Snippet Taxes Not Only Violate The Berne Convention, But Also Betray The Deepest Roots Of Newspaper Culture

from the won't-someone-think-of-the-poor-Rupert-Murdochs? dept

Last week Techdirt wrote about Australia's proposed News Media Bargaining Code. This is much worse than the already awful Article 15 of the EU Copyright Directive (formerly Article 11), which similarly proposes to force Internet companies to pay for the privilege of sending traffic to traditional news sites. A post on Infojustice has a good summary of the ways in which the Australians aim to do more harm to the online world than the Europeans:

1) The protection for press publications provided by [the EU's] DSM Article 15 does not apply to linking or the use of "very short extracts." The Code explicitly applies to linking and the use of extracts of any length. Accordingly, the Code applies to search engines and social media feeds, not just news aggregation services.

2) The Code forces Internet platforms to bargain collectively with news publishers or to be forced into rate setting through binding arbitration. DSM Article 15 does not require any similar rate-setting mechanism.

3) The Code imposes burdensome obligations on the platforms, some of which directly implicate free expression. For example, platforms would need to provide news businesses with ability to "turn off" comments on individual stories they post to digital platforms. DSM Article 15 imposes none of these obligations.

4) The Code prohibits the platforms from differentiating between an Australian news business and a foreign news business. This provision prevents platforms from exiting the market by taking care not to link to Australian news content. If the platform links to international news content, e.g., articles from the New York Times, it must also link to (and therefor pay for) Australian news content. DSM Article 15 does not contain a non-differentiation provision.

The same blog post points out that these elements are so bad they probably violate the Berne Convention -- the foundational text for modern copyright law. Article 10(1) of the Berne Convention provides that:

it shall be permissible to make quotations from a work which already has been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

Although the Berne Convention doesn't have any mechanism for dealing with violations, Berne obligations are incorporated in the World Trade Organization's Agreement on Trade Related Intellectual Property Rights (TRIPS) and in the Australia-US Free Trade Agreement. Both of those offer dispute resolution that the US could use to challenge the Australian Code if and when it comes into effect. The proposed schemes to force Internet companies to pay even for quoting snippets of news not only violate the Berne Convention: they are also a betrayal of the deepest roots of newspaper culture. That emerges from a fascinating post by Jeff Jarvis, a professor at CUNY's Newmark J-school. He writes:

For about the first century, starting in 1605, newspapers were composed almost entirely of reports copied from mailed newsletters, called avvisi, which publishers promised not to change as they printed excerpts; the value was in the selecting, cutting, and pasting. Before them the avvisi copied each other by hand. These were the first news networks.

In the United States, the Post Office Act of 1792 allowed newspapers to exchange copies in the mail for free with the clear intent of helping them copy and publish each others’ news. In fact, newspapers employed "scissors editors" to compile columns of news from other papers.

In other words, these new snippet taxes are wrong at every level: practical, legal and cultural. And yet gullible lawmakers still want to pass them, apparently to protect defenseless publishers like Rupert Murdoch against the evil lords of the mighty Information Superhighway.

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Filed Under: australia, berne convention, copyright, google news, history, journalism, link tax, news, rupert murdoch, snippet tax
Companies: facebook, google


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  • icon
    Bloof (profile), 10 Feb 2021 @ 11:19am

    Rupert Murdoch does not give a damn about newspaper culture, or journalism, he wants to produce propaganda and to get others to pay for it. If he could he would fire every single journalist on his payroll and replace them with the racist madlibs of Breitbart. The Australian law is designed simply to protect his fortune and his political power, print media is dying and all he cares about is getting someone else to pay him to fill that gap because the flood of rightwing propagandists on facebook have proven that just about anyone on the internet can do what he does.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 10 Feb 2021 @ 11:24am

    Ah legalized extortion...

    The Code prohibits the platforms from differentiating between an Australian news business and a foreign news business. This provision prevents platforms from exiting the market by taking care not to link to Australian news content. If the platform links to international news content, e.g., articles from the New York Times, it must also link to (and therefor pay for) Australian news content. DSM Article 15 does not contain a non-differentiation provision.

    And this is why it's so freakin' hard to do parody these days, how do you parody something like this?! 'If you do business in the country at all you are required use our product and you are required to pay us for it.'

    When spain pulled a similarly stupid stunt people were joking that in response to Google pulling service spanish politicians would pass a 'you are required to do business in our country' law and yet here we have autralian politicians proposing just that, because apparently refusing to support a given company is flat out illegal in australia.

    And yet gullible lawmakers still want to pass them, apparently to protect defenseless publishers like Rupert Murdoch against the evil lords of the mighty Information Superhighway.

    No. They absolutely do not deserve the benefit of the doubt here, were they as gullible and stupid as would be required to not see the problems with this they'd have trouble getting dressed, with something as complex as holding a job entirely beyond them, and since they can do both they clearly do not meet that requirement. They know full well what they're doing and deserve to be called out and condemned as the corrupt individuals that they are showing themselves to be.

    reply to this | link to this | view in chronology ]

  • icon
    farooge (profile), 10 Feb 2021 @ 11:43am

    Are naked links the answer?

    What if search engines simply provide naked links to Australian news sites? I think most people would know what was happening so there wouldn't be a lot of confusion.

    You could take a step further and obfuscate the text extracted from those sites but do it in a way that an (unofficial) browser add on could then 'fix'.

    You could even throw out takedown notices to a random list of add on providers every once in a while if you have to .. knowing a new batch would pop up as soon as you did. This cat and mouse game may get Australian citizens annoyed enough to demand the law be rescinded.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 10 Feb 2021 @ 11:43am

    I find it insulting to say that they are trying to make google pay for the privilege of linking. This implies that google is actually getting something in return (even if we might disagree that it has any real value)

    In reality, they tell google that there is no way for them not to pay, they cannot stop linking to news sites and not pay. They are paying because they are told they have no choice but pay, not in exchange for anything, even the privilege of linking or snippets. The only way to avoid it is to make sure they are out of australia's jurisdiction

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 10 Feb 2021 @ 1:54pm

      Re:

      Based upon the fourth point it sounds like they're trying to force Google into a pay/pay situation, where Google cannot simply just cut off the australian parasite and still link to intelligent(or at least more intelligent than their australian counterparts) newspapers from other countries, apparently having missed out that Google is completely willing to drop links/snippets entirely if pushed too far.

      reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 10 Feb 2021 @ 11:44am

    these new snippet taxes are wrong at every level: practical, legal and cultural

    That’s never stopped greedy motherfuckers before.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2021 @ 1:02pm

    Google is right to leave australia if this go,s into force,
    its even worse than the quotes, google is being asked to give info on how it treats links from any news service and how it ranks them .this law is being passed by stupid politicans who want more money for murdoch or oz news sources,
    say google leaves oz whats to stop people in australia going to google.com,google.uk, google.eu etc
    this law sounds like it was crafted by newspapers and cut and pasted into
    existance by politicans .

    even china does not ask search engines to pay for link,s .
    this breaks the web and fair use,
    its orwellian, google does not make money from news.
    it provides links as part of its search capability.
    spain tried this and it was a disaster .
    australian needs a tech expert to help them naviagate the modern online
    news business ,
    like the music business needed steve jobs to drag em into the 20th century and set up itunes to sell digital music to consumers in an easy practical manner,
    after the music business set up various awful mediocre services to sell music on phones or pcs before the iphone existed.

    australia is not russia ,maybe they should just try operating in a free market
    and bring in tech experts to help them to provide a good product
    to the public.
    its beyond parody, its like use our product,
    if you do not make a financial agreement with all news sources
    you will be forced to go to a committee which will set a price for snippets,
    link,s ,quotes of any length.
    maybe this law was invented by oz mafia,
    it would be a shame if something happened to your store if you dont pay
    us .

    reply to this | link to this | view in chronology ]

  • identicon
    Philippe, 10 Feb 2021 @ 1:22pm

    There is nonetheless a very real problem for journalism. Advertisement dollars which funds an important part of journalism has shifted in great amounts from the producers of news such as newspapers, be they in paper or electronic form to Facebook and Google to name the two biggest who profit from the content published by others. I subscribe to an independant newspaper because I value their content but this behavior it is not the norm anymore.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Feb 2021 @ 1:46pm

      Re:

      Relying on advertising revenue to support journalism has always been a big problem. Back when ads were plentiful in news papers, advertisers had way too much say in what could be printed (especially large advertisers, the very people you didn't want to have such power).

      Journalism has had a bad business model for generations. I don't know what a good one would look like, but the death of ad supported journalism isn't a bad thing and may be the (admittedly painful) first step in finding one.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 10 Feb 2021 @ 1:57pm

      There is nonetheless a very real problem for journalism.

      A government forcing Google to subsidize journalism by way of a link tax will not solve that problem.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 10 Feb 2021 @ 2:00pm

      Re:

      I might have more sympathy were the parasites trying to adapt and find new sources of revenue rather than trying to force Google to both provide them traffic and the benefits that brings and pay them for the 'privilege', demanding that if Google links to any newspaper on the planet they must link to australian ones and pay for doing so.

      At that point any sympathy I might have had for their financial woes goes right out the window to be driven over by an entire fleet of buses, and they will fully have earned the oncoming tanking of their traffic and relevance when Google drops the lot of them from it's platforms and services.

      reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 10 Feb 2021 @ 2:07pm

      Re:

      Google and facebook aren't profiting off the content created by others they are profiting off their own content. The fact that stuff exists on the web doesn't draw people to google, the fact that google can sift through that information for your so efficiently does.

      They saw a need and made something to fill the need. They didn't create the need. Similarly, no one is twisting anyone's arm to post anything on facebook. Facebook profit's because they created a service people want to use.

      News orgs are failing because they were relying on being gatekeepers of news and facts when they have no right to be.. Generally even they themselves admit that you can't prevent other people from repeating facts and news. It worked ok before just because information travelled slowly. Now it travels fast. It's nothing to do with facebook or google it's just the internet.

      They need a new plan that doesn't rely on being gatekeepers of news and facts. Google and facebook could both vanish overnight it wouldnt help them any. It's just going to get worse, they need to change

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Feb 2021 @ 3:12pm

        Re: Re:

        Given the self publishing platforms and funding services like patreon, and the ability to build support networks, do reporters need newspapers? That is with the Internet it is quite possible to have in depth reporting without newspaper as companies.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 10 Feb 2021 @ 6:04pm

      Re:

      It does not logically follow that because newspapers lost ad revenue and google gained, that the latter caused the former.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Feb 2021 @ 6:44pm

      Re:

      The interesting thing is that Google does not monitize the news.google.com with advertising. Unless you count the weather forcast as an advertisment, go look and count the advertisments you find there. May I suggest the total is zero?

      So again explain to me how Google profits from news links. I seem to have missed it.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 10 Feb 2021 @ 11:23pm

      Re:

      Weird - you keep saying "journalism", but the story is mainly about Murdoch papers, which do no such thing.

      "Facebook and Google to name the two biggest who profit from the content published by others"

      No, they make money by providing services that complement, not replace, the news sites themselves. Newspapers have been whining about the internet since the 90s, when people found that it was way more useful to them than the classified ads that used to make a lot of newspaper revenue, and they're still whining about their inability to adapt.

      Well, some of them are, anyway, others have competently adapted their business models.

      "I subscribe to an independant newspaper because I value their content but this behavior it is not the norm anymore."

      Perhaps because most newspapers aren't worth the digital paper they're printed on, and have lost credibility since choosing to chase clickbait dollars and republishing the same AP feed as everyone else, instead of producing actual journalism worth paying for?

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 11 Feb 2021 @ 1:45am

      Re:

      "There is nonetheless a very real problem for journalism."

      It is, but lobbying lawmakers to run out and find the people who ought to be paid for advertising for the newspaper's behalf and extort money out of them for providing the news media a free service isn't the answer.

      reply to this | link to this | view in chronology ]

  • icon
    The Central Scrutinizer (profile), 10 Feb 2021 @ 3:28pm

    Our Idiot in Chief, aka Scotty from Marketing, has been talking to Microsoft about Bing filling the Google gap, if and when Google stops providing search here. Great, a Microsoft monopoly on search! What could possibly go wrong with that?

    The Greens have even proposed a publicly funded search engine. Good grief. Imagine all the vested interests demanding that certain search terms be barred, etc. but that's the level of competency most of our politicians have.

    If the proposed code goes ahead, with its insistence that Google provide 28 days notice of any upcoming algorithmic changes, then I wouldn't blame Google one bit for blocking search in Australia. 28 days notice! Talk about fucking up a business.

    The hollow men of the Liberals always bang on about free market forces and all that crap. It seems they're more than willing to give that idea up to look after Rupert and his cronies. The level of hypocrisy is staggering, to say the least.

    reply to this | link to this | view in chronology ]

    • icon
      z! (profile), 10 Feb 2021 @ 5:28pm

      28 days?

      It would be sensible for google to provide a notification every hour that they're "changing the algorithms". Of course, what's announced today and what's implemented in four weeks may vary.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Feb 2021 @ 7:35pm

      Re:

      A publicly funded search engine would work. A not-google search engine would also work. ... because the PM is the one who decides which search engine companies get forced into arbitration.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Feb 2021 @ 4:59am

      Re:

      Microsoft is free to talk as long as they're explicitly not subject to the law, but I guarantee Bing will also leave Australia if required to pay for links.

      And anyway no alternative will save the politicians behind this from the ire of the masses who think Google IS the internet.

      reply to this | link to this | view in chronology ]

  • identicon
    Châu, 10 Feb 2021 @ 6:23pm

    Newspaper History Is Remix Culture

    thanks for newspaper history. Now have one extra example of industry come from remix culture.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 10 Feb 2021 @ 7:15pm

    What Alphabet should do is....

    ... simply buy Australia outright. They're worth about 900B (USD) right now (give or take a few million), and Australia's GDP is just over 1.3T (USD). That's close enough for investment purposes, I should think. And if they need to raise just a bit more capital, they could go their employees, and ask "Hey, wanna be a part-owner of an entire country?"

    Naw, on second thought, there'd be too many rabble rousers that would constantly cause more trouble than the place is worth. Never mind.

    reply to this | link to this | view in chronology ]


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