By Ana María Correal, IP / Foreign Lawyer
Digital technologies are changing the way we live and communicate every day but also the way we work, learn and access news and information. Thanks to digital platforms such as Facebook and Google News, every piece of content is at the tip of our fingers and at basically no cost. However, the downside of this is that publishers and journalists across Australia are struggling to stay afloat and to adapt to the new digital reality of the “Digital Age”. In this context, is it possible for digital platforms and media publishers to coexist by finding a sustainable and profitable business model?
In Australia, Copyright has been expanded through legislation, and the need for a new reform that amends the Competition and Consumer Act 2010 has sparked a heated debate between digital platform corporations and Australian news businesses. Recently, the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 was passed by both Houses of Parliament the Australia’s House of Representatives and the Senate. This Code aims to ensure that publishers and journalists are remunerated by digital corporations for their news content posted on digital sites.
The Code came in response to the concerns made by The Australian Competition & Consumer Commission (ACCC) in its Digital Platforms Inquiry Final Report regarding the bargaining power imbalances between news media companies and major digital platforms. While in the Australian Government’s eyes, this Code will guarantee that news businesses are fairly remunerated for the content they create, big tech firms, particularly Facebook and Google, have fiercely opposed it by announcing restrictions to publishers and users in Australia for sharing or posting news, or by threatening to pull out from the Australian market altogether.
The Bill will require Digital Platform Corporations to enter negotiations with registered News Companies about financial remunerations for the use and reproduction of news content. Digital Platform Corporations can remunerate different news media businesses through tailored commercial agreements and ACCC must receive a written notification of said agreement.
Previously, if the bargaining parties (aka. a Digital Platform Corporation and a News Business Corporation) did not reach an agreement within three months, arbitration could commence. However, the new amendment provides a different framework for negotiation, which allows for a mediation process to take place prior to resorting to arbitration.
This Bill would be a historic reform, as expressed by the Treasurer Josh Frydenberg, and may become law one day. If this were to happen, it would make it the first of its kind and may be the predecessor of similar legal frameworks that would change the landscape of the, until now, under-regulated digital technologies.
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 Amendment 4, Section 52ZL(2)