By Nishant Kr. Srivastava
The Context: The recent news, widely reported by media houses in India, that an agreement has been reached by Google with French news publishers, to pay them for use of online content, is being celebrated as a major victory for the news content producers and publishers, especially the print media and the same being the recognition of their long standing demand. It further fuels a demand for similar enabling laws to be enacted by the Parliament of India which may compel these tech behemoths like Google and Facebook to enter similar revenue sharing agreements with the Indian contents producers and news houses.
In this context we may refer to the adoption of a pan European Copyright reform in March, 2019 which inter alia, includes a provision to extend the copyright to cover content such as the ledes of news stories which aggregators such as Google News scraps and displays.
Article 11 (which gives publishers and papers a way to make money when companies like Google link to their stories, allowing them to demand paid licenses) of the EU Copyright Law aims to extend the digital copyright to cover the ledes of news stories, which the aggregators like Google News scrapes and displays and the Article aims at benefitting financially those media houses producing the contents by allowing them to charge link aggregator platforms like Google for displaying its contents.
Taking the lead, France became the first of the European Union Member States to ratify the so called neighboring right for news into national law and the enabling French law for extended press publishers rights came into force in October 2019. Accordingly the French Competition Authority in April, 2020 had ordered Google to engage and negotiate with publishers of the news and contents with respect to their demand and claims for sharing of revenue by Google with them for displaying their contents which surfaces and are displayed via Google Search.
It is interesting to note that some other EU Member States, particularly Spain & Germany, had earlier enacted similar laws pertaining to the contentious issue of payment by Google for the use of news contents and snippets of the media houses, which however did not bear desired fruit with Google refusing to make payment. In fact when Spain tried to enforce the mandatory payment by Google to the content publishers, Google in retaliation went on to stop its Google News service in Spain.
Google had, all this while, continued to talk tough over paying for this type of content. In a blog post published in September 2019, which is accessible on the net, Google had claimed that, “We sell ads, not search results, and every ad on Google is clearly marked. That’s also why we don’t pay publishers when people click on their links in a search result.”
In order to avoid the mandate of law Google even tried to change how it displayed content in France by switching to showing URLs and headlines only. Google went out to edit out the text snippets which it displayed in most other countries and markets. Resultantly, taking note of this action of Google i.e. switching to showing URLs & headlines only as well as the act of editing out the text snippets which it displayed in most other countries and markets, the French Competition Authority was constrained to hold that Google’s withdrawal of snippets to deny payment is likely to constitute an abuse of a dominant market position by the Google, which the Authority concluded, had damaged the press sector seriously and immediately.
In this specific context, the French competition watchdog has held, noting that such an action on the part of Google hurts publishers and constitutes an abuse by Google of its market dominance. The Authority has equated Google’s action of withdrawing the infographics, videos, photographs and the longer display article extracts, , within its various services like Google Search, Discover and the Google News unless the publishers give Google a free authorization to use and display the same, as an unfair behavior.
Lately Australia too has supported such demands of its media houses, particularly the newspapers, and had framed an elaborate code for revenue sharing negotiations with big tech.
Indian media houses are also up in arms to have similar laws and requirements in the Indian context too. Lately the Times of India, in one of its editorial columns titled “Google Pays; Follow France, Australia on digital copyright”, dated 23.01.2021, has demanded similar law and mechanism where the search engines like Google are required by law to share their revenues with the Indian media houses on the basic premise that Google and Facebook, unlike the Indian new houses which give employment to lakhs of employees and professionals, do not spend money on journalism.
It must not be lost sight that as it stands on date, The Copyright Act, 1957 (in India) does not bar such actions of crawling, indexing and serving by these search engines and so their action, may not be legally termed to be falling in the domain of infringement of the copyrights of the publishers.
The Dichotomy of Views
To appreciate the entire controversy we need to understand certain issues i.e. how Google’s search engine works, whether it has helped non established, small, dispersed and obscure players also to be searched i.e. pros and cons of seamless and unhindered flow of information and news, and thereafter look for the what could be the possible way out to the impasse, if it arises in the Indian context in the near future.
To the question as to how does Google search engine work, as per Google itself:-
“Inclusion in Google’s search results is free and easy; you don’t even need to submit your site to Google.
Google is a fully-automated search engine that uses software known as “web crawlers” that explore the web on a regular basis to find sites to add to our index. In fact, the vast majority of sites listed in our results aren’t manually submitted for inclusion, but are found and added automatically when our web crawlers crawl the web.”
Google maintains that its search works in essentially three stages:
“Crawling: Google searches the web with automated programs called crawlers, looking for pages that are new or updated. Google stores those page addresses (or page URLs) in a big list to look at later. We find pages by many different methods, but the main method is following links from pages that we already know about.
Indexing: Google visits the pages that it has learned about by crawling, and tries to analyze what each page is about. Google analyzes the content, images, and video files in the page, trying to understand what the page is about. This information is stored in the Google index, a huge database that is stored on many, many (many!) computers.
Serving search results: When a user performs a Google search, Google tries to determine the highest quality results. The “best” results have many factors, including things such as the user’s location, language, device (desktop or phone), and previous queries. For example, searching for “bicycle repair shops” would show different answers to a user in Paris than it would to a user in Hong Kong. Google doesn’t accept payment to rank pages higher, and ranking is done algorithmically.”
So essentially the Google Search engine crawls, indexes and serves the results/ contents available on the internet.
Now, when a media house puts up a news on its website the Google search engine crawls, indexes and serves the “best result” which as per Google is based on many factors like user’s location, language, device (desktop or phone), and previous queries etc.
The Rival Views
It will be a big disservice and to belittle the huge and seminal role played by Google in increasing the reach of many entities/ non entities, operating for remote and distant geographic and spatial locations and enabling them to be connected with the person who is in search of a specific kind of news or information. In fact, we could have not known many of the writers, media houses and their content, had Google search engine not been there at the first place.
The issue also here to be analyzed and appreciated is, are not the original content creators, media houses and publishers benefitting from the search engines like Google? Since such content creators and publisher are, due to the help of the process of crawling, indexing and serving the best result by search engines, able to have an across the domestic and world market reach and penetration, which in turn directly and substantially helps these media houses to charge fees/ higher fees from the advertisers for displaying/ running their advertisement on their media platforms?
Whenever anybody, an individual or a media house, puts its contents on the Internet, it has got a choice and its absolute right to control its access by anyone, and this is how the paid or subscription based websites, newsletters and even the social media sites work. But when, that person or the media house does not exercise its absolute right to control access or to give access to only subscribers or to only those who agrees to the terms and condition of access (including paid contents), this clearly implies and means their content is for free access for all and use by anyone, including search engines like Google.
Now the question arises, is it right for the media houses and news content producers to assert, that too as a matter of right, and try to compel Google to make payment for the various automated process it performs i.e. crawling, indexing and serving the best results?
In this context, one must not lose sight of the fact that the search engines likes Google have made our lives what we live it today. Be it dissemination of information in the field of science, arts, religion, literature and entertainment or people learning from and interacting with one another sans any physical or spatial barriers. An entire generation and the whole human civilization can very easily be classified and christened into pre Google and post Google era civilization. One cannot imagine a world, a global village, had there been no giant like Google.
The best part of such search engines is that, the voiceless, the most repressed, the illiterate and the secluded have got an access to the world theatre and humanity as their audience, which also means the unorganised entities, single individuals have been empowered to create news and contents and to share the same with the world at large without there being any requirement for incorporating themselves into an organized body/entity and making huge investments in order to get their news and views noticed and heard.
This is in stark contrast with the way the organised news and other media organisations work. Emphatically and conclusively the benefits of free access and free dissemination of information, news and contents, far outweighs the very demand to have an all sweeping umbrella law to make the search engines to pay for their simple work of crawling, indexing and serving the best result.
However, one can safely argue that those media houses which do not want to share their contents may restrict free access of their contents to their subscribers or those who agree to the terms and conditions only, may very well put the search engines like Google to notice to not to crawl, index and serve any of the news or content created by them or being displayed on their websites or put on the internet by them.
In the final analysis, at a larger level, one will agree that the benefits of normal and non-biased working of the search engines like Google, outweighs the real or perceived financial losses alleged by the organised bodies/ media houses.
The Possible Ways Out
As per the rudimentary understanding of the entire issue, some possible solutions could be that the search engines like Google may give preference in search results for those entities which do not charge or claim sharing of revenue by Google for crawling, indexing and serving their data or contents i.e. to say search engines may give preference to non-charging entities in their searches over the charging entities.
The second could be the search engines may show headlines and URLs only and edit out the text snippets which they display in most other countries and markets (although such an attempt of Google earlier in France has not gone well with the French Authority and the French Regulator has termed such an action as likely to constitute an abuse of a dominant market position).
And the third could be an act of removal by the search engines like Google, the best results / highest quality result specific to such media houses and entities which (if not entirely blocking the process of crawling and indexing of the URLs of such media revenue demanding houses, since blocking could be termed as abuse of dominant position by such search engines) do not wish to share their contents or get the same crawled, index and served/ discovered on search engines like Google unless and until Google also is willing to share revenue with them.
(The author is the Founder & Managing Partner of Actus Legal Associates & Advocates, a full service law firm based in Delhi and can be contacted at [email protected])