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Is Google going to pay up?

Google's announcement

Google's announcement

A VIBRANT news industry matters - perhaps now more than ever, as people look for information they can count on in the midst of a global pandemic and growing concerns about racial injustice around the world. Bravo! Fine words!

What do these words mean, though? They come from Google's announcement of "a licensing program to pay publishers for high-quality content for a new news experience launching later this year". The internet advertising and search corporation has "signed partnerships with local and national publications in Germany, Australia and Brazil".

This is of course a response - of a kind - to the European Union's demand that online corporations such as Google pay newspaper publishers to use the extracts from published articles that are such a large part of the corporations' business model. This demand is expressed in the Directive on Copyright in the Digital Single Market, which has still to be "transposed" into the law of Member States. One provision is that "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" - and that actual journalists must get a fair share of this.

And - you will be totally shocked to hear - this move is a distraction from the right granted by the Directive, with Google trumpeting its decision to choose what publishers to pay.

The European Publishers Council, representing publishers' organisations, is not happy. Executive Director Angela Mills Wade told Reuters that it should be the norm for dominant platforms to pay for content which they profit from: "The current state of play, whereby no licences are concluded with Google, is an unacceptable exception," she said.

The German Journalists' Union (DJV) describes its reaction to the proposal as skeptisch. Its Michael Klehm expands: "The point is that Google will decide for what content they want to pay and how much. Who defines 'quality content'?"

As Mathew Ingram wrote in the Columbia Journalism Review, Google's "plan was never to pay news organizations for their articles". Its previous deflection from the fact that it is making money by using work with no-one's permission was the "Google News Initiative" that offered selected publishers tens of millions of dollars to "figure out how to use the internet to monetize their news" - that is, to become more dependent on Google. The distraction failed.

And the pressure is not on only in Europe. As the Press Gazette reports, "2000 US news publishers have sent a report to regulators alleging that Google has used its online market dominance to 'strong-arm' them into unfavourable content agreements." That's implicitly a threat of an extremely expensive lawsuit. Immediately, they're promoting a "Journalism Competition and Preservation Act" that would allow them to negotiate better terms with platforms, collectively. Sadly, there's nothing in that about passing on any benefits to journalists - not least because under the US "work for hire" doctrine newspaper publishers are outright owners of copyright in almost everything they commission.

It does seem possible that the renewed attempt at deflection by Google will fail. Watch this space...

1 July 2020

Meanwhile in South Africa...

On 28 March 2019 South Africa's Parliament passed a Copyright Amendment Bill. On 16 June President Cyril Ramaphosa sent it back to Parliament.

This follows a formal challenge from the Blind SA organisation - presumably on the grounds that it didn't go far enough to give its members accessible copies of copyright works. The president's grounds for referral did not include these provisions, but did include retrospective and arbitrary deprivations of property; insufficient public hearing on Fair Use; impermissible delegation of legislative power to the Minister; and breach of treaty obligations.

As Laura Kayali reported on the expected powerful overseas objectors, in the shape of Hollywood studios, record labels and publishers, were joined by the European Commission being unusually public in its view.

The Bill as it stands is a mixed bag. It provides for many works that "Notwithstanding the assignment of copyright [or licence terms] the author shall, subject to any agreement to the contrary, be entitled to receive a fair share of the royalty received..." (our emphasis). Where there is no agreement, either side may call on a Tribunal to decide. It provides for droit de suite - for artists to get a percentage when their works are re-sold.

A major objection to the Bill is that it would replace the "fair dealing" test for uses of works without permission - under "exceptions" to copyright - with a US-style "fair use" rule. That leaves almost everything up to the court hearing a claim of infringement. In the US, the courts have been empowered in effect to create new exceptions. It additionally gives rather broad exceptions for use in education, libraries and archives, which would slash authors' income from collecting societies. And it allows the Tribunal to grant compulsory licences (and set remuneration) for translations and for works that are unavailable to be used in "systematic instructional activities".

US copyright advocate Neil Turkewitz observes that the Bill met "local opposition from the very groups that this legislation was theoretically designed to help" because of its effect on authors. It had been "hijacked by a small group of ideologues committed to a principle of governance that bore little relationship to the situation in South Africa - aided, assisted or directed by entities outside of South Africa." To what internet service provider could he be referring?

And in China...

The People's Republic of China is also revising its copyright law. The attention of the European Federation of Journalists was drawn to the proposal to add to Article 16 a provision that copyright in "works created in the course of employment by employees of newspapers, periodicals, presses, radio and television stations, and their media" shall belong to the employer. In parts of the world that aren't former British colonies, employed journalists have until now retained their copyright. China's current law does provide in Article 17 that "The ownership of the copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of such a contract or of an explicit agreement in such a contract, the copyright in the work shall belong to the commissioned party."

The EFJ was about to respond formally when we discovered at the last moment that we would have to do so in Mandarin. We will seek another way.