A last-minute bid to include the remuneration conditions for publishers in the Digital Markets Act (DMA) was rejected during the last trilogue. However, the EU institutions have conflicting views on what the agreed text entails.
A proposal of the European Commission to include a new article for fair, reasonable and non-discriminatory (FRAND) conditions specific to the remuneration of online content was not included in the final DMA agreement.
Although the proposal was supported by the French Presidency, MEPs were put on high alert by EURACTIV’s revelation just before the negotiation round. The EU lawmakers complained that the proposal was being pushed at the last moment and said that it was too directly linked to the Copyright Directive.
The publishers have been calling for a general extension of FRAND to social media and search engines in line with the mandate of the European Parliament, as they see these measures as not only applying to remuneration but also, for instance, access to data.
According to the final text, the ‘gatekeepers’ designated under the DMA will have to publish how they apply the FRAND principles in practice with their general access conditions. The Commission would then consider the compliance of such conditions against the regulation, while an alternative dispute settlement mechanism would handle day-to-day complaints.
For the Commission, this system would avoid them being overflowed with claims. However, the dispute resolution mechanism is another key demand from publishers, who have been calling for binding arbitration if no agreement is reached between the rightsholders and platforms, as is currently the case in Australia.
“We were asking for FRAND terms because of what we see as evidence of unfair conduct,” said Iacob Gammeltoft, policy manager at News Media Europe. Publishers have been complaining that platforms like Google can pick and choose whom to make an agreement with for using editorial content under the Copyright Directive.
Asked whether this article would force the gatekeepers to the negotiating table, Gammeltoft stressed that “it depends on how it’s enforced, but it’s certainly one more argument that we have on our side.”
This interpretation is in line with what France’s state secretary for digital, Cedric O, told reporters during a press conference on Friday (25 March).
Asked by EURACTIV about these provisions, the French minister compared the access to platforms to the telecom market, where operators holding a monopoly need to open up to competitors with overlay tariffs.
“The idea is that you have to be able to regulate remuneration and access to infrastructure,” O said.
“Remuneration, obviously, is part of that because it’s part of how the businesses access the services.”
However, left-to-centre MEPs involved in the negotiation dispute that the agreed text relates to the payment of online content. “I was very surprised by this statement in the press conference, particularly after the discussion we had in the trilogue,” social-democrat MEP René Repasi told EURACTIV.
“It is absolutely absurd to claim that it has anything to do with paying for displaying content in search results,” echoed Marcel Kolaja, who represented the Greens/EFA group in the negotiations.
For Marco Scialdone, head of litigation at Euroconsumers, the publishers failed in their last-minute attempt to extend FRAND provisions to remuneration of digital content; hence they are now arguing that it was already included.
“We have already seen this happen with art. 15 of the copyright directive: a narrative was developed to transform an exclusive right into a right to compensation, shifting the whole debate to something that did not exist within the text,” Scialdone said.
For the critics, the FRAND terms in the DMA refer to the conditions for accessing certain services that the gatekeeper offers, not editorial content that the gatekeeper eventually buys from rightsholders.
“This is always what happens in the trilogues. Everybody tries to pretend that the text adopted means what they want it to mean,” Felix Reda, a former MEP, told EURACTIV. For Reda, the FRAND terms would be breached if, for instance, an article was delisted from search results.
“In the case of the neighbouring rights, it’s the other way around. The platform wants the publisher to be on the platform, and the publisher is refusing unless they pay a certain amount of remuneration,” Reda added.
However, at the same press conference, the European Commission’s Executive Vice President Margrethe Vestager said that the gatekeepers would have to explain in their general conditions of access how the FRAND principles apply “in terms of what you should pay, or what you should have.”