Denmark passes legislation paving way for bargaining between media and Big Tech

By L. Carol Christopher

INMA

Pleasant Hill, California, USA

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On July 2, representatives of 36 Danish media companies gathered for their first general assembly as a collective bargaining organisation listed in public records.

“The Danish initiative, based on the EU copyright directive (approved in March 2019) that gives news publishers the right to claim income from the online use of their material, is the first in Europe to form a broad-based collective to present claims before technology companies,” Financial Times reported. It is “a new contractual tactic to collectively negotiate an agreement with Google and Facebook that provides for the payment of copyrights for articles produced by their own newspapers,” Italy 24 News reported.

“The experiment, which reflects the approach taken to licensing in the music industry, potentially has much broader significance to the news business as EU member states begin to interpret and apply the provisions of the copyright directive,” Financial Times reported.

The new group is called the Danish Presspublishers Collective Management Organisation (DPCMO). Anders Krab-Johansen, an INMA member and CEO/publisher at Berlingske Media, told INMA the founders include private media companies, public service TV-stations, regional media companies, and small/upstart digital media.

Among them were state broadcaster DR and its main private rival TV2, the major newspaper groups of Berlingske and JP Politikens Hus, as well as Internet start-up Zetland, reported Financial Times. The only major Danish media group missing was magazine publisher Egmont, a sign of how difficult it is to reconcile the divergent interests of media companies, it reported.

“We believe that a collective management of our rights will make for the best and most fair value regarding big tech’s use of our content,” Stig Orskov, chief executive or media company JP/Politikens Hus (and INMA member), told Reuters. 

The power of combining legislation and collective bargaining

“What you see in most countries is that Google or Facebook negotiate particular deals with one or a few dominant media companies and they set the standard and the market has to follow. We would rather have a collective bargaining power, which gives us some size,” said Krab-Johansen in the Financial Times.

This week Google was fined €500 million for failing to negotiate with French news publishers.
This week Google was fined €500 million for failing to negotiate with French news publishers.

In a major story reported Tuesday morning by virtually every major news publisher in the world, the powerful combination of legislation and collective bargaining paid off well for French news publishers when French regulators found Google failed to negotiate with them in good faith to display snippets of articles on its Google News Service. The tech giant’s fine for that failure is a €500 million, or US$592 million — the second-biggest anti-trust penalty in France for a single company, Bloomberg reported. The penalty may be appealed.

Isabelle de Silva, president of the French agency Autorité de la Concurrence, had this to say: “The sanction of 500 million euros takes into account the exceptional seriousness of the breaches observed,” adding that regulators have dismissed previous remuneration offers as “negligible.”

As part of the decision, Google, which said it is “disappointed,” must render new proposals for compensation news agencies and other publishers or pay additional fines of up to €900,000 per day, Reuters reported.

Meanwhile, according to Financial Times, “Google said it would ‘respect the way that Danish publishers choose to negotiate,’ adding that it had “’already offered to start discussions with them, with the goal of reaching fair and reasonable agreements in line with the law.’”

“Facebook … has sought to minimise its liability by stripping back the content posted when users share hyperlinks. In countries applying the EU copyright law, publishers’ permission is required for anything more than the basic link to appear on the platform. the Times reported.

But the Danish companies’ “great concern,” Krab-Johansen told the newspaper, is that the tech giants will “try to drag negotiations out for years.” But, he added, “we are in no rush. We need to get this right.”

How Denmark stands out from other solutions worldwide

Observers who compare international solutions to tech giant dominance noted two differences in the Danish legislation from what has come before:

  1. The Danish initiative is different because previous Google and Facebook funding has been “negotiated with publishers on an individual basis and tied to specific news products so that tech groups can avoid systematic copyright charges for the use of snippets of content on their platforms,” wrote the Financial Times.
  2. Italy 24 News described the French situation as being similar, “where Google signed a copyright protection agreement with the French General Information Press Alliance, a trade union representing 300 political and generalist newspapers and magazines.” In France, the negotiated framework concluded payment terms bilaterally, with deals shrouded in secrecy and dividing the media industry, said the Financial Times. “The agreement reached in France,” it wrote, “which came after the French Antitrust had ordered Google to pay newspaper publishers for publishing copyrighted content in April 2020, is however of a different type from what Danish publishers have in mind, despite having been signed collectively. In fact, it provides that payments are agreed by Google with each individual publisher and that they are based on the monthly online audience of the newspapers, their contribution to political and general information and the amount of content published.”

A deep dive on the Danish legislation

In a white paper published in June, the Danish Ministry of Culture outlined nine principles it argues will help create “a more responsible and just society with the tech giants, each emerging from a significant societal challenge.”

This white paper published last month by the Danish Ministry of Culture outlined its plan.
This white paper published last month by the Danish Ministry of Culture outlined its plan.

Minister of Culture Joy Mogenson said, “The tech giants have gained a dominant position in society, making news media and artists dependent on the platforms to reach the public. It’s a democratic problem if tech giants gain extreme power over public discourse. And it is a cultural policy problem because our cultural identity becomes dependent on a digital infrastructure that no one in Denmark has an influence on.”

The paper described a society where (quoted verbatim):

  1. The business models of the tech giants are subject to democratic frameworks.
  2. Children and young people can have a safe childhood in good balance between the digital world and the physical world.
  3. The tech giants support the democratic conversation — rather than undermine it through digital echo chambers and polarization.
  4. The tech giants are taking greater responsibility for the content on their platforms.
  5. Free, well-functioning media help to support democratic dialogue and where everyone receives a fair payment for their creative work.
  6. Workers’ rights are protected — also on digital platforms.
  7. The tech giants must contribute to the financing of the welfare state in line with all other companies.
  8. Competition is fair and transparent and where consumers can shop safely online.
  9. Democracy sets the framework for the tech giants — not the other way around.

The Danish Ministry of Culture described the copyright bill, passed by “a large majority” in the Danish Parliament, Folketing, and effective June 7, this way in a press release issued by Mogenson (Google Translate):

“Danish media now have the right to make collective agreements with tech giants, such as Facebook and Google, and demand payment for the use of news. The law also means that online sharing platforms, such as YouTube, must in future enter into agreements with the rights holders if they want to show music or videos.”

Under a new “contract licensing system,” according to the press release:

  • Rights holders receive a new publishing right so that they can decide for themselves who may use their content.
  • The media will have the opportunity to make collective agreements with, e.g., tech giants, so rights holders are guaranteed payment when their content is used by tech giants.
  • The agreement license does not entail coercion. Media that do not want to be part of the agreement can choose to stand outside.
  • Both parties can appeal to the Copyright Licensing Board.
  • The license agreement for the publishers must be evaluated by 2023 at the latest, so that is ensured that the scheme works as intended.”

Stay tuned here for updates on this global movement. INMA members may also subscribe to our Big Tech Platforms newsletter.

About L. Carol Christopher

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