AIPPI 2022: Changes to news aggregator rules concern counsel

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Cookies Settings

AIPPI 2022: Changes to news aggregator rules concern counsel

AIPPIPressPubFINALCOVER.jpg
Erin Simon of Google, speaking in San Francisco

Attempts to make aggregators pay news publishers could cause legal grey areas, said counsel from Google and other firms

Attempts to require news aggregators to compensate publishers could create legal uncertainties, said speakers at AIPPI’s World Congress on Tuesday, September 13, in San Francisco.

Panellists from Google and three other firms delved into legislation from the EU, Australia and the US that would require tech platforms to seek permission or offer compensation when aggregating news.

Article 15 of the EU’s Directive on Copyright in the Digital Single Market created a new right that allowed press publishers to demand fees when aggregators displayed excerpts of their content.

Hans Eriksson, partner at Westerberg & Partners in Sweden, said there were a few grey areas in this legislation.

“This raises many, many questions that will have to be hashed out in litigation,” he said.

The law stated that authors of works should receive appropriate shares of revenues. There could be battles over that provision in the future, said Eriksson.

The legislation specified that very short excerpts were exempted from this new right.

But Eriksson noted that it was unclear what constituted a very short excerpt and how this exception would apply to videos or photos.

The legislation didn’t provide enough detail on what constituted a press publication either, said Eriksson. Traditional newspapers would likely meet the definition set out but personal blogs probably wouldn't.

Australian attempts

The Australian government determined that copyright wasn’t a suitable vehicle for its attempts to balance the interests of news providers and digital platforms.

The government decided this way for a few reasons, explained Matthew Swinn, partner at King & Wood Mallesons in Australia.

The main reason given was the Australian courts had held that newspaper headlines didn’t merit copyright protection.

Swinn explained that the country addressed the balance-of-interests issue instead through the Australian Competition and Consumer Commission’s Digital Platforms Inquiry in 2019. The government determined that there was an imbalance in marketing power between news companies and digital platforms, including Google and Meta.

The government then passed the News Media and Digital Platforms Mandatory Bargaining Code in 2021 to allow news organisations to negotiate with platforms over payments.

Before the bill passed, Facebook (now Meta) pulled all news from its platform in Australia for a few days. The tech company eventually came to an agreement with the government and relented.

Google and Meta have since reached agreements estimated to be worth A$200 million ($134.5 million) with news businesses, said Swinn.

But Swinn added that there was a real risk that platforms would simply switch news off if they felt like they'd been backed into a corner.

Google gripes

The US had considered similar legislation, according to Erin Simon, product counsel for knowledge at Google in San Francisco.

The Journalism Competition and Preservation Act, introduced in 2021, would allow US news businesses to negotiate with platforms over the access conditions for their content. It would also require platforms to negotiate and bargain in good faith.

Simon argued that there were a lot of problems with this legislation, however.

She said platforms that only offered one proposal and refused to deviate from it wouldn’t be considered to have negotiated in good faith. She added that websites might want to argue that they didn't owe news sites any money because their content use was fair.

She pointed out that news companies had the right to remove their content from platforms as a negotiating tactic but websites couldn’t refuse to carry news content.

The proposal was also frustrating because platforms such as Google already used very little content from news stories, and the use drove traffic to these websites, Simon added.

Thomas Widmer, counsel at Lalive in Geneva, also spoke on the panel.

AIPPI took place this week at the Marriott Marquis in San Francisco.

more from across site and SHARED ros bottom lb

More from across our site

The firm is shaping its AI strategy around partnerships with Harvey and Legora alongside internally developed tools from its legal technology company, ELTEMATE
A dispute Down Under shows why trademark lawyers cannot afford to wait on the sidelines when a rival brand gathers momentum
The Third Circuit’s decision in Thomson Reuters v ROSS marks the first appellate-level decision addressing AI and fair use, prompting copyright counsel to consider arguments around potential licensing markets
Injunctions for HandsFree Labs and Align Technology come as the Court of Appeal warns that busy teams must have the staffing and resources to meet UPC deadlines
The chief technology officer remit, which has been created as the firm is building its litigation team, will include expanding the use of AI in patent and legal work and automating manual processes
Former Hoyng Rokh Moneiger partner Laura Alonso, who brought her team to ECIJA in March, discusses plans to expand further and why ECIJA’s ‘IP DNA’ is helping broaden her work
Amita Haylock discusses building an integrated Asia practice as clients increasingly demand that firms combine IP, technology and data expertise
François Pochart, Grégoire Desrousseaux and Lionel Martin, long-standing figures in the firm’s patent litigation team, are set to help launch a Paris-based litigation offering
The Unitary Patent has passed 100,000 registrations, but new data raises the question of whether 30% uptake is a ceiling or a staging post for further growth, say Michael Nielsen and Darren Smyth of EIP and Andrew Samm at Patently
The new generation of in-house IP leaders want commercial judgment, accessibility and flexibility, with AI raising expectations around both fees and delivery
Gift this article