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Update on development of ACCC mandatory code of conduct for digital platforms, Google takes first step

We wrote a little while back that the ACCC is developing a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and digital platforms that use their news.  This post looks at some updates since.

Perhaps in an attempt to get ahead of the curve, Google has announced that it is going to commence a new licensing program to “pay publishers for high-quality content” for what appears to be an enhanced or premium news offering that will apparently be launched later this year – its form is not clear from the announcement.  Apparently some agreements have been reached with selected individual publishers in Australia (and Germany & Brazil) to start with.  Reading between the lines, that may not change the treatment of news outside this program.

In that regard, in the meantime, the ACCC released a Concepts Paper, which was open for public comment, that seeks to assist formulate the mandatory code of conduct. The public comment period has concluded, and presumably the ACCC is now formulating the draft code, due by the end of July.

The Concepts Paper reveals more about where this is heading.  Questions include specifically which digital platforms should be covered by the code, what is the definition of “news” to be covered by the code, and how should revenue and monetisation from using the news be handled, among other things. These are not simple issues.

Traditionally, the monetisation of content has been based on licensing of copyright.  That is, copyright subsists in news articles as literary works, and reproducing a substantial part of the works requires a licence.  What constitutes a “substantial part” can be difficult to assess where a digital platform may only use a “snippet”, and fair dealing exceptions may (or may not) apply anyway. 

Interestingly for us, the Concepts Paper specifically explains (see page 11) that the code is not to be a copyright-based approach:

The ACCC notes that this framework is not intended to replicate copyright-based policy approaches pursued in overseas jurisdictions to address the bargaining power imbalance between digital platforms and news media businesses. The Australian Government has asked the ACCC to develop a mandatory bargaining code, which would not involve changes to Australian copyright law. Instead, we are seeking stakeholders’ views on whether it would be appropriate for the bargaining code to include a bargaining framework based on negotiations to determine fixed fees, which may be partly influenced by the operation of licence arrangements based on copyright law. 

If not a copyright approach, it should be noted that the law does not regard mere information or data (ie. the news itself) as property, which leads to the issue of what digital platforms would be paying for (in a legal sense).  This is what makes existing legal frameworks somewhat inapt to the present situation, where there is broad perception (certainly strongly held by media organisations, supported by government) that the digital platforms are nonetheless benefiting from their use of others’ news. 

Instead, the Concepts Paper explains that ways of assessing the remuneration for the news being used include its value to the digital platforms, its value to digital platform users, and the cost of its production.  Never mind that these seem all to be various methods that might be used to quantify damages or an account of profits for copyright infringement. 

We’re also interested in how “news” will be defined – at what point does a smaller publisher, blogger, or start-up find itself included, rather than only large media organisations? The Concepts Paper discusses that one approach might be to measure whether content qualitatively meets a definition of news, based on, for example, “recording, investigating and explaining issues of public significance in order to engage citizens in public debate and inform democratic decision making at all levels of government”.  That’s quite broad – does that therefore mean I can expect a payment from Google if it indexes this post?  Somehow, I doubt it.

Anyhow, for us, this is an interesting sign that there are moves away from traditional IP approaches to the valuation and assessment of online content, information and data.  Although the code would run in parallel to existing copyright law (unless there is some legislative change, which is exactly what the government says it does not want – see quote above), in practice, what is the role that IP is to play in an increasingly data- and content-driven world?

The draft code of conduct is due by the end of July. 


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