A few weeks ago, the news was abuzz with the controversy over a australian law that would do social media companies and even search engine pay for their provision of content from traditional media. While the controversy was high, there were articles in numerous general interest publications asking if this model could work outside of Australia – and perhaps if such a bill could even be passed in the States – United. What has received much less attention in the popular press is an American version of this bill that was recently introduced to Congress to address some of the same issues. The Competition and Preservation of Journalism Act 2021 was not introduced in response to Australian law, but rather is an idea that predates overseas action. Versions of the US bill have been presented in previous sessions of Congress, although they have never received much attention before. But this year’s version has been presented to both the House and the Senate, has already been the subject of a congressional committee hearing, and garnered support (including from the National Association of Broadcasters and even the tech company Microsoft).
The intention of these bills, and other similar laws being considered around the world, is to open up a new source of revenue for traditional media that cover local news – media that have been hit hard by the revolution. online media over the past 25 years. As we have noted in other contexts (see for example our articles here and here), as huge digital media platforms have grown over the course of this century, these platforms have taken more than half of local advertising revenue in virtually every media market – revenue that had sustained local journalism. The perception is that this was done without significantly adding to the coverage of local issues and events in these markets. We have certainly seen the newspaper industry economy severely affected, with many, if not most, newspapers reducing their staff and local coverage, and even the frequency of newspaper publication. Broadcasting has also felt the impact. Many lawmakers around the world have come to the conclusion that these digital platforms attract audiences by presenting content created by traditional media sources that have been so impacted by online operations. In order to preserve and support original sources of information, various ways of compensating content creators for the use of their works, such as legislation in the United States and Australia, are being explored. We thought it was worth looking at the proposed legislation in the United States and comparing it to the more comprehensive legislation introduced in Australia, and highlighting some of the issues that can arise in relation to such regulatory proposals. .
The US proposal simply provides a antitrust exemption for the creators of current content to come together to collectively negotiate with technology companies for the use of this content. The bill, as presented, does not require technology companies to enter into a collective agreement with media companies, or even to negotiate with these companies. Presumably, the law provides that tech companies would be incentivized to do so, as media companies, with an antitrust exemption, could band together and ban the use of their works unless the tech companies negotiated an acceptable deal. Without an antitrust exemption, media companies would be limited in their ability to jointly negotiate (and potentially boycott) these technology platforms – the very issue raised in GMR’s counter-action against the RMLC in connection with the industry’s attempts to the radio to negotiate with GMR for the use of the musical works that it controls (see our article here).
The bill would extend this protection for collective bargaining to any print, audiovisual or digital news organization that has a professional editorial team that creates and distributes original news content at least once a week. The bill applies to any FCC-licensed broadcaster that airs original news and related content. Any other media company should meet the requirement to “provide original news and related content, with editorial content at least 25% current news and related content”. There is no definition of “editorial content”, so the effect of this 25% requirement is unclear, but the bill probably says that at least 25% of news content must be topical as opposed to some sort of archived documentary. or features that do not cover the news. But this provision does not apply to broadcasters licensed by the FCC.
Technology companies that are the target of negotiations are limited to very large companies that have more than one billion monthly active users worldwide at all departments of a company (thus, for example, Facebook users, Instagram and WhatsApp would be included in the monthly number of users). The companies being negotiated must also have a “website or other online service that displays, distributes or directs users to news articles, journalism or other Internet content generated by users. third-party news content creators ”. This would appear to encompass companies like Facebook which display journalistic works on their sites and apps, and search engines like Google which direct users to such content.
Australian law, the mandatory trading code for news media and digital platforms, was much broader in scope and contained elements that some American media companies might hesitate against. The legislation requires major tech platforms to negotiate with media companies registered in the media and, if they fail to come to an agreement for the dissemination of the news content, a government panel would determine a reasonable rate for the information used by the media. the online platform. But only media companies registered with the government would be eligible to participate in the negotiations – and that registration requires the government to make certain decisions about the media before they can be registered (or maintain their registration). The media entity must have revenues in excess of $ 150,000, it must have as its primary objective the creation of news content, it must function primarily for the purpose of reaching an Australian audience, and it must meet a “Professional standards test” by adhering to certain professional industry guidelines These provisions appear to grant the government significant discretion in determining which media might benefit from any mandatory bargaining requirements. While such a recording is not uncommon in other parts of the world, in the United States, asking the government to approve media outlets based on the content they provide would be a tricky First Amendment issue.
In Australia, attempts to implement the law ran into major problems when Facebook decided to remove all local content from its platform in that country, causing a step backwards from the mandatory nature of the law. obligation to negotiate. The US bill is also likely a starting point, rather than completed legislation that could be immediately passed and implemented as drafted. The bill’s premise – that jointly negotiating media companies would have the ability by uniting to force negotiations from major tech platforms – has not been tested. It also presupposes that media companies could in fact extract their content from the platforms. Current US copyright law, such as the Fair Use Doctrine, gives companies the right to use content created by others without permission or compensation in certain cases. Indexing sites like Google have often been found to have the right to provide links to content without permission as part of fair use, if the content used in connection with the link is limited to that necessary to identify the content. . Perhaps of more concern would be the ability of users to post content to a site like Facebook or Twitter by commenting on or criticizing content prepared by a media company without linking or excluding that content. This also has implications for the First Amendment – you wouldn’t want the government to enforce a ban on people using an excerpt from an article published by The New York Times, Wall Street Journal, MSNBC, or Fox News in connection with a comment or a review on this subject. contents.
We recently wrote about the government’s desire to regulate online media because there are critiques of the impact of big tech from all political backgrounds. The 2021 Journalism Competition and Preservation Act is just one of many proposals currently pending in Congress – and more proposals will certainly follow. These proposals should all be treated with caution, because while regulation may be necessary (apparently even Facebook has recognized this need in a set of its own ads now running on all media platforms), regulation can affect the core values of our society given the reach that these platforms now have and the role they played for many of being our place of the modern city where diverse opinions are expressed. We will be following this bill and writing about other aspects of this debate in future articles.