Nearly all of my time in the law has been dealing with the law as it is. But recently, I had a chance to involve myself in the law as it might be. The context was the Fair Digital News Bargaining Bill, and my involvement was to make a submission on it to a select committee. It was an interesting experience to be involved at such a stage in the legislative process.
The background to the bill is this: the onset of the digital paradigm means there has been a shift in the way in which people consume news media, which can now be accessed via online digital platforms. This is a challenge for the mainstream media.
Simply put, large digital platforms act as content aggregators, gathering news information from a number of sources. An example is Google News, a news aggregator service that presents a continuous flow of links to articles organised from a large number of publications and magazines. The link that is provided allows the user to access the full article on the publisher’s website. Facebook provides a similar service, as do a number of other news aggregator platforms.
This has had an effect on mainstream media profitability and especially on the revenue derived from advertising. According to the News Publishers Association, newspaper advertising revenue here fell from $533 million to $210m from 2011-20. But digital advertising revenue tripled, to $1.06 billion.
Since 2003, New Zealand newspapers have generated $1 in digital advertising for every $4 they have lost in print advertising. This has resulted in cutbacks in staffing and all areas of news content.
The Public Interest Journalism Fund helped stem the revenue flow but that was perceived by many as a means by which the state influenced news content and it has now come to an end. In its place would come a revenue stream from platform operators.
The bill proposes a means by which “fair revenue sharing” would take place. The Broadcasting Standards Authority would act as an independent regulator and would have a range of “stick and carrot” approaches to compel the co-operation of aggregators. Operators would be “incentivised” by the threat of coercive action if there were non-compliance or hesitancy in complying.
This is not incentivisation. It is “velvet glove” compulsion. The iron fist comes later. If “fair bargaining” does not produce a satisfactory result, the state steps in and imposes agreements on operators.
Non-compliance would result in civil penalties.
This bill contains a contradiction in its title. How can fair bargaining take place when it is compelled? More importantly, the bill is completely unnecessary.
Operators are “freeriding” on the content developed by others. This content is developed by the “sweat of the brow” of mainstream media and clearly is intellectual property protected by existing copyright law.
The bill does not even mention the fundamental legal rights provided to publishers by existing copyright law.
The way in which mainstream media can develop a revenue stream from its intellectual property is through a copyright licensing programme, which provides for collective licensing societies to whom copyright owners assign selected rights to their works and who then, on behalf of the owners, grant licences to potential users of the rights. If there is some doubt about the applicability of the licensing scheme to internet content, a simple amendment to the Copyright Act 1994 could cure the problem.
There is no need for the clumsy and unnecessary processes proposed by the Fair Digital News Bargaining Bill when a solution is available with the law as it is.
David Harvey is a retired district court judge.
