French antitrust decision sets the stage for Google to pay for news content in Europe

The antitrust regulator has given Google three months to work out a deal with French publishers. No pricing or licensing framework has yet been determined. Google told Bloomberg that it would comply with the decision and that the parties have already entered into negotiations.

A significant turn. This decision marks a significant turn in a long-running battle between traditional media publishers, newspapers in particular, and Google over copyright fees and the right to display news content in search results (and in Google News). Over the years, European governments have sought different ways to get Google and other big (predominantly U.S.) internet companies to help subsidize traditional media publishers.

Google has historically argued it benefits publishers by sending traffic to their sites, while many publishers claim that Google benefits more than they do and deprives them of revenue that they might otherwise capture. The reality is not as black and white as the parties have respectively claimed.

The complaint that resulted in the decision, was filed last November by a consortium of French publishers. It was based on the controversial European Copyright Directive that passed the European Parliament last year and first rolled out in France but will be implemented by other EU members by 2021. Prior to its passage, Google initially lobbied against passage and later for changes in the language of the law.

Google’s attempt to avoid copyright fees. The final version of the Directive exempted links from copyright licensing requirements. It said that text links “accompanied by individual words” can be shared freely without an arranged licensing agreement. “[M]erely sharing hyperlinks to articles, together with ‘individual words’ to describe them, will be free of copyright constraints.”

After the Directive’s passage, Google sought to escape paying licensing fees by excluding publisher content (snippets and images) from search results unless publishers explicitly opted-in to a no-fee arrangement. Google created new markup, meta-tags and webmaster guidelines for this purpose and said in an FAQ for publishers at the time, “[W]e don’t accept payment from anyone to be included in organic search results and we don’t pay for the links or preview content included in search results. When you use the new markup tools, you consent to the use of that preview content without payment, either to or from Google.”

The French regulators’ decision directly overcomes Google’s opt-in maneuver.

It’s still possible that Google could entirely shutter News in Europe to avoid paying, but that doesn’t appear to be what will happen. Earlier today the company said, in an email, “Since the European Copyright law came into force in France last year, we have been engaging with publishers to increase our support and investment in news. We will comply with the FCA’s order while we review it and continue those negotiations.”

Why we care. There are other controversial provisions of the Copyright Directive, including imposing copyright liability on platforms for the infringements of their users, which could result in a kind of pre-emptive censorship. However, the immediate significance of the French antitrust regulator’s decision is that it paves the way for similar negotiations with publishers across Europe.

And while U.S. “fair use” laws preclude the type of strict copyright licensing rules now being implemented in Europe, it won’t be long before American news publishers (and politicians), responding to the European situation, are similarly calling for compensation to support U.S. news publishers.