Platforms responses promise delay and could impact 'copyright'

Politics and procrastination look set to follow the Australian government's belated response to the probe into digital platforms of its competition regulator (writes Peter Coleman).

A joint announcement of the response by prime minister Scott Morrison and treasurer Josh Frydenberg last week has been followed by the reactions of interested parties and the release of submissions made to the government by media companies.

After the ACCC spent 18 months on its report and the government another six mulling it over, the Googles and Facebooks of this world have been given most of another year to work on a voluntary code of conduct to oversee commercial arrangements. Since we all think we know where that is likely to end, it seems a further waste of time.

A less than world-leading response to what had been hailed as a world-leading report. And the government has been highly selective in its response: Six of the 23 recommendations in the report are fully supported and a further ten "in principle". Five were "noted" and two others rejected.

The government has committed the relatively precise amount of A$26.9 million (over four years) to fund a new ACCC unit to monitor and report on the state of competition and consumer protection in digital platform markets, starting with further inquiries into the advertising technology sector.

This is in line with an ACCC recommendation, and an area in which Mumbrella founder Tim Burrowes last weekend suggested the regulator could use the services of a "poacher turned gamekeeper" to find out "where the bodies are buried", hopefully leading to prosecutions.

Beyond that, the idea is that a voluntary code developed between the platforms and the media owners would address the imbalance of power between them - with the option of mandating one if it's not agreed by November. This includes what is still loosely called "television" where FTA broadcasters' catch-up services compete with streaming services such as Netflix.

Missing from the government's response is support for a mandatory ACMA take-down code, helpful in copyright enforcement on digital platforms, but knocked back because of feared "unintended effects".

Which brings us to publishers' submissions to the government, released after its response on Thursday. Among them News Corp Australia - which publishes The Australian - argued that unless "all major publishers" signed up to the code of conduct, digital platforms should be banned from using any news publisher's content or data.

This Big Boys' club "would include - but not be limited to - News Corp, Nine Entertainment, Seven West Media, The Guardian, the ABC and SBS", it says. Note that common pet hate, Daily Mail Australia, and new player Antony Catalano's Australian Community Media are missing from the list though perhaps, they could join.

This goes to the worrying redefinition of the word 'copyright' in News' assertion that prohibition of the use of content by digital publishers should extend to "using content which is a rewritten version of any news publisher's original content" and override "fair dealing" exemptions in the current Copyright Act.

So since when did facts become copyright? You can see where News is coming from, seeking to protect a story its reporters had uncovered, but facts are facts, and it's "the way you tell them" - the arrangement of words - that the world understands as copyright.

News' proposals - which also include a requirement that publishers are told in advance of any algorithm changes affecting them - also stand in the way of the free market it otherwise tends to espouse, at least for other people. Unless digital platforms had to draw up agreements with all "major publishers", they would be able to "continue to be able to play news publishers off against each other and use negotiations with other news publishers as a negotiating tactic in order to force publishers into 'take it or leave it'," it says.

Yes, point made, but at what cost?

Possibly much more important are factors such as forcing the digital platforms to pay taxes on the profits they are really making in a country (before "management fees" are deducted) although such a net would also catch many more big fish than just the digital platforms.

And not taking "too hard" for an answer when platforms are asked to act on fake and defamatory reports which they are responsible for publishing, ie the same standards with which other Australian publishers are required to conform.

Pictured: An 1841 entry in an English register held by the Worshipful Company of Stationers in London

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