Editorial contents on the internet: seeking a fair balance between promotion of the competition and protection of the intellectual property

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In 2011 the Italian Antitrust Authority (Autorità Garante della Concorrenza e del Mercato – hereinafter “AGCM”) drew up a recommendation aimed to highlight the results of the investigation conducted by AGCM upon the complaint of FIEG (Italian newspapers publishers) toward Google in 2009[1].

Specifically, AGCM focused on the appropriate valorization of the editorial contents published on the web in the lack of a remuneration system allowing the right-holders to obtain an adequate consideration in relation to the usage of their works.

Moreover, having realized the absence of specific rules related to the use of contents through the new media, AGCM invited the institutions to adopt a regulation aimed to promote a “virtuous cooperation” between right-holders and over the top providers of content aggregation services, which may lead to a more equitable allocation of the advertising revenues connected to the publication of editorial contents.

In May 2013, AGCM has raised again the issue with a recommendation that retraces the crucial points of the debate.

The Authority acknowledges the competition framework and the importance of the internet for the development of digital economy and for the efficient allocation of the resources.

In the current scenario, along with “traditional” content producers and distributors, new subjects and new means as social networks, content aggregators, internet portals have acquired a more decisive role in the transmission of the information and sometimes constitute an alternative preferred by the end users.

Such dynamic would have produced, in the Authority’s judgement, an alteration of the value chain since who produces the editorial content (and control the relevant rights) is not always in the position to receive an adequate consideration for its exploitation through the platforms on which the contents have been published.

The 2013 recommendation of the AGCM intends to stimulate the debate also through the reference to the solutions adopted by some EU Member States.

In particular it mentions the French transaction that has resolved the contrast between the French publishers and Google. The agreement sets out the creation by Google of a 60 million euro fund aimed to support the transition from the paper to the digital media.

Such fund shall be managed by a board made of seven members (including representative of the press, representatives of Google and independent members) which will be committed in investing the available resources in a period between 3 and 5 years, in worthy projects.

The publishers may also benefit of favorable conditions for the use of Google advertising services in order to increase the revenues generated through the internet.

The AGCM also mentions the German law proposal, dated February 2013[2], which provides the identification of an exclusive right of the publishers to make available to the public the editorial content through the websites.

The proposal intends to protect the publishers towards those subjects (professional service providers operating search engines or other services) having regularly access to the editorial contents with the purpose to develop their own activity. Such protection entails the faculty for the publishers to ask for the inhibition of the unauthorized exploitation of editorial contents.

This right should be subject to a one year prescription and an equitable remuneration in favor of the authors of the contents.

The law would not be applicable towards those subjects using the contents occasionally and private users and consumers.

The observations of AGCM do not lead to a univocal solution but they are finalized to invite the Italian institutions to adopt practical initiatives in the international organizations also by making an accurate reflection and a ponderous balance of the interests involved.

In the Authority’s opinion, the provision of a lump sum – set out in the French solution –would not satisfy the need to promote the creation and the development of a market of online editorial contents as this would not ensure a remuneration to the publishers. Such solutions would constitute a “generic form of compensation”.

On the other hand, the introduction in the Italian legal framework of an exclusive right concerning the publication of a link (similar to the German proposal) generates doubts in relation to the compatibility with the applicable law and in particular with the regulation of the use of excerpts which constitute an exception provided by the Italian Copyright Law[3]. In any case AGCM has asserted that under a competitive point of view a legislative solution would generate “a clear advantage to the static and dynamic allocative efficiency of the markets within the sector”.

A solution that makes tighten the faculty to use excerpts of editorial contents, conditioning it to authorizations and fees, would risk to have an impact on the right of the end users – the citizens – to access easily the information.

It is clear that the services provided by the aggregators allow to reach a huge quantity of contents and a plurality of voices that the traditional media for their nature are not able to guarantee.

In this framework, it is crucial to preserve the fundamental role of the internet in the circulation of the knowledge and of the ideas which should represent the counterbalance of all the proposal that in the name of the protection of other rights and interests tend to impose limits and restrictions.

In a period in which the traditional publishers are dealing with an uncertain transition from the paper to the new media, a solution which lead to the creation of new rights and fees risks to come too late compared with the current needs of the publishing industry. This could also be ineffective if it is not combined with a system of collective management of the fees and reporting which may guarantee a distribution proportioned to the actual usage of the editorial contents.

In the medium term the definition of an agreement between aggregators and publishers could be an opportunity for the development of editorial projects on the digital platforms.

It is desirable that the service providers and the entire cultural industry define forms of collaboration which may allow the publishers to develop to the best of their possibility their digital projects and to guarantee the aggregators to access high-quality contents.

The unheeded call of the Authority should be ideally forwarded to the main market players which may better identify a bearable model.

At the same time, it would be advisable to start a careful assessment within the EU institutions in order to find a solution shared by all the Member States.



[1] A420- FIEG/GOOGLE

[2] Entwurf eines Siebenten Gesetzes zur Änderung des Urheberrechtsgesetzes (“Bill of a seventh amending law of the copyright law”)

[3] Article 65 paragraph 2 of the Law 22 April 1941 n. 633 (“Legge sul Diritto d’Autore”)

 

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