Could Australian Decision Giving Broadcasters the Right to Collectively Bargain with Tech Companies Be a Preview of Things to Come in the US?

David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

Last week, the Australian Competition & Consumer Commission approved an application for Commercial Radio Australia to collectively bargain with Google and Facebook over the carriage by these tech platforms of news content from Australian radio broadcasters (press release here, application and approval here).  This approval is an outgrowth of the adoption of the Australian News Media and Digital Platforms Bargaining Code, which authorized bargaining between traditional news media outlets and tech platforms and, if the bargaining is not successful, a mandatory arbitration process to set appropriate royalties to be paid by the tech companies for the use of the news provider’s content.  These actions could be a preview of what could happen in the United States at some point in the future if pending legislation known as The Journalism Competition and Preservation Act, which we wrote about here, is adopted.

There are, of course, differences between the Australian approach and what has been proposed thus far in the United States. The U.S. bill, while providing an antitrust exemption that would permit collective bargaining with tech companies by groups of traditional media companies, does not provide for any mandatory arbitration process for setting rates if no agreement is reached as to the rates and terms of content carriage by the tech companies.  Without providing any mandatory rate-setting process, if negotiations are not successful, the most significant bargaining chip in the U.S. would be for the local media companies to withhold consent to the use of their content by the tech platforms.  It is interesting to note that, in the application by the Australian broadcasters’ organization for a waiver from their competition (antitrust) laws to allow the collective bargaining, the broadcasters disavowed any boycott of the tech platforms, which presumably would be unnecessary with mandatory arbitration waiting if a voluntary agreement cannot be reached.  In the U.S., a threat to pull content off tech platforms could become more important, though perhaps more difficult to achieve because of antitrust laws (which may allow collective bargaining but may not permit collective boycotts) and other U.S. laws and policies.

As we wrote here, the Copyright Office is now reviewing some of those policies to determine if copyright law or other legal precedent in the United States should be changed so as to give local publishers more say in the use of their content by online media, including news aggregators.  That Copyright Office proceeding, in which comments are due November 26 and a virtual roundtable to discuss the issues will be held on December 9, looks not only at legislative proposals like those adopted in Australia (and to some degrees in parts of Europe), but also at changing interpretations of U.S. laws on fair use and the “hot news doctrine” to give news creators more rights in the content they produce.  As we wrote in our article on the Copyright Office proceeding, these are nuanced issues with both positive and negative aspects for broadcasters and other traditional media companies.  Thus, this proceeding should be monitored carefully.

The negotiations in Australia, and similar developments in Europe and elsewhere across the globe, should also be monitored by U.S. media companies, because the results of these negotiations may be instructive as to how these issues play out in the U.S.  Will the negotiations be successful and contribute meaningful revenue to traditional media companies for the use of their content?  Or will their content exposure on tech platforms decrease because of new costs, real or potential, that such platforms would have to incur to make the content available?  If that is the result, does that contribute to traditional media becoming less relevant in today’s digitally-centered media marketplace?  The interplay of the competing desires for compensation and exposure may clash during any negotiations.  So watch carefully, as the outcome of this process is important for traditional media outlets struggling to compete in the current marketplace.

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