Many people in European media and political circles thought the EU’s strict new copyright law would force Google to pay publishers for sending readers their way. Other observers (such as this writer) said the law would probably not have the desired effect.
So, who was right?
The answer to that question is slowly unfolding in France, where press publishers have gone to war with Google over the fees they claim they are owed. And the scenario is playing out in a predictably familiar way.
Fees for traffic
The legislation in question—the EU Copyright Directive—passed in March, forcing EU countries to introduce new copyright rules. One of those new rules allows publishers to demand that Google pay them for reproducing snippets of their text and thumbnails of their images in its search results.
France, a prime mover behind the Directive, was unsurprisingly first to transpose the EU law into its national legislation, with the new French law coming into effect this month. (EU countries have until mid-2021 to do this; so far, France is the only one.) French publishers were eager to flex their new muscles, and thought they might get their way… until Google burst their bubble in September.
Rather than paying the publishers, Google said it would by default stop showing preview content to its French users when they see a link to a European news publication. Publishers can set their websites to allow Google to use snippets of their content for free, but otherwise, Google simply doesn’t use their text or thumbnail images that are covered by the law—meaning it doesn’t need to pay them anything.
“We don’t accept payment from anyone to be included in search results. We sell ads, not search results, and every ad on Google is clearly marked. That’s also why we don’t pay publishers when people click on their links in a search result,” said Google News chief Richard Gingras in a blog post at the time.
Quelle horreur! The French government accused Google of shirking “the spirit and the letter” of the law. “We will not let them do this,” thundered President Emmanuel Macron.
German and French publishers vowed to stand together against what they characterized as an abuse of power by the U.S. giant. And this week, when Google rolled out its changes to news results in France, the country’s media publishers said they were taking their case to court—specifically, the French competition authority.
“Google is offering us a choice between amputating our traffic, which will prevent readers from finding us or accessing our sites via its search engine, and amputating our rights,” complained Pierre Louette, the CEO of the Les Echos-Le Parisien media group.
However, the publishers’ competition tactic has been tried before. And history suggests they will not prevail.
At this point it is useful to rewind several years, to when Germany launched the first predecessor to the EU-wide copyright law. The German “ancillary copyright” law arrived in 2013, following major lobbying by the country’s media giants, which promptly tried forcing Google to fill their wallets.
But rather than pay, Google stopped using snippets of their text and thumbnails of their images—exactly as is now happening in France. The German publishers’ traffic collapsed, as people knew less about the articles on offer and therefore did not click through. So the media houses, including Bild publisher Axel Springer, granted Google a temporary license to reproduce their snippets and thumbnails for free.
The German publishers then complained to the country’s competition authorities, claiming that Google—by far the market leader in search across Europe—was strong-arming them.
The tactic failed miserably—the German competition authority, the Bundeskartellamt, said the publishers had no valid case against Google.
Sure, Google is the dominant player in German search, the regulator said, but “if an online service does not want to acquire a license for the display of snippets and hence only displays search results in a more limited, shorter version, it can do so. There is nothing in antitrust law that would prevent companies from doing so.”
The publishers continued to demand over $1 billion in licensing fees from Google, under the German copyright law, but their attempts failed this year because the German government had failed to follow correct procedures when introducing that law—meaning it was invalid.
Back to France
Seeing as the French situation appears to strongly echo the German experience, it was not surprising to see last week that Margrethe Vestager, the EU’s competition chief, doesn’t think there’s much of a case against Google.
“I think it’s more of a copyright concern from what I know so far,” Vestager said in reference to the French government’s reported eagerness to tackle Google over a competition violation.
And Vestager should know—she is, after all, the watchdog who has successfully prosecuted three antitrust cases against the company.
“The law does not mandate payment for links, and European publishers already derive significant value from the eight billion visits they get every month from people searching on Google,” a Google spokesperson said in a statement. “And of course, we’re happy to answer any questions the Competition Authority may have.”
Even if they lose their competition gambit, the French publishers could be in a worse situation—they could be in Spain, where an even tougher ancillary copyright law was introduced in 2014 at the behest of large media houses.
That version of the law didn’t even leave publishers the option of letting Google use their content for free; they had to charge. So Google just closed down Google News in Spain, causing havoc, particularly for smaller publishers that needed the service to reach the public.
The potential endgames in this war have been demonstrated before, and were therefore glaringly apparent before the EU passed its Copyright Directive. The question now is which one publishers—and Google—will choose.
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