"Fair" Digital News "Bargaining"

Reaction to a Compelled Outcome

Shayne Currie – who writes the Media Insider column for the Herald – wrote on 12 September about the latest round in the saga of the Fair Digital News Bargaining Bill (FDNBB) which has yet to be redrafted and put before the House.

Mr. Currie of course is an NZME employee and is hardly going to put forward a report that suggests the FDNBB is wrong-headed. His employer will benefit greatly from the enactment of a means by which large tech platforms like Google subsidise mainstream media as a result of what effectively is a compelled “bargaining” process which, if unsuccessful, will result in an outcome impose by a regulator.

In this latest round it appears that Google is playing hardball, and why not. In the face of a Government who appears set on what are essentially compelled outcomes, why shouldn’t they take a firm stance.

One source cited by Mr Currie – and looking at the language of the quotes it is hard to see this source as dispassionate – states that Google was “.. playing their usual games, being as obnoxious as they can be.”

Welcome to the jungle.

Mr Currie goes on to state:

“The source indicated the tech giant had even raised the spectre of reviewing its New Zealand operations – the source said any threat of a pullout would be “ludicrous” and extremely unlikely given Google operated a $1b business here and Microsoft would move in rapidly with its own search engine, Bing.”

Thus Google has earlier said it would have to “reassess the manner in which it operates in New Zealand” if the “misconceived” Fair Digital News Bargaining Bill is passed into law.

Fair enough. Facebook has done just that in answer to a similar proposal by the Canadian Government.

Google would like to see the Bill progress no further or alternatively that it should be exempt from its provisions (as it is from the Online News Act in Canada) on the basis that it already has in place about 20 commercial partnerships with New Zealand publishers – representing almost 50 different mastheads – with the tech giant paying several millions of dollars each year to showcase news content on its search engine. These arrangements are likely to be jeopardized.

I have suggested that the Fair Digital News Bargaining Bill is unnecessary. The use of media content by online platforms is a copyright issue. I have suggested that a licensing arrangement should be put in place. Essentially Google’s agreements occupy that position on the spectrum.

There are complexities in licensing in the Digital Paradigm. These complexities are examined by Faith Majekolagbe of the University of Alberta and Kunle Ola of the Australian Catholic University in an article entitled ‘The Complexities of Music Licensing in the Digital Environment and the United States’ Music Modernization Act “Solution” appearing in (2024) 46 European Intellectual Property Review p. 160.

The article deals with digital music content but in my view the difference between music and news lies in the nature of the content. Both within the current context occupy the digital space.

Digital music providers must obtain licences for the various copyrights in songs before they can legitimately disseminate music to consumers. The music licensing regime in the United States is, however, convoluted, and difficult to navigate, making licensing of music for digital uses quite onerous.

In a bid to simplify the process for digital music providers, Congress enacted the Music Modernization Act (MMA) which creates a compulsory blanket licensing system for the mechanical reproduction of musical works.

The article examines the complexities of music licensing in the United States and the extent to which the MMA simplifies the licensing process for digital music providers.

The authors argue that creating a one-stop-shop for the clearance of all rights involved in digital uses of music is the way forward for simplifying the music licensing process in the digital environment.

We do not need special legislation like the Music Modernization Act. Believe it or not there is a one-stop shop available in New Zealand under the provisions of the Copyright Act 1993. This, rather than the FDNBB, is the route that should be travelled.