New EU copyright rules have sparked a battle between publishers and tech companies – and could end up damaging them.
The front lines are in France, the first country to implement new rules forcing tech platforms to pay publishers for the right to display their news content online. Last year, French media regulators fined Google 500 million euros for “failing to negotiate in good faith”. In response, the search engine agreed this month to pay 20 million euros a year to 80 magazine publishers. Earlier, Facebook made a similar deal to pay French publishers.
Expect hostilities to spread. After years of fierce lobbying, Europe adopted a new copyright directive in 2019. Although EU member states were supposed to adopt the new rules by July 2021, 15 countries in the EU have yet to comply – and others are struggling to apply the new rules. Once the new rules are “transposed” into local law, publishers have a legal right to demand payment for linking to their content. Negotiations, often still controversial, are about to start across the continent.
For traditional publishers, the conflict is often existential. The Web has devastated print businesses, decimating their classifieds and display ads. Publishers see payouts from rich Silicon Valley platforms as a way to reclaim financial viability. In Europe, many have become dependent on public funding to stay afloat.
Google and other platforms counter that they provide visibility and readers to publishers’ content. Many small European publishers agree. They fear new copyright rules will give them small payouts – while allowing tech platforms to limit the visibility of their content.
Politics also comes into play. Democracies need a strong and independent press. While falling ad revenue has shaken the financial stability of publishers, they still hold political clout — and politicians prefer not to antagonize them.
Spain and Germany illustrate the showdown.
In 2013, Berlin passed a law, called the Auxiliary Copyright Act, allowing publishers to request payment for displaying snippets of their content. A group of 200 publishers demanded 1 billion euros. Google refused. Although the publishers quickly backtracked and demanded to be reinstated in the platform’s search results, they took Google to court – only to have the European Court of Justice rule against them.
In 2014, Madrid imposed its own “link tax”, aimed at forcing Google to pay publishers. Instead, the search engine shut down Google News in Spain, causing a significant drop in newspaper traffic. The worst affected small Spanish publishers have spent years trying to get the government to back down. Google News returned to Spain late last year as new copyright law allowed publishers to negotiate directly with platforms.
Google and Facebook must now negotiate country by country to negotiate agreements with local publishers (because no real single market exists on a continent with multiple languages). Insiders say they don’t know how much the platforms end up paying – it could be big or pocket change.
Payment systems must be approved by regulators. Whenever publishers turn down an offer, the platform faces one of three options: renegotiate, settle the dispute with the help of local authorities, or stop serving the publisher’s content. The accepted length of a “very short extract” remains unclear.
Instead of encouraging the production of quality journalism, critics fear that payments could encourage the production of poor quality stories if the number of stories published becomes a key factor in determining payments. If the payment gets too high, Google, Facebook and others might be tempted to decide that publishing a publisher’s content is simply not worth the cost, limiting the reach and operation of the outlet.
Platforms recognize that they need quality journalism to populate their research and news feeds, but are wary of backing expensive, little-read stories. Internally, they have conducted studies which show that much of the information is duplicated and that the disappearance of less competitive media would not cause readers to miss coverage of important events.
The tussle of the platform and the press colored the final negotiations of the European digital markets law, designed to reign in the gatekeepers of Silicon Valley. At the last moment, publishers lobbied for the inclusion of a proposed amendment that would have required search engines and social networks to offer uniform payments for press snippets. It was rejected.
Despite this setback, the battle seems set to continue. Publishers are pushing again to include what former Pirate Party MEP Felix Reda calls a “must-carry-must-pay” clause in the upcoming EU media freedom law.
New European copyright rules were designed to support the free press. Instead, they may end up damaging it: by limiting the freedom of outlets and platforms, forcing smaller publishers into negotiations they might not want, and subsidizing publications that lose traction. ‘money.
Otto Lanzavecchia is an Italian journalist who currently writes for Formiche.net and Decode39. Alumnus of City, University of London, he focuses on international business, technology and ecological transition.