Google launches the new licensing programme today, 1 October 2020.
Angela continued: “Many are quite cynical about Google’s perceived strategy. By launching a product, they can dictate terms and conditions, undermine legislation designed to create conditions for a fair negotiation, while claiming they are helping to fund news production.”
Contracts sent to publishers for participation in the previous version of “News Showcase” included a restrictive clause saying that Google may terminate this agreement immediately if a publisher participates in or initiates a legal claim or complaint relating to Google or its Affiliates’ use of news content.
Angela concluded: “It is not yet clear how “News Showcase” will work for all publishers and there are questions on how it can work in tandem with publishers’ strategies to implement the new EU Press Publisher’s Right. It is important that publishers have the freedom to enforce their rights directly or participate in collective agreements negotiated under European Union law.”
The EU law on copyright contains a neighbouring right for press publishers which is being transposed into national law. In France, where the right was passed into law last year, the French competition authority had to intervene with interim measures in order to bring Google to the table to negotiate in good faith, as they considered that Google’s practices were likely to constitute an abuse of a dominant position and brought serious and immediate damage to the press sector. They called on Google, within three months, to conduct negotiations in good faith with publishers and press agencies on the remuneration for their protected content. Google appealed the measures and the EPC expects the Paris Court of Appeal to deliver its judgement on 8th October. Meanwhile, the competition authority in Australia, the ACCC moved to introduce a mandatory code which Google is opposing vociferously. Various US Congressional hearings and several important studies including the UK Cairncross review have all supported payment by platforms to publishers for use of their press content.
The French Competition Authority decision from April considered that Google’s practices were likely to constitute an abuse of a dominant position and brought serious and immediate damage to the press sector. It calls on Google, within three months, to conduct negotiations in good faith with publishers and press agencies on the remuneration for their protected content.
Google’s appeal in July seeks to get some legal clarity on parts of the decision.
It argues that that the agency has not met all the core conditions to justify such a pressing intervention into its operations without finding that it breached antitrust laws. Google says the regulator has not shown that its refusal to pay publishers poses a serious and immediate threat to the press sector, which it says is struggling for many other reasons.
Google’s appeal revisits the arguments over whether France’s copyright law requires it to pay for displaying short extracts from articles and whether refusing to do so can amount to a competition abuse. It goes on to say that press publishers’ content displayed on its search engine already benefit from a significant amount of traffic and from access to more readers without additional costs.
Furthermore, the company argues that interim measures aren’t needed to address disputes over money, which can be settled via lawsuits if the company is found to have breached the law.
On 10th September, the hearing against the decision of the Competition Authority was examined by the Paris Court of Appeal. The court will deliver its judgment on 8th of October.