Google and press publishers in the process of reconciliation on the remuneration of the recovery of content

Is the soap opera on the remuneration of the recovery of press content by Google coming to an end? In any case, a crucial step has just been passed with the acceptance on June 21 by the Competition Authority of the commitments made by the American firm on neighboring rights. It endorses nearly three years of proceedings.

It all started with the entry into force of the law of July 24, 2018 which transposed a European directive. She creates a neighboring right to copyright to the profile of news agencies and publishers. She gives them the right to authorize or prohibit the reproduction of their publications by digital platforms. This particularly concerns excerpts from articles, photographs, infographics, videos, etc. which are displayed by these platforms within their services, such as Google Search, Google News or even Discover.

Google circumvents the neighboring right

Google, whose business model is based in particular on sharing content for free, quickly refused to comply with this new obligation. He thus modified the display of his news by leaving only simple links with the titles. Otherwise, the media could expressly tell him that they still wanted to appear in the search engine but without being paid. A situation that did not respect either the spirit or the letter of the law of July 2018.

Faced with this behavior, several press agencies and publishers – the Alliance de la presse d’information générale (AGIP), the Agence France Presse (AFP) and the Union of magazine press publishers (SEPM) – filed an appeal. before the Competition Authority. In April 2020, she agreed with them and urged Google to negotiate “sincerity” within three months of the publication of the decision. The injunctions having not been respected, Google is sentenced to a fine of 500 million euros.

Restore market balance

Following this condemnation, Google presented a series of commitments which – after several negotiations – have just been accepted by the Authority. “Instead of going to condemn the actor who is the subject of an investigation, there is a commitment on his part to take measures aimed at remedying the market imbalance.“, explains Perrine Pelletier, lawyer at the Pelletier firm and intervened alongside AGIP in this case, at L’Usine Digitale.

First, Google is committed to expanding the scope of its commitments to all publishers covered by Article L.218-1 of the Intellectual Property Code whether or not they have “political and general information” (IPG) certification. The same is true for the ownership of related rights to press agencies whose content is included in the publications of third-party publishers. He also suggests making benefit from the provisions of its commitments publishers and press agencies that have already started negotiations or entered into a contract with it under related rights, either directly or through a professional association. Agencies and press publishers who have already concluded an agreement will therefore be able to amend or terminate it free of charge to initiate new negotiations.

Separating neighboring right remuneration from commercial programs

The company is also committed to negotiate in good faith the remuneration due for any recovery of protected content on its services according to transparent, objective and non-discriminatory criteria. Particularly important clarification: these negotiations under neighboring rights must be separated from those carried out under commercial programs offered by Google, such as Showcase. “This is one of the major contributions of the Autorité de la concurrence in the implementation of related rightsunderlines the lawyer. Remuneration under the neighboring right and business partners cannot be mixed because legally it is not the same nature. This distinction gives real substance to related rights.

In addition, Google promises to communicate the information allowing to fix the remuneration for content recovery. To this end, he planned to communicate, as a first step, “a base of minimal information” to each negotiating party within 10 working days in the case of individual negotiations and 15 working days in the case of collective negotiations. This basis includes in particular the number of impressions and click-through rate of protected content on Google Search, Google News and Google Discoveras well as data relating to Google’s revenues in Francewhether direct, indirect and resulting from its role as an online advertising intermediary.

Then, in a second step, he undertakes to communicate the relevant additional information requested by the publishers and press agencies within 15 working days. The most sensitive data, such as Google’s Search ads and Display ads advertising revenue in France, will only be shared with the agent and its experts.

An agent to verify compliance with commitments

The necessary measures will be taken so that the negotiations do not affect the indexing, the classification, or the presentation of the protected content and do not affect the other economic relations which would exist between Google and the press publishers and press agencies. An independent agent will be appointed to ensure the implementation of the commitments made and may enlist the services of a technical, financial and intellectual property expert.

In the event that the parties fail to reach an agreement, they may seize an arbitral tribunal responsible for determining the amount of compensation. In order to take account of the lower financial resources of publishers and press agencies, the latter may, if they so wish, ask Google to fully cover the remuneration of arbitrators.

The neutrality of the arbitral tribunal?

To conclude, the lawyer puts forward certain questions, in particular on the independence of the future agent as well as the deadlines. “These are procedures that are framed by deadlines. What is essential. But by accumulating, they represent precious time”, she notes. Finally, on the possibility of having Google pay the full costs of the arbitration tribunal, this raises the question of neutrality. “When the costs are borne by one of the parties, this biases by definition – even armed with good intentions – the neutrality of the tribunal in question”he says.

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