final offer to parties, if the agreement is not reached within three months. The elements of negotiation, mediation and compulsory referral to arbitration are unique features of the code. It is a more comprehensive framework than EU’s press publishers’ rights but has been criticized by platforms for its heavy-handed approach as they fear that code can potential impact the individual users right to share and view content for free. While EU’s press publishers’ rights states that authors are entitled to appropriate share of the revenue that press publishers receive from information society service providers, the Australian code is silent on the remuneration to the journalist. The tensions between news media and platforms are a global concern and after EU, Australia, countries like Canada and US are next in line to employ regulation strategy for payment of ‘fair share’ to media for use of its content.
Analysis in Indian Context
The Indian press publication industry is investing in digital properties to capture the growth of revenue from digital advertising as the consumption pattern of the news is shifting to digital space. Therefore, a call for regulatory intervention for online use of the press publisher’s content by digital platforms is not too far in the future.
Introducing EU’s press publisher right in India without any empirical and economic investigation can result into problematic consequences for the market. Many academics have stated that IP is not the correct tool to achieve the redistribution of market share. Critics of press publisher right argue that copyright is awarded to incentivize creativity by rewarding exclusivity. It is introduced with intension to correct the market failure which presumes that allowing the author’s work to be copied freely discourages the author to create, innovate or invest. Exclusive rights might not necessarily reap the economic benefits or create monopoly or redistribute the wealth. IP rights affects the redistribution, but it is not the best tool for policies that target distribution of market share amongst different industries. Redistribution through IP rights in absence of market failure is doomed to fail as it does not to create incentive. Standalone the press publisher’s rights under the EU copyright law cannot achieve its objective and has tendencies to backfire. Take for instance the case of Germany, wherein the google news refused to pay the license fee and instead chose to withdraw. It decided not to use the content. In absence of the platforms, the traffic to the online news (especially the small-scale news media) was severely affected, and many newspapers pulled out and renegotiated their deals with google by agreeing to make their content available for free. Even the German Competition court did not regard Google’s action as exercising ‘abuse of dominant position’. The EU press publisher’s right has only been successful in member states where in the press publishers are bargaining collectively or are relying on the competition authorities to enforce the right under Article 15 like in the case of France. It is evident that implementation of neighboring right is likely to fail without an aggregator or market failure.
Indian policy makers need to carefully evaluate implications of introducing neighboring rights and consider other options to balance the interests of press publishers in India. Australian regulatory approach is more straightforward and suitable for Indian market, but it comes with the caution of interfering with the right to free speech and expression which needs to be balanced.
In conclusion, I argue that India should not blindly import the press publishers’ rights from EU copy right directive as the IP way to harmonize the tension is conceptually flawed and poses major implementation challenge. On the other hand, the Australian competition law approach runs the risk of posing threat to the freedom speech and expression as it affects the user-generated content. Before India decides its own regulatory intervention, the legal and economic analysis of policy tools to deal with the issue of licensing of the use of content of online news media by platforms must be undertaken. It needs to observe the implementation of Austrian and EU approaches along with developments in other countries. There are other ways of raising revenue which needs to be explored for maintaining the financial health of the news media industry such as public funding of news or reader-revenue model. Another policy measure strongly advocated by OECD’s working committee is to enable newspapers to negotiate collectively with the advertisers and platforms. The report by Vidhi Centre for Legal Policy titled ‘The future of news in India’ proposed to ‘initiate an investigation into dominance of online advertising platforms by Competition Commission of India’.
The best way forward is to conduct thorough analysis of regulatory frameworks suitable to Indian News Media industry and catering to its needs for developing and flourishing in the phase of transitioning from physical to digital space. Such investigation should be carried out with the focal lenses that prioritizes the economic health of the industry and balances rights of the citizens to express themselves and receive cost effective, independent, and reliable and information.