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Post #1 of our Top 10 of IP in 2020

Not to be deterred by very public campaigns opposing a digital platforms code of conduct by Google and Facebook, the government introduced the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020 into Parliament on 9 December 2020, with the aim of introducing new provisions into the Competition and Consumer Act 2010, which will make digital platforms pay for “making [news] content available”.

This is novel in law as it takes a competition law, rather than copyright law, approach to remunerating publishers of news.  However, I wonder whether the underlying premise – that there is an “imbalance of bargaining power” between the digital platforms and news media – gives rise to interesting legal questions around validity and enforceability of the code.  What in law, actually, would ordinarily be the subject matter of any bargaining?

Traditionally, news has not been a recognised thing in law.  Information alone (for that is what news is) is not protected as a species of property.  Maybe information is protectable if confidential, but news, by its very nature, is not.  Indeed, it was the well-known Victoria Park Racing case in the High Court in the late 1930s, in which a radio station peered over the fence of a race course (albeit with binoculars) and broadcast the events inside, that confirmed there is no property in a spectacle, and ultimately led to modern ambush-marketing laws for major sporting events.

The present bill arises from a report last year by the Australian Competition and Consumer Commission (ACCC) on digital platforms, which concluded that news businesses and digital platforms are “unavoidable business partners” and that there is an “imbalance of bargaining power” between them, that imbalance being all in favour of the digital platforms.

The bill makes clear that “making content available” includes reproducing, providing an extract of, or even just hyperlinking to news content.  Reproducing, and possibly extracting (depending on what or how much is extracted), would normally invoke copyright law, but might raise existing fair dealing exceptions or other legitimate defences to infringement.  With the exception of linking to copyright infringing content (which is not the issue here), hyperlinking is generally regarded as freely permitted – after all, it’s how the entire World Wide Web works.  Which raises the question – to the extent that “making news available” would normally be legally permissible, power imbalance or not, what is there to “bargain”?

Anyway, to participate in the scheme, a news business that meets a set of criteria will be able to register with the Australian Communications and Media Authority (ACMA).  Criteria includes having an Australian audience, meeting certain journalistic standards, and having a threshold annual revenue of $150,000.  Then, if registered news businesses and the digital platforms cannot reach a negotiated remuneration outcome through good faith bargaining, compulsory arbitration will do it for them.  The arbitration must take into account the benefit (“monetary or otherwise”) that both sides derive from the platforms making the news business’ content available, so the considerations are not entirely one-way in favour of the news business.

At a revenue level set to $150,000 (apparently from all parts of a business, not only news), there might be something in this for smaller publishers as well, not only the big media outlets, although the arbitration process itself is likely to be complex and costly. 

For their part, the platforms must share data about how news content is used and monetised. They will be also required to provide information about users’ interaction with news, certain changes to algorithms that determine the display of the news on the platforms (although seemingly incongruously not required to give up any “trade secrets”), and also must not differentiate in treatment between registered versus non-registered news sources.

I’m of course sympathetic to the notion that journalism is important and ought to be protected.  Nonetheless, my feeling is that controversy around this code of conduct has quite a way to run, and that if the bill passes Parliament, court challenges to it are entirely possible.    

It’s also telling that, implicitly, the copyright regime is not seen as fit for purpose in these digital circumstances. ☁︎

2020 has seen a very healthy amount of activity in intellectual property law in Australia.  In no particular order, my Top 10 of 2020 series of posts contains my top ten things in IP from the year, and what they might mean for 2021. 

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