Protecting media copyright online
By Wei Hsin-fang 魏杏芳
Nov 01, 2021
In the latest development on disputes between big tech companies and media organizations over payment for reusing news content, Facebook on Oct. 21 signed a multiyear agreement with a French publishers' lobbying group to pay for news content shared by its users. The legal basis for such remuneration originated in EU digital copyright law reform in 2019, which extended "neighboring rights" to snippets released by publishers.
Google also reached similar deals with French news publishers earlier this year. In February, the Australian parliament passed the News Media Bargaining Code to force Google and Facebook to negotiate with news providers for the payment of shared content.
These movements have sparked enthusiastic discussion in Taiwan. Associations representating newspapers, publishers and other media are strongly urging the government to take remedial action. Legislators across party lines have called for the government to step in with the view, among others, that media and freedom of speech are the cornerstones of democracy.
The most critical problem for the government has always been which ministry or authority should be in charge of the matter.
Minister Without Portfolio Kuo Yau-hwang (郭耀煌) said that this is an issue requiring collaboration across multiple ministries, utilizing the expertise of different professions and disciplines. This author feels, however, that Taiwan has not yet decided to enact a new law, not even an outline of possible measures to respond to the matter, so even if a responsible authority is designated, the time for enacting such laws is uncertain.
Looking at the structuring of digital ads, Google and Facebook act as "regulators" on their platforms, where publishers sell space for advertisements. Publishers or advertisers interact according to models designed by Google or Facebook, including prices for buying and selling ads, but there is insufficient transparency on the rules for transactions.
Given that many aspects of how platforms function are not well understood, neither by academics nor government authorities, the imbalance between news publishers and the major gateways to the Internet would only worsen, particularly when accompanied by the extreme use of data collection by the incumbent tech giants.
Google and Facebook have an incredibly large impact on individuals, businesses and society, and this intrinsically unfair competition environment should be addressed.
Theoretically, clauses providing neighboring rights do not exist in the Copyright Act (著作權法); therefore the European model is not the optimal choice for Taiwan.
However, competition law can play a constructive role in the evolution of a digital economy. Even though competition law is not a proper tool for the purpose of facilitating negotiations on prices between specific parties, its enforcement could help create a healthier business environment in which all participants can act freely and fairly.
The Fair Trade Act (公平交易法) includes a provision that is not found in US or EU competition law, and could be seen as a reflection of Taiwanese values with its "catchall" function. Under Article 25 of the law, "no enterprise shall otherwise have any deceptive or obviously unfair conduct that is able to affect trading order" which is not otherwise provided by the act.
The Fair Trade Commission's "Guidelines on the Application of Article 25 of the Fair Trade Act" include "exploiting the fruits of others' work" as an example to indicate obviously unfair means when engaging in market competition or commercial transactions.
The free use of news by digital advertising platforms is no doubt a new category of problematic conduct on the digital landscape. Therefore, innovative thinking and new theories for enforcement must be considered. Article 25 of the Fair Trade Act is well-suited to be applied by the competition enforcer to examine if any unfair and illegal exploitative practices could possibly be implemented by Google and Facebook, which could consequently harm newspapers and media in Taiwan.
Wei Hsin-fang is a Fair Trade Commission commissioner. All the opinions expressed in this article are solely her own.
(Originally published on TAIPEI TIMES, Editorials page8: https://www.taipeitimes.com/News/editorials/archives/2021/11/01/2003767098)