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 US 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 US 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 US, 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 US laws and policies.
Continue Reading Could Australian Decision Giving Broadcasters the Right to Collectively Bargain with Tech Companies Be a Preview of Things to Come in the US?

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Federal Trade Commission issued a press release which warns advertisers to avoid misleading endorsements. The FTC also sent a

The Copyright Office, at the request of Congress, has initiated a study to examine the rights and protections of news publishers under copyright and related laws.  The Office issued a Notice of Inquiry seeking public comment on a variety of issues that could extend new protections to “press publishers” and perhaps other content creators that go beyond those accorded by traditional principles of copyright law.  The Office terms these protections “ancillary copyright protections.”  The Notice of Inquiry tees up several specific proposals for consideration, asks many specific questions, and solicits additional ideas that should be considered to protect publishers.  Comments are due November 26, 2021.  The Copyright Office will also hold a virtual public roundtable on December 9 to consider these issues.  This study could have an impact both on traditional media outlets who produce content, and on digital media that shares those comments.

The impact of digital media on traditional publishers of content – especially news content – was the trigger for this review.  The Notice begins with a recitation of the financial impact that the growth of the internet has had on newspapers and other publishers (“publication” under the Copyright Act is the distribution of a copy or recording of a work to the public by sale, rental, lease, or lending.  While a pure public performance does not constitute publication, digital subscription services and similar on-demand uses of content would likely fit within this definition).  In its opening paragraphs, the Notice focuses on digital “news aggregators” and their impact on publishers.  The Notice takes a broad view of the term aggregator – talking not just of headline clipping sites devoted to specific topics, but also to broader digital media sites like Facebook and Google that feature content from a variety of other sources.  While recognizing that aggregators can drive traffic to publisher’s digital content, the Copyright Office seeks comment on whether these aggregators also harm publishers by sending traffic only to specific articles and not to an index or home page for a publisher where a viewer might be inclined to view more content (and perhaps more of the publisher’s own ads).  From that opening discussion of news aggregators, the Notice looks at possible “ancillary” rights that may assist publishers in overcoming any negative impact of aggregators. These are discussed below.
Continue Reading Copyright Office Initiates Study of “Ancillary Copyright Protections” Accorded to Publishers – Reviewing News Aggregation and Digital Media’s Use of News Content from Traditional Sources

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Copyright Office initiated a study of the rights of publishers, to explore ways to assist local journalism. The notice