Opinion: Like Frankenstein’s monster, the Fair Digital News Bargaining Bill has been revived. After a denial of support by National when it was on the opposition benches, the bill was grudgingly referred to a select committee by the coalition.
In May, the select committee, much to the surprise and doubtless chagrin of then-new Broadcasting Minister Paul Goldsmith, recommended that the government not proceed with the bill, but – in an interesting example of having a dollar each way – encouraged the government to consider some amendments. These included charging social media if New Zealand material was used to generate content using artificial intelligence.
When Goldsmith announced on July 2 that the government intended to proceed with the bill with some amendments, the proposals to deal with AI were not included. The minister said more work needed to be done before “we attempt to legislate there” – perhaps a polite way of consigning AI regulation to the too-hard basket.
The bill is designed to help local media companies earn revenue for the news they produce. This will be done by bringing the big platforms – which will be nominated by the minister – to the negotiating table to force them to pay for the news content they source from our media companies.
Goldsmith suggested the government would not decide who was funded – which was indirectly the case with the conditions attached to the Public Interest Journalism Fund. “What we are trying to achieve here is [encouraging] conversations to happen,” he said.
However, a reading of the bill would suggest that if the platforms are not “encouraged” they will be compelled to accept a solution that will be backed by sanctions for lack of co-operation or compliance. Not a lot of bargaining there. Nor could it be considered fair.
Peter Thompson, chair of the Better Public Media Trust, says there is no guarantee that the money paid would be applied to the type of media content that the country needs. He was critical of the proposal that the minister would decide which tech companies would pay. I have no doubt there would be some interesting behind-the-scenes discussions about that.
Of course, Meta and Google could decide to walk away from news aggregation – as they have done overseas – rendering the whole process a waste of time.
Blogger David Farrar claimed the decision was unprincipled and stupid. “It is unprincipled because it is forcing successful companies in one industry (social networks and search engines) to fund failing companies in another industry (media). The only rationale for this is that Google and Meta have money and Stuff doesn’t. Will we see Netflix levied money to fund home video rental stores? Will we see Foodstuffs levied money to fund Whitcoulls?”
NZ Herald media commentator Shayne Currie suggested these critics (and I should include myself in that category, having expressed my view in the Listener in March) miss a key point. He points out that Google and Meta rely on news content to help drive the businesses, advertising revenue and business models. In other words, they are “free riding” on content and so they should pay.
Currie added: “Nothing comes for free – NZME has to pay fees, for instance, to play music on its radio stations.”
Quite correct. And the mechanism for payment is not a music equivalent of the Fair Digital News Bargaining Bill. It lies in the Copyright Act. Copyright law is the place for resolving disputes about free riding on other people’s content.
If there are to be amendments to the Fair Digital News Bargaining Bill, those amendments should target and update the Copyright Act. That is the logical home for the remedies sought rather than in a bill that is neither fair nor providing a “bargaining” mechanism.
David Harvey is a retired district court judge.
