Implementation to date
The implementation clock is ticking. The new directive on copyright in the digital single market entered into force on 7 June 2019, giving the Member States two years to implement its provisions. Nine months have already passed, but most of the MS are still at the very beginning of the implementation process. Only one, France, introduced some of the directive’s provisions to its national law.
Those of the MS which commenced the implementation, seem open to hearing stakeholders’ opinions. The Netherlands published a draft implementation bill and opened a public consultation in July 2019. Ireland produced four consultation papers between September and December 2019, each concerning a different part of the CDSM Directive. In January 2020, Slovakia called upon the interested parties to submit the written opinions on the directive. In case of Sweden, opinions of selected stakeholders are taken under consideration, those partaking in a reference group created by the Swedish Ministry of Justice.
Whereas article 15 and 17 are undisputedly directive’s most controversial provisions, the consultation processes tend to be broader, with the CDSM Directive being consulted alongside the CabSat Directive, in such countries as Germany or Slovenia.
Parallel to the MS implementation process, the European Commission is hosting the stakeholder dialogue on article 17. The dialogue which begun in October 2019, has yet to produce the guidelines on the implementation of art. 17. The fact that the discussions are still ongoing, did not stop the French government from tabling a draft bill on implementation of arts. 17-22 of the CDSM Directive in December 2019.
France: testing ground for the press publishers’ right
France is the first, and to date the only MS to implement some of the CDSM Directive provisions. Transposition of the directive is fragmented: there is no one, comprehensive bill introducing all of the directive’s provisions, but a series of more focused legislative acts instead.
Implementation of the press publishers’ right came quickly, since France had a draft bill ready before the final text of the CDSM Directive was approved. Law number 2019-775 to create a neighbouring right for the benefit of press agencies and press publishers was adopted on 26 July 2019, and entered into force on 24 October 2019.
In September 2019, a month before the law entered into force, Google announced a major change to its services in France. It would no longer display previews of European press publishers’ content in search results, unless a publisher opts into such display. No remuneration for the use of content was foreseen.
Officially, Google justified its decision by the need to preserve objectivity of search results. As Richard Gingras, Google VP of News, wrote:
“People trust Google to help them find useful and authoritative information, from a diverse range of sources. To uphold that trust, search results must be determined by relevance—not by commercial partnerships. That’s why we don’t accept payment from anyone to be included in search results. We sell ads, not search results, and every ad on Google is clearly marked. That’s also why we don’t pay publishers when people click on their links in a search result.”
Thus, in Gingras’ opinion, in order to be objective, search results need to cover the widest scope of content available, and should not be limited to the licensed publications. At the same time, Google has no reservations about displaying enriched previews of content of press publishers who resign from remuneration.
Google’s position should not have come as a surprise. Google have been repetitively stating that it does not intend to pay press publishers for displaying previews of their content. Closure of Google News in Spain and the shift to the opt-in system in Germany following adoption of national press publishers’ rights in those countries were also clear indicators.
Even so, Google’s statement has caused an uproar. Franck Riester, France’s culture minister, called Google’s behaviour contrary both to the text and the spirit of the directive.
Jean-Michel Baylet, president of APIG, an alliance of national and regional press in France, simply stated “we are outraged”. And as a result of this outrage, two complaints have been filed with the French Competition Authority, one by APIG and second by the leading news agency AFP. In their complaints, news organisations claim that Google abuses its dominant position, and ask the authority for precautionary measures to secure application of their new press publishers’ right. Those measures were to be considered in March 2020.
Even though outraged, most of the French online press publishers allowed Google to display previews of their content without remuneration, explaining that they cannot afford to lose that much traffic.
To make the matters more confusing, in February 2020 the Wall Street Journal reported that Google is in talks with selected, mostly European, press publishers to license uses of their content. This is a significant change of position on the part of Google. However, whether these talks produce an agreement, remains to be seen.
Publishers in search of new venues
Problems with the enforcement of the press publishers’ right in France, confirm doubts about a new right’s fitness to solve problems faced by the press sector.
Press publishers begun to look beyond copyright to secure their interests.
First, in order to enforce the press publishers’ right, French publishers resorted to competition law, arguing that Google abuses its dominant position by unilaterally setting the rules for content exploitation. Such claims, however, are not new. This argument has already been made, and lost in Germany. In the German Federal Antitrust Authority’s (Bundeskartellamt) opinion “[e]ven a dominant company cannot be compelled under competition law to take on a considerable risk of damages where the legal situation is unclear.” This lack of clarity particularly concerned the length of previews which can be displayed by platforms without triggering the licensing obligation.
French provisions on press publishers’ right are largely a copy-paste of article 15, and they do not explain what are the “very short extracts” which alongside individual words are excluded from the right’s scope. The challenge to specify what very short extracts stand for was taken up by the German legislator.
The discussion draft presented by the German Ministry of Justice in January 2020, lists headlines, images with a resolution of up to 128-by-128 pixels, and audio and audio video material up to 3 seconds, as examples of exempted very short extracts. The provision, even though heavily criticized as inconsiderate of digital reality, should be considered a step in a right direction, since the drafters recognised that the exclusion need not be limited to text, but also cover other forms of expression.
Even though press publishers insist upon their dependence on Google and the significance of being included in its services when making competition law claims, the recent report by the News Media Alliance seems to argue that closure of the Google News service in Spain had no negative economic impact on the press publishing sector. According to the report, “the publishers made up for any loss in referral traffic from Google with organic traffic growth”. Thus the significance of Google in the online news environment is not as clear-cut as one might think.
Instead of patiently waiting for the French Competition Authority’s decision and implementation of art. 15 in other Member States, press publishers have joined the discussion on platform regulation which is currently ongoing at the EU level.
In October 2019, EMMA and ENPA, European publishers’ associations, presented a list of demands for regulation of market dominant platforms. The first demand calls for “A comprehensive right for all legal publications and offerings to have non-discriminatory access to market dominant digital platforms”. Publishers believe that regulation should hinder dominant platforms from unilaterally deciding if and how content is available in their services. Following the meeting with Commissioner Vestager in February 2020, Carlo Perrone, President of ENPA, noted that “Only specific regulation which would address the behaviour of dominant ‘mega-platforms’ can ensure the proper conditions for the press sector to thrive and serve its profound purpose as the 4th pillar of European democracy.” Thus copyright might be neither necessary nor sufficient to achieve the desired aims.
In this way, protection of the press publishers becomes an element of a broader agenda on platform regulation.
Some concluding remarks
Looking at the problems with enforcement of the new press publishers’ right in France, it seems that the arguments used by both press publishers and Google, are no different than those used during the discussion on the CDSM Directive. Adoption of the press publishers’ right on the EU level, to date, did not solve the conflict in the online news environment.
Contrary to what the European Commission believed, the authority of the EU has not been enough to guarantee a different reaction of Google than the one earlier observed in Spain and Germany.
An interesting development is, however, press publishers’ move beyond copyright law to secure their interests. They not only reach for the competition law measures to enforce their related rights, but also search for new opportunities as a part of current movement to regulate platforms activities in general.
Even if the newly started talks between Google and press publishers result in licensing agreements, it is doubtful that all press publishers would be compensated. A situation when only some news outlets are remunerated, and others are not, sits uncomfortably with questions on media pluralism and platforms’ role as gatekeepers.
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