Can a change in IT rules bridge the gap for fair revenue sharing between big tech and publishers?
The amendment proposed amendment would prohibit platforms from banning sites of providers that participate in collective negotiations or arbitration.
Towards the end of November, the Canadian government announced a pathbreaking agreement with Google. The American multinational technology company committed to paying C$100 million annually to support the country's news industry, in adherence to a new Canadian law mandating tech companies to compensate publishers for their content. In contrast, India is currently lacks a definitive law or policy facilitating a fair revenue share from major tech corporations.
While Apurva Chandra, secretary, ministry of information and broadcasting, said that the government can either wait for the Competition Commission of India's (CCI) regulation or independently draft an act, experts contend that a straightforward amendment to existing rules could take care of the issue.
“Waiting for the Competition Commission will take years. If you take a look at the existing IT rules, there's already a defined distinction between a publisher and an intermediary. The regulations encompass the establishment of a watchdog committee, provisions for arbitration and court proceedings, and mandatory data submission to the government when requested. What can be done immediately is incorporating a definition of a bargaining code. The Competition Commission can then determine the formula for negotiations, ensuring a fair deal,” said development economist Aruna Sharma, who is also a retired government secretary who worked with the ministries of electronics and IT, and steel.
One of key objectives behind requesting an amendment to the existing rules is to prohibit platforms from retaliating against providers for participating in collective negotiations authorised or arbitration by blocking their sites.
Blocking is not a new element in this situation. In markets like Australia, Facebook threatened to block news content and also went ahead with the implementation of the News Media and Digital Platforms Mandatory Bargaining Code. However, with amendments in place later, the law was made flexible, prompting Facebook and Google to negotiate deals with multiple news organisations in the country.
Digital news publishers in India are hopeful that such models can be implemented in the country.
The CCI has been drawn into the fray. Not just the Digital News Publishers Association (DNPA) but the News Broadcasters and Digital Association (NBDA) and the Indian Newspaper Society (INS) jointly lodged a complaint with the CCI earlier this year. Their grievance pertains to Google's perceived conditions related to revenue-sharing agreements and questionable practices in advertisement intermediation services, among others.
Competition law expert and partner at Luthra & Luthra Law Office Gurdev Bhatia said that exploring the path of Australia's revised media law, introduced by the Australian Competition and Consumer Commission as the News Media and Digital Platforms Mandatory Bargaining Code, presents a viable option for India.
“This code establishes a check and balance mechanism for determining the final price news aggregator platforms must pay to Australian news publishers for utilising their content to generate revenue. Under this code, platforms and news publishers are granted a two-month period for negotiations and deal-making. If unsuccessful, arbitration becomes the last resort,” he said.
Canada, through its Online News Act, has adopted a similar strategy, promoting equitable revenue sharing between digital platforms and news outlets. Both laws also allow for collective bargaining by news outlets. Insights from the French competition regulator emphasise that aggregators can face consequences if negotiations lack 'good faith'.
According to Bhatia, recent indications from the government suggest a potential modification of the Information Technology Act, 2000.
Sujata Gupta, secretary general at DNPA, said they are also advocating for a timely amendment to existing IT rules in India, incorporating a bargaining code to ensure fair revenue sharing between major tech corporations and digital news publishers.
“Drawing inspiration from international models like Canada's Online News Act and Australia's News Media and Digital Platforms Mandatory Bargaining Code, such regulatory modifications can establish a framework for negotiations and safeguard the interests of the Indian media industry,” she said,
