Google has responded to the implementation of a new EU Copyright Directive (EU) 2019/790 (“Directive”, available here) requiring news aggregators to make payments to publishers for the right to display snippets of a story, by taking down the snippets from the articles.

What is a news aggregator?

News aggregators allow users to view news and updates from different sources in one location. They fetch the data, organise it by category or tag and display it in a convenient order for easy reading and save the user from visiting multiple websites for their latest content. This includes links accompanied by snippets from various articles without paying for a licence to copy and publish those snippets.

Overview of the EU Copyright Directive

The EU implemented a Copyright Directive containing a “link tax” squarely aimed at Google and other search engines. This was supposedly to help publishers recoup their investments in press publications and to ensure the sustainability of the publishing industry.

This move was widely criticised both in principle and from a practical perspective. Previous link taxes had failed, for example in 2013, Google switched to an opt-in model for news aggregation for Germany, such that snippets would not be displayed by default. Publishers would have to opt-in (and agree that Google would not pay them anything) if they wanted Google to display any snippets. In 2014 Google closed Google News in Spain in response to a different type of link tax. The fundamental issue is that snippets of news lead to far more revenue for the news publishers than they do for Google, hence Google has less to lose by removing snippets.

The new right under Article 15(1) provides for rights analogous to copyright (e.g. preventing others from copying or publishing) “for the online use of their press publications by information society service providers”. These rights last 2 years from the next 1 January following the original publication (Article 15(4)). There are exceptions for private or non-commercial use of press publications by individuals, mere hyperlinking and “very short extracts”, the meaning of which will be clarified by the Court of Justice of the EU in due course..

This link tax was contained within the Directive, which requires implementation by each member state by 7 June 2021. The UK has not yet implemented the Directive and HM Government has indicated that it will be subject to the nature of the future relationship between the UK and the EU. France was the first member state to implement it. As expected, Google again switched to an opt-in model. Google also implemented “more fine-grained configuration” guidance (see here) to replace the previous binary options of snippets or no snippets. Google’s VP of News commented:

“To uphold that trust, search results must be determined by relevance—not by commercial partnerships.

That’s why we don’t accept payment from anyone to be included in search results. 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 relation to the economics of the situation:

“In the world of print, publishers pay newsstands to display their newspapers and magazines so readers can discover them. Google provides this benefit to publishers at no cost. This creates real value: In Europe alone, people click on the news content Google links to more than 8 billion times a month—that’s 3,000 clicks per second we drive to publishers’ own websites.”

Who does this EU Directive apply to?

If you provide a European news aggregation service, then this Directive will be directly relevant to you.. Publishers of press publications may also be affected.

What should my business be doing?

You should keep up to date with which countries have implemented the Directive and how this affects your content distribution.  If you are a news or content aggregator then you may want to consider changing the basis on which you provide snippets to opt-in and consider any specific standard licence terms.  If you are a content distributor such as a news publisher, you should review your licence terms for snippets and track compliance.

What happens next?

The French government was critical of Google’s approach. It’s possible that the Directive will be amended so that news or other content aggregators will be required to provide snippets, which will likely result in the closure of news aggregation services (as with Google News in Spain).

How can we help you?

We have advised publishers and digital creative agencies on all aspects of their businesses, including content distribution, publishing, licensing, contracts with customers and suppliers, disputes and data issues, and we’re well placed to advise clients on the different aspects of news aggregation.

How do you get in touch with us for more help on this?

For more information or advice, please contact Rebecca Steer