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Jan. 19, 2021, 12:03 p.m.
LINK: www.theguardian.com  ➚   |   Posted by: Sarah Scire   |   January 19, 2021

The United States — specifically, the Office of the U.S. Trade Representative — has come out against the Australian government’s plan to make Google and Facebook pay news publishers for the use of their content on their platforms.

Australia, if you need a refresher, is attempting to force the tech giants to negotiate with publishers over payment for using their content in Google search results and Facebook’s News Feed. The closely watched proposal would allow news organizations to collectively negotiate terms and give an outside arbiter the authority to make a final decision, should the companies fail to come to an agreement on their own.

(Google, Facebook, and other tech companies have long argued that their use of news outlets’ material falls under fair use — or, as other countries call a similar concept, fair dealing. They also point out that news companies can choose to be removed from their platforms, but almost never do.)

The U.S. government took particular issue with the last bit about an outside arbiter, writing in a seven-page submission to the Australian Senate that “the heart of this legislative proposal replaces free market principles with a compulsory code that ultimately allows arbitrators to mandate remuneration.” The U.S. also voiced concern over the lack of a “credible, substantive methodology for assigning value” of the publisher-provided content.

The new legislation would also force Facebook and Google to give publishers two weeks advance notice of algorithmic changes that would affect their business. (Google makes thousands of changes to its search algorithm each year, with only limited information provided to online publishers.)

The tech companies have broadly opposed the Australian measures, which they fear could become a model for other countries. As it has done in other countries that have threatened or imposed regulation, Google’s been testing Australian-news-free versions of its search results in recent weeks.

The proposal is currently being considered by an Australian Senate committee and it’s the committee that posted from the U.S. government online. In the letter, the U.S. Trade Representative calls the legislation “extraordinary” and “fundamentally unbalanced,” warning that the laws “may result in harmful outcomes.”

The proposed approach, bypassing a more incremental approach to regulation, is based on a perceived urgency in the need to address the impact on the news business as advertisers direct their placement of advertising away from traditional media (print, broadcasting) to digital platforms. However, this type of direct intervention in the market to distribute advertising revenue is a significant step that needs to be carefully thought through and justified.

We respectfully request that Australia reconsider whether legislation is needed…Such a sweeping regulatory change seems premature without further study and input. Australia should again consider promoting a voluntary code of conduct supported by, as appropriate, targeted regulations developed in an open and transparent process, allowing participation by all relevant stakeholders.

You can read the full U.S. submission here. The Trump-to-Biden transition tomorrow will change the leadership in the Office of the U.S. Trade Representative — Biden has announced Katherine Tai as his nominee there — but the office has long been willing to advocate for American tech companies abroad, in both Democratic and Republican administrations.

While you’re looking at the U.S. filing, check out some of the other comments filed on the Australian plan. There are some from media companies (the Australian Broadcasting Corporation, Guardian Australia, the Australian Associated Press, Nine), from tech companies (Google, Facebook, Atlassian, Twitter), business groups (the U.S. Chamber of Commerce), and even web pioneers (Tim Berners-Lee, Vint Cerf).

Berners-Lee, the web’s creator, is not a fan:

As I understand it, the proposed code seeks to require selected digital platforms to have to negotiate and possibly pay to make links to news content from a particular group of news providers.

Requiring a charge for a link on the web blocks an important aspect of the value of web content. To my knowledge, there is no current example of legally requiring payments for links to other content. The ability to link freely — meaning without limitations regarding the content of the linked site and without monetary fees — is fundamental to how the web operates, how it has flourished till present, and how it will continue to grow in decades to come.

Like many others, I support the right of publishers and content creators to be properly rewarded for their work. This is without doubt an issue that needs addressing, both in Australia and around the world. However, I firmly believe that constraints on the use of hypertext links are not the correct way to achieve this goal. It would undermine the fundamental principle of the ability to link freely on the web, and is inconsistent with how the web has been able to operate over the past three decades. If this precedent were followed elsewhere it could make the web unworkable around the world. I therefore respectfully urge the committee to remove this mechanism from the code….would undermine the fundamental principle of the ability to link freely on the web, and is inconsistent with how the web has been able to operate over the past three decades. If this precedent were followed elsewhere it could make the web unworkable around the world. I therefore respectfully urge the committee to remove this mechanism from the code.

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