by Vincenzo Tiani
We are in the final stages of the European copyright reform which, although it should have been incorporated into Italian law in June, is still under discussion in the Chamber of Deputies. It is true that Italy is not alone in this delay, which is also due to the pandemic, but this does not prevent the European Commission from initiating an infringement procedure in the event of further delays.
One of the two articles of the copyright directive that has been debated for years is Article 15, which foresees the possibility for publishers to obtain from platforms such as Google and Facebook a compensation for the publication of their online content. Not the whole articles, which are already prohibited by the law, but just their snippets, the previews with photos and text that can be seen when the link to an article is published on social networks, news aggregators or search engines.
The main reason for this change, however, is not so much a problem of copyright as of competition. It is well known that for years, advertising revenues have shifted towards these two companies, decreasing investments in the publishing market. According to publishers, users read less news because they only read headlines and extracts on social networks and aggregators. This obviously does not take into account that readers may simply not be interested in the news. So, in the absence of a change in the business plan over the last twenty years, they tried to solve the problem with a law.
The Italian Competition and Market Authority (AGCM) has recently expressed its concerns about the texts that are currently being circulated in the Italian Parliament for the adoption of the Directive. Not only would the Italian text go beyond what is required by the directive, but it would even lead to an “unjustified restriction of competition“.
Antitrust’s three criticisms of the Italian copyright law
There are three points of concern identified by the Authority. Firstly, the Italian text would place “unjustified constraints on the negotiating autonomy of the parties, and ultimately on the functioning of the markets, especially in the absence of evidence of possible market failures”. For the Authority, it would be more appropriate to rely on industry associations and representatives of existing legitimate rights holders to negotiate on equal terms with “big tech”.
The second point highlights how the criteria identified to assess the economic contribution that the newspapers could require from the platforms take into account the importance on the market of the publishers, the number of journalists employed, the duration of the activity, but these factors are “far from helping to quantify the contribution to the economic result of the content linked”. On the contrary, “they are instead likely to determine improper discrimination to the detriment of new entrant and smaller publishers, unjustifiably favouring incumbent publishers”.
This has always been the position of the National Association of Online Media (ANSO), as confirmed by its vice-president Matteo Rainisio, according to whom this version of the text ‘risks deeply undermining small publishers’. With these criteria, therefore, longer-established publications with larger editorial staffs could demand higher remuneration without a real assessment of the quality of journalism that this directive was supposed to protect. On the other hand, smaller editorial offices with better products could be penalised in the negotiation of fees.
The third point concerns the definition of “very short extracts“, to which the directive recognises an exception and for which no payment would be required. In the Antitrust Authority’s view, the Italian draft does not provide an adequate definition to identify this crucial exception. The Senate has also expressed its views on this point, stressing the importance of having objective criteria for identifying short extracts.
In France, a bitter fight has been going on for two years between Google and publishers on this very point, culminating in a fine by the French Antitrust Authority. Google had in fact chosen to publish just the links without the snippets, using the exception of the short extract, but French publishers saw this move as an abuse of a dominant position. In Italy, the copyright game does not seem to be over yet.
Originally published on Wired Italia
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