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.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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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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  1. 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,, 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 .

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