US lawmakers on August 22 introduced the Journalism Competition and Preservation Act, which will allow digital news organisations to negotiate collectively and secure fair terms from online platforms like Google and Facebook that regularly access news content without paying for it.
“Today, the free press is in economic freefall—especially local news—thanks to the free-riding of dominant online platforms, who seize news content to enrich their platforms but never pay for the labor and investment required to report the news. We would never expect a platform to stream movies without paying a film’s creators. But because Google and Facebook simply take news content for free and have monopolized the digital advertising market, newsrooms today are in dire economic peril—with regional and local news publishers downsizing or shuttering at alarming pace. The moment is urgent. At a time when journalism is more important than ever, the press is facing an extinction-level event. Congress must act.” — US Representative David Cicilline, Chair of the House Judiciary Subcommittee on Antitrust, Commercial and Administrative
The bipartisan Bill is co-sponsored by Senator Amy Klobuchar, Senator John Kennedy, Representative David Cicilline, Representative Ken Buck, and Senate and House Judiciary Committee Chairs Dick Durbin and Jerrold Nadler.
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Why does this matter? At home, the Competition Commission of India is currently investigating Google following a complaint from the Digital News Publishers Association (DNPA) alleging that the company takes advantage of its members’ news content in search results but denies them fair advertising revenue. For this reason, some countries like Australia, France, and Spain have mandated that tech companies pay news publishers for their content, and other countries like Canada and New Zealand are exploring similar legislation. The Indian government too is looking to make tech companies like Google, Facebook, Microsoft, and Twitter pay Indian news organisations a share of their revenue, but the details of how the government will approach this are scarce. The Times of India reported that this might be enforced through regulatory interventions, which may happen as part of revisions to the existing IT laws. The US Bill can help shape the regulations at home.
What does the Bill propose?
The Journalism Competition and Preservation Act would:
Empower news publishers to come together to negotiate with covered platforms: The Bill will empower eligible digital journalism providers (i.e. news publishers and broadcasters) to form joint negotiation entities to collectively negotiate with a covered platform over the terms and conditions of the covered platform’s access to news content. An entity must consist of at least two members and must establish rules and procedures to govern decision-making by the entity. Further, each eligible digital journalism provider should be entitled to 1 vote on any matter submitted to a vote.
- Eligible news publishers: Defined as news publishers with fewer than 1,500 exclusive full-time employees who publish one or more publications in the form of any website, mobile application, or another digital service that performs a public-information function comparable to that traditionally served by newspapers and other periodical news publications and updates its content on at least a weekly basis. Furthermore, the publisher must have generated at least $100,000 in annual revenue from its editorial content in the previous calendar year and must not be owned or controlled by foreign powers.
- Eligible broadcasters: Defined as non-television network news broadcasters that engage in standard newsgathering practices by engaging professionals to create, edit, produce, and distribute original content concerning local, regional, national, or international matters of public interest through activities including conducting interviews, observing current events, analyzing documents and other information, and fact-checking through multiple firsthand or secondhand news sources. The broadcaster must be updating its content on at least a weekly basis and must use an editorial process for error correction and clarification.
- Covered platforms: Covered platforms are defined as platforms that have at least 50 million US-based users or subscribers and are owned or controlled by a person that has either net annual sales or market capitalization greater than $550 billion or at least 1 billion worldwide monthly active users.
Require covered platforms to negotiate in good faith with the eligible news organisations: A joint negotiation entity can send a notice to a covered platform to begin negotiations, which must be acknowledged by the covered platform within 30 days. Following this, any negotiation conducted should be “conducted in good faith and designed to reach an agreement regarding the terms and conditions by which the covered platform may access the content of the eligible digital journalism providers,” the Bill states.
A party is not conducting negotiations in good faith if the party:
- refuses to negotiate, except where news providers decide to jointly deny a covered platform access to content
- refuses to designate a representative with authority to make binding representations
- refuses to meet and negotiate at reasonable times and locations or otherwise causes unreasonable delay
- refuses to put forth more than a single, unilateral proposal
- fails to respond to a proposal of the other party, including the reasons for rejection
- enters into a separate third-party agreement that unreasonably impedes the party from reaching an agreement with the negotiating party
- refuses to execute a full and written agreement that has been reached verbally
- is the covered platform and it enters into a separate agreement with a news provider that impedes the provider from participating in negotiation under this Act
Require news providers and covered platforms to make reasonable offers: As part of the discussion, both the entity representing the digital journalism providers and the covered platform must make a reasonable offer regarding the terms and conditions by which the platform may access content, substantiated with comprehensive data and methodologies, including expert analysis, that takes into consideration:
- terms and conditions comparable to those found in commercial agreements between similarly situated entities, including price, duration, territory, value of data generated directly or indirectly by the content, and the ranking, identification, modification, branding, and placement of the content on the platform
- the fair market value to the covered platform of having access to the content of the digital providers and the resulting incremental contribution to the revenue of the platform
- the investment of the eligible digital journalism providers, including the number of journalists employed, that are members of the joint negotiation entity in producing original news and related content
Enable news publishers to demand final-offer arbitration if their negotiation fails: If negotiation between non-broadcaster news publishers and a covered platform fails to result in an agreement after six months, the publishers have the right to initiate a final offer arbitration against the covered platform for an arbitration panel to determine the terms and conditions. The arbitration will be decided by a panel of 3 arbitrators under the expedited procedures of the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures and Final Offer Arbitration Supplementary Rules. Both parties can submit their proposals and the panel will pick one proposal without any modification.
Provide a limited safe harbour from antitrust laws for news providers: The Bill will create a limited safe harbour from federal and state antitrust laws for eligible digital journalism providers that allows them to participate in joint negotiations and arbitration and jointly withhold their content from a covered platform.
Prohibit discrimination by a joint negotiation entity or a covered platform against a news provider: The Bill will prohibit discrimination against an eligible digital journalism provider based on its size or the view expressed in its content.
Prohibit retaliation by covered platforms against a news provider: Covered platforms cannot retaliate against an eligible digital journalism provider for participating in a negotiation by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the provider on the platform.
Increase transparency in how funds are used by news publishers: Digital journalism providers should provide public transparency regarding the use of any funds received under or related to agreements reached under the Act “to support ongoing and future operations to maintain or enhance the production and distribution of news or information that concerns local, regional, national, or international matters of public interest, including public reporting regarding the amount of funds received each year under or related to each such agreement or decision.”
Allow civil action lawsuits:
- Any eligible digital journalism provider or covered platform that participated in negotiations under this Act may bring a civil action in an appropriate district court of the United States for not acting in good faith during negotiations or for violating the terms of the agreement reached.
- Digital journalism providers that are discriminated against by a joint negotiation entity or a covered platform may bring a civil action in an appropriate district court.
- Digital journalism providers that are retaliated against by a covered platform may bring a civil action in an appropriate district court.
Sunset within eight years: This Act will cease to have effect 8 years after the date of its enactment.
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