Digital Markets Act: MEPs pooh-pooh publisher’s call for Australia-style arbitration rights

MEPs show little enthusiasm for a suggestion by publisher’s lobbyists to introduce arbitration rights for copyright claims into the Digital Markets Act. This was suggested by the European Publishers Council in February. The topic was first broached by a lobbyist for German publishing powerhouse Axel Springer at a virtual meeting with a senior staff member of the Commission president, newly revealed documents show.

The renewed push by publishers for copyright rules in Europe tailgates a high-profile spat between tech giants and the Australian government. The Australian media bargaining code passed in February requires Google and Facebook to pay publishers for the right to link to their content and forces the tech companies into an arbitration procedure if they refuse.

In an attempt to forestall its passage, Facebook blocked Australian media content for a few days. But the company changed tack after the Australian government offered changes to the law.

The EU already introduced a provision for tech companies to pay news publishers for snippets of their content in the 2019 Copyright Directive. However, the Australian example has given rise to the idea to include additional arbitration rights into a new EU legislation package meant to curb the power of online gatekeepers, the Digital Services Act and Digital Markets Act.

„It has become clear that without the full force of an Australian style approach, gatekeeper tech companies threaten to walk away from negotiations or exit markets entirely“, Angela Mills Wade, executive director of the European Publishers Council, said according to Bloomberg. Her call was echoed by News Media Europe, a rival association. An influential voice in the European Parliament, Maltese lawmaker Alex Saliba of the center-left S&D group, told the FT he welcomed the Australian approach.

The publishing industry had already sounded out leading EU figures earlier, recently revealed documents show. An unnamed lobbyist for Axel Springer met Ursula von der Leyen’s chief digital adviser Anthony Whelan in a video call in late January.

In the call, the German publisher said the Digital Markets Act was off to a „positive start“, but the EU needed to „also consider negotiation rights for publisher’s neighbouring rights“. The document does not mention how the Commission reacted. Axel Springer, who co-owns the influential Brussels bubble news website Politico.eu, likely lobbied the Commission on the issue even earlier in a video meeting with staff of the EU’s digital czar Thierry Breton, but the Commission has refused to disclose minutes of the meeting.

The Copyright Directive passed in April 2019, but most EU countries have not yet transposed it into national law ahead of the deadline in June. The notable exception is France, where the introduction of the new copyright law was followed by a million-euro deal between Google and a few leading publishers.

Asked about the meetings with Axel Springer, a Commission spokesperson said that the Copyright Directive „already starts to bring concrete results for the European media sector, as proved by the agreements found between Google and publishers in France“. The Commission expects that „positive results will materialize in other Member States“, it later told an MEP in a written reply.

„We have no comment on the situation in Australia“, the spokesperson added.

„Not a good idea to re-open the Copyright Directive“

While the Commission has so far not commented directly on the publisher’s suggestion, leading MEPs on the Digital Markets Act (DMA) in the parliament’s Internal Market Committee contacted by netzpolitik.org have made it clear there is little political appetite to include it into their proposals.

„I don’t think it’s a really good idea to try to re-open the Copyright Directive„, said Andrus Ansip, who helped to pass the law as  Commission vice-president in 2019. Now a lawmaker for the liberal Renew group, he says he is open to hearing new ideas. But Ansip appears cautious to revisit the fight over copyright. „If we add so many new issues to the Digital Markets Act, this will be a never-ending story.“

It was „illusionary“ to think that ancillary copyright could create a level playing field between press publishers, says Martin Schirdewan, co-head of the Left group and leading voice on the file. He thinks the way the Copyright Directive is set up favours incumbent publishers such as Axel Springer, while leaving their smaller competitors in the lurch. Instead of tinkering with copyright law, the Commission should propose a strong digital tax to help fund the press.

An arbitration mechanism is already part of the Copyright Directive, centre-left German MEP Evelyne Gebhardt says. To address the issue in the Digital Markets Act, she proposes to extend a fairness provision in Article 6 (k) of the draft law to all core platform services. This would mean that publishers and other business customers of tech companies could address issues such as unfair contracts and remuneration, Gebhardt says.

Czech MEP Marcel Kolaja from the Pirate Party, who represents the Green group on the file, says that „copying an Australian code-type arbitration system won’t be efficient either and it would rather be an inappropriate legislative intervention on the market.“

The key voice in the parliamentary debate is Andreas Schwab, a legislator for Germany’s centre-right and the Digital Markets Act’s rapporteur in the internal market committee. Asked about the proposal by the publishing industry, he says it was „too vague“ to discuss, but MEPs would consider proposals made by stakeholders in upcoming parliamentary hearings.

His personal preference, however, was for speedy adoption of the DMA, Schwab said. His remarks echo the sentiment expressed by other lawmakers on the file that introducing copyright provisions into the new law could make an agreement, already a tricky balancing act, an entirely different kind of challenge altogether.