DAVID AND GOLIATH

The EU’s copyright law could give news publishers power over Google—if they band together

Oh Google!
Oh Google!
Image: Reuters/Adnan Abidi
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The European Parliament today (Sep. 12) approved a controversial overhaul of copyright law that could change the way tech giants operate. The result comes two months after the lawmakers delayed the vote because activists claimed that its most-contested elements, Article 11 and Article 13, would “end the internet.”

Article 11 grants news publishers copyright over headlines and news snippets, which would require aggregation platforms like Google News to pay media companies a “link tax” in order to share articles. Article 13 requires platforms that depend on user-generated content, like YouTube, to install software that would scan uploads for intellectual-property violations—like, say, a video with a Beatles song in the background—before they occur.

The law’s supporters argue that the internet has changed how we consume media, and it’s time to give more power to the content creators, rather than the platforms that aggregate their work. Opponents, however, argue that such regulation will clamp down on the open internet.

The reality, as always, is somewhere in the middle.

As a member of an advisory panel helping the UK government figure out how to sustain high-quality journalism, I’ll focus on Article 11. You can read about Article 13 in a post written by my colleague, Ephrat Livni.

There is no doubt that tech platforms wield a lot of power over news publishers. Earlier this year, for example, Facebook tweaked the algorithm that determines what users see in their feeds. The change meant that Facebook users now see fewer links to news and more content from their friends. That, in turn, caused a big drop in web traffic for many news publishers and even drove a few out of the market.

That said, it’s unclear whether Article 11 would indeed correct the market distortion. In 2014, when the Spanish government implemented a version of Article 11—requiring Google to pay news publishers for aggregating links—the tech giant instead opted to simply shut Google News in Spain. That caused the demise of a few news publishers.

Some experts who support the EU law say that what happened in Spain is unlikely to happen across Europe. That’s because, as a bloc, the EU will have much more negotiating power with Google. The company can’t afford to suddenly lose traffic to Google News from 500 million EU citizens. The same argument holds for Facebook.

Underpinning the argument in favor of Article 11, however, is the assumption that news publishers will band together and use their collective bargaining power to make Google pay them for content. And it’s not clear if they will.

Instead, there’s a chance that Article 11 could backfire. Given how much traffic Google and Facebook drive to news publishers, some publishers might opt to sign away their copyright claims, preferring to let aggregators link to their articles for free rather than lose readers. That would mean that Google could simply opt to aggregate articles from some publishers but not others, hurting the journalistic community overall. Moreover, other smaller aggregators—say, Digg or Flipboard—that lack the leverage that Facebook and Google have over news publishers may be required to pay for the links, resulting in an uneven application of the law.

We don’t know yet how the law will shake out. The next step, likely to happen early in 2019, is a “trilogue” between the parliament, the European Commission, and the leaders of the EU’s members states in the European Council. If all three parties agree with the parliament’s vote, then each member state receives the right to implement the directive as it sees fit.

But regardless of whether Article 11 helps or hurts news publishers, the EU’s vote makes a larger point. It marks the world’s growing recognition that the internet functions as a public square. Companies like Google and Facebook control large pieces of that square, which means they wield a lot of power over the conversations that can happen there. The EU is determined to find ways to correct the imbalance and hand some of that power back to the people who actually create public dialogues.