Submission in response to the ACCC News media bargaining code Concepts paper

The ADA provides ideas on how the proposed mandatory News media bargaining code can avoid unintended impacts on copyright law and Australian's ability to share news online.

The Australian Competition and Consumer Commission (ACCC) has been directed by the government to develop a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and the major digital platforms, Google and Facebook. On 19 May 2020 the ACCC released a Concepts Paper, seeking feedback on options to meet the government’s call

Importantly, both the government and the ACCC have emphasised that the code will operate in the competition space, and should not impact Australian copyright law.

The ADA provided a submission on the Concepts paper agreeing that it is essential that the proposed mandatory code not have unintended impacts on Australian copyright law or the rights of Australians to share and make use of news under that law.

To avoid unintended impacts on copyright we urged the ACCC to to ensure that any code:

  • avoids language linked to copyright;
  • uses a narrow definition of news;
  • is limited to specific services;
  • does not involve a copyright collecting society;
  • avoids adopting undesirable elements of our existing copyright collective licensing schemes;
  • includes good faith negotiation requirements; and
  • separates any remuneration from assertions of copyright.

Our Submission

The Australian Digital Alliance (ADA) welcomes the opportunity to provide comment to the Australian Competition and Consumer Commission (ACCC) in relation to its Mandatory news media bargaining code concepts paper . The ADA is a non-profit coalition of public and private sector groups formed to provide an effective voice for a public interest perspective in copyright policy. It was founded following a meeting of interested parties in Canberra in July 1998, with its first patron being retired Chief Justice Sir Anthony Mason AC KBE QC. Its members include universities, schools, disability groups, libraries, archives, galleries, museums, research organisations, technology companies and individuals. The ADA unites those who seek copyright laws that both provide reasonable incentives for creators and support the wider public interest in the advancement of learning, innovation and culture. In this submission, the ADA does not intend to comment on issues of competition or revenue sharing between news publishers and digital platforms, or the best approach to support public interest journalism in Australia. Although we believe these are extremely important issues on which expert input should be sought, we believe that others are better placed than ourselves to provide that input. Instead, we limit our comments to the potential impacts of the ACCC’s proposals on copyright in Australia and on the rights of all Australians. We provide a number of general comments on these potential impacts, as well as responses to select questions posed by the ACCC, below.