Re: Right to Link vs proposed Australian “link fee” legislation

Hey Danny,

> On 19 Jan 2021, at 4:35 am, Daniel Weitzner <weitzner@mit.edu> wrote:
> 
> Hi Tim and company -- Thanks for getting us all together on this thread!
> 
> I had not been following this so poked around the various government proposals and just a few of the numerous comments from trade groups, companies and others that have piled up here. It's clearly been hotly debated by those involved. A couple of observations:
> The proposed draft legislation <https://www.accc.gov.au/system/files/Exposure%20Draft%20Bill%20-%20TREASURY%20LAWS%20AMENDENT%20%28NEWS%20MEDIA%20AND%20DIGITAL%20PLATFORMS%20MANDATORY%20BARGAINING%20CODE%29%20BILL%202020.pdf> seems to spend a lot of time the rules are all framed in terms of competition and market power, and specifically **avoid** copyright questions. They set up a pretty complex bargaining and compulsory arbitration process that would for new sources and digital platforms to agree on both the price for 'making available' (ie linking to) content AND the ranking/personalization algorithms that platforms use to present news content on digital platforms.
Yes. I suspect that it was sent to the ACCC specifically to avoid revamping the copyright regime,[1] and because there was concern about the French approach. From the concepts paper:

"""
The ACCC notes that this framework is not intended to replicate copyright-based policy approaches pursued in overseas jurisdictions to address the bargaining power imbalance between digital platforms and news media businesses. The Australian Government has asked the ACCC to develop a mandatory bargaining code, which would not involve changes to Australian copyright law. Instead, we are seeking stakeholders’ views on whether it would be appropriate for the bargaining code to include a bargaining framework based on negotiations to determine fixed fees, which may be partly influenced by the operation of licence arrangements based on copyright law.
"""[2]

There was engagement from the AU copyright community in the consultative phases, FWIW.
> For Internet policy history buffs, the Internet censorship provisions struck down by the US Supreme Court in 1997 had the same 'making available' language. It was found to be particularly hostile to online free expression because web sites have no way of controlling who follows a link. Holding the site responsible for 'making available' a link was seen by the US Supreme Court as forcing a site to limit its speech in constitutionally unacceptable ways.
Sure, but freedom of expression is a great example of true American exceptionalism. Australia takes a more balanced (in the European sense) approach -- e.g., see the Tobacco Advertising Prohibition Amendment Regulation 2012 (Cth).

It is interesting that the statement of compatibility with human rights[3] doesn't even mention it, though.
> The rules, whatever they are, appear to apply only to Google and Facebook, at least according to several commenters (though I couldn't verify that in my quick survey of the extensive proposals. There is the possibility of adding new covered companies later.
That's the stated intent (the relevant minister has said so publicly a few times, IIRC). 
> Singling out particular companies, especially when none are from Australia, is likely a violation of free trade obligations.
The US Chamber of Commerce forcefully makes that point in its response to the exposure draft.[4] I'm not at all familiar with trade law, but I do wonder whether the treaty applies to how Australia regulates the Australian subsidiaries of US companies regarding Australian consumers that access services located within Australia.
> this has the politics of SOPA/PIPA: platforms versus content -- the Murdock orgs (News Corp, etc) are very involved.
A lot of people are saying that. Personally, I think that this law *might* start to address the imbalance seen in the Australian media landscape, by providing another source of revenue to smaller outlets (although it remains to be seen whether it will be anywhere near enough). Notably, the code allows collective bargaining by news businesses.
> Notably, none of the digital rights NGOs normally present is such debates in Australia or around the world seem to have commented at all. That's a bit surprising to me. 
Digital Rights Watch[5] and EFA[6] both made submissions, but didn't make much (any?) public fuss about it, as far as I saw, and the contents of both are pretty predictable. Unfortunately digital rights NGOs in AU aren't very well organised or supported.

 I do really like the Law Council's submission, which points out that '[o]verall, the Draft Code appears to be a special interest response rather than a means of improving the industry for consumers or for participants generally.'[7]

> This whole thing looks politically very complex to me. The best way I can see having any impact is to have groups like EFF, CDT, Access Now, Web Foundation etc with political depth to get involved. I do think that a statement from the TAG could be helpful but would have most impact if coordinated based on knowledge of the current political process. 

Perhaps, but if the high order bit is 'tech community defends big platforms,' I'd be pretty disappointed. 

Internet Australia (the local ISOC chapter) has done a decent job of coordinating responses to the encryption laws in the past; I can connect folks if there's interest. That said, the current Government is pretty obstinate about its legislative agenda (as has been seen in those efforts), so any response may fall on deaf ears. 

Cheers,


1. Although they've since announced a copyright reform; see <https://www.paulfletcher.com.au/media-releases/media-release-copyright-reforms-to-better-support-the-digital-environment>.
2. <https://www.accc.gov.au/focus-areas/digital-platforms/news-media-bargaining-code/concepts-paper>
3. <https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6652_ems_2fe103c0-0f60-480b-b878-1c8e96cf51d2/upload_pdf/JC000725.pdf;fileType=application%2Fpdf> 59.
4. <https://www.accc.gov.au/system/files/US%20Chamber%20of%20Commerce.pdf>.
5. <https://www.accc.gov.au/system/files/Digital%20Rights%20Watch.pdf>.
6. <https://www.accc.gov.au/system/files/Electronic%20Frontiers%20Australia.pdf>.
7. <https://www.accc.gov.au/system/files/Law%20Council%20of%20Australia_1.pdf>.

--
Mark Nottingham   https://www.mnot.net/

Received on Tuesday, 19 January 2021 00:59:14 UTC