AIPPI: Fair use on the internet

A member of Google’s in-house team moderated an illuminating session on copyright and its use by digital news outlets, as Sarah Speight reports.

What is the perfect balance between the rights of news content owners, and those seeking permission to use and share that content online?

That was the question examined yesterday, Tuesday September 14, by a panel at the International Association for the Protection of Intellectual Property (AIPPI) World Congress in San Francisco.

In a session entitled ‘Hold the presses! Fair use on the internet’, speakers addressed the role of copyright and related rights in digital news media, zooming in on various legislative contexts and how ‘platform’ services relate to news content and media businesses.

Erin Simon, product counsel, knowledge, at Google, moderated the session, noting that this issue continued to be a “hot topic” in IP law.

A case for quality content

Google’s Simon focused some of her discussion towards issues of quality in news content.

She cited a recent case that she found “compelling”, in which Google was sued by FranceSoir, a formerly respected newspaper that was later reformed online by several ex-employees.

The site was widely criticised as spreading false information and conspiracy theories, and Google removed the offending content from some of its products. FranceSoir lost the case and was ordered to pay costs of €70,000 ($70,100) to the tech giant.

“Even though FranceSoir has a right of free expression, we have other fundamental rights that are balanced against them,” explained Simon.

She warned:“This is the kind of approach that will be weaponised under any regulation that mandates initiation arbitration payment, without real attention as to who qualifies and what the social value of that content is.”

Another important point under US law, she added, is that a platform may not ‘discriminate against the negotiating news businesses based on the views expressed by their content’.

“This is why I brought up the FranceSoir example, because all of those headlines were protected speech under the US First Amendment. Those are the views that a platform would not be allowed to discriminate against in bargaining and funding news businesses under this bill.”

During the session, the panellists explored the differing legislative contexts in Europe, Australia and the US.

Article 15 of the European Copyright Directive in the Digital Single Market, introduced in 2019, is gradually being transposed onto all EU member states’ legislation; Australia has introduced a bargaining code, and there are proposed codes in Canada and the US along a similar model.

Article 15

Hans Eriksson, partner at Westerberg & Partners in Sweden, gave one of two European views.

He first gave a potted history of the background of the new directive, which originated in Germany where in 2013, sui generis related rights for press publishers were introduced to better commercialise their news content.

While this and a similar initiative in Spain “fizzled out”, the European Commission subsequently unveiled the Digital Single Market strategy in 2015, which initially did not actually include a press publisher’s right.

The directive, otherwise known as ‘neighbouring rights’ and whose term of protection spans two years, extends the exclusive right of reproduction to publishers for the online use of their press publications by information service providers.

“What it basically means is that your classic publishers and national newspapers in EU member states publish things online and now they have a right to licence it, particularly to news aggregate services and to search engines with a news aggregation functionality,” explained Eriksson.

The directive includes ‘carve-outs’ of what the press publish right does not apply to, he said, including one for private non-commercial use as a press publication by individual users; one for hyperlinking; and one for the use of individual words for short extracts (snippets) in press publications.

“What is a very short extract is, of course, going to be a matter of some considerable debate in Europe in the years to come,” he said.

“This is a new related right to the press publication—but there's also copyright proper in the literary work that the journalist has created, and in the photographic work that photojournalist [has created].

This overlap and potential problem with overlapping protection, he explained, is addressed by Article 15, which states that the press publisher cannot invoke its rights against these other rights owners.

“Of course, this legal tool is meant to strengthen the hand of press publishers, so that they are the ones that will get revenue from these news aggregators and these search engines.

But he cautioned that Article 15 also includes a class that says authors of works that are included in these press publications shall receive an appropriate share of those revenues. “So there's another battlefield [that] we'll soon see,” he said.

Practical applications

Eriksson raised a number of questions about how the directive will pan out in practice, including whether there is a minimum amount of investment that press publishers will have to make in a press publication in order for it to enjoy protection.

“Even if we assume that the current decline of press publishers is a very pressing societal problem—and I personally very much believe so—there's a very strong argument to say that it's not entirely clear that a new exclusive IP right subject (in the EU case) to the whims of 27 different national implementations that this is going to actually strengthen the digital single market.”

Another point he made is that it's easy to fall into old patterns of thinking about rights owners as the “good guys” and “pirates” on the other side.

“We always think of infringers as evil, and rights holders as good, and that is certainly not the case here,” he insisted.

“News aggregators, search engines—they're not evil, they're not doing this to infringe. They're entrepreneurs trying to build something new that we don't have, and we have to keep that in mind when we balance these interests.”

France

Thomas Widmer, counsel at LaLive in Switzerland and a member of the board of AIPPI, gave the French perspective.

He admitted that in his home country, there is “basically no discussion regarding this issue, and no case law,” and that Switzerland commonly adopted a ‘wait and see’ approach.

France was the first country to implement the directive into its national law, and he cited a “striking” dispute between Google and the French press, in which Google was ordered to pay the French press €500 million ($500 million) for failing to negotiate licensing deals in good faith after the country implemented the directive.

The parties reached an agreement that establishes a framework, within which Google will negotiate individual licence agreements with members of the Alliance de la Presse d'Information Générale.

An unsuitable vehicle

Matthew Swinn, partner at King & Wood Mallesons, as well as president of the Australian Committee for the AIPPI, explored the legal position in Australia.

The government has determined that copyright is an unsuitable vehicle to balance the rights and interests of the news content producers on the one hand, and the digital platforms on the other, explained Swinn.

“News headlines themselves have been held by Australian courts to be too insubstantial to reach the threshold requirement or originality of copyright protected works.

“So notwithstanding that they can sometimes be ingenious or involve wordplay or double meanings, nonetheless they don't rise to the standard of originality under Australian law.”

In terms of snippets, he added, there are hurdles that under Australian law that the copyright owner would have to overcome for a finding that is copyright infringement, including demonstrating that what is being done is not a fair deal for the purpose of reporting news.

“So Australia doesn't have a broad fair use exemption to copyright. But it does have a number of narrower fair dealing exemptions to copyright infringement.”

More to the point, he continued, the Australian government has accepted that the news media organisations on the one hand, and the digital platforms on the other, are “bedfellows—unavoidable trading partners”.

He cited Google and Facebook to illustrate this point, which are examples of sites wanting to make their search service more attractive by aggregating the news, while news media organisations are “relying quite heavily upon those digital platforms for referrals”.

He explained that a digital platforms inquiry in 2019, conducted by the Australian competition regulator, concluded that there was an imbalance of bargaining power between the digital platforms and the news media.

This led to the implementation of the News Media Bargaining Code, which was enforced in Australia in 2021.

“It is a mechanism that is designed to very strongly promote the negotiation of commercial agreements outside the scope of the code,” said Swinn.

A recipe for unending litigation

Google’s Simon added that platforms are also prohibited from 'retaliating' by changing the ranking or the indexing status, or any other way the content is presented on the platform.

“I'm a lawyer for Google search, we get complaints all the time from people who are unhappy with their ranking and think something suspicious must be going on. So this is just a recipe for unending litigation,” she said.

On a final note, Simon raised the question of why news outlets and aggregators were being targeted, and not Yelp, or Amazon, or all of the other sites that people search for every day.

“I think the answer is that news publishers are very politically influential. And I don't think that's a great reason for regulation.”

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