ABUSE OF DOMINANT POSITION AND NEIGHBOURING RIGHT

With reference to the Google Case

I. The EU Copyright Directive: Neighbouring Rights

This principle, similar to copyright, is designed to help newspaper and magazine

publishers, as well as news agencies to receive payment from the world’s internet giants
when their content is being reused online.

It was established by Article 15 of the EU Copyright Directive, adopted by the European

Parliament at the end of March 2019, with the terms and conditions of use and prices
still to be negotiated between press publishers and platforms.

Article 15 of the new Directive establishes a neighbouring right for press publishers,
allowing them to exploit the online use of their publications by "information society
service providers". This provision is especially tailored to allow press publishers to
charge news aggregation platforms, search engines and social media platforms for
displaying their content in their compilations.

II. Creation of Neighbouring Rights for the Benefit of Press Agencies and
Publishers
Law No. 2019-775 of 24th July, 2019

France became the first country in the EU to France is the first EU member state to
apply this reform and transposed the directive into national law on 24 July 2019. This
Law amends Intellectual Property Code of France (Law No 92-597 of 1 July 1992).

Some key rights conferred on the press include-

Rights Conferred on Press:

1. Authorization required- Art. L. 218-2.- The authorization of the press editor or

press agency is required before any reproduction or communication to the public
of its press publications in digital form by a communication service. These rights
are assignable (Art. L. 218-3.)

2. Fixation of Remuneration- Art. L. 218-4.- The remuneration due under

neighboring rights for the reproduction and communication to the public of
 press publications in digital form is based on the operating revenues or, to
default, assessed on a lump sum basis. The fixing of the amount of this
remuneration takes into account elements such as human, material and financial
investments made by publishers and press agencies, the contribution of press
publications to political and general information and the importance of the use of
press publications by online public communication services.

3. Duty to Provide Information- Art. L. 218-4.- Online public communication

services are required to provide press publishers and press agencies with all the
information relating to the use of press publications by their users as well as all
other information necessary for a transparent evaluation of the remuneration
mentioned in the first paragraph of this article and its distribution.

4. Fair share of Professionals and Journalists- Art. L. 218-5.- Professional or

journalists and other authors of works present in the press publications
mentioned in Art. L. 218-1 of the present code are entitled to an appropriate and
fair share of the remuneration provided in Art. L. 218-4 above. This share as well
as the methods of its distribution between the authors concerned are fixed under
conditions determined by a company agreement or, failing this, by any other
collective agreement.

III. Google’s Actions

Google unilaterally decided to no longer display press publishers' contents in its search
results unless the publishers authorize such display free of charge. If the publisher
refuses to do so, only a headline and a link to the content will appear instead of the
regular preview.

IV. Complaint against Google

In their complaint, the press publishers argued that Google’s terms of implementation
of the Act of 24 July 2019 creating the press publishers’ right constitute an abuse of a
dominant position, contrary to 102 of the TFEU, as well as an abuse of economic
dependence.

Google’s behaviour would indeed constitute a deviation from the purpose of the Act of
24 July 2019, with the aim of imposing unfair trading conditions on publishers, under
the threat of being de-indexed from Google’s services.
Alongside the main complaint (case on the merits), the plaintiffs requested interim
measures aimed at ordering Google to enter into good faith negotiations with them.

V. Interim order of the French Competition Authority (FCA)

In its decision of 9 April 2020, the FCA ruled on the request for interim measures and
held that, in view of Google's market share of around 90% and the high barriers to entry
and expansion in this market, Google is likely to have a dominant position on the
French market for general online research services. 

Moreover, the FCA considered that Google's practices, under a prima facie view, are
likely to be characterized as anticompetitive. By avoiding any form of negotiation and
remuneration for the display of content protected under neighbouring rights, it
considered (under the same prima facie standard) that Google has imposed unfair
trading conditions on publishers and news agencies.

The FCA held that Google's likely dominant position in the market was the reason why
Google was able to impose such conditions on the press publishers.

The Authority therefore ordered Google:

a. to negotiate in good faith with the publishers and news agencies who request it,
according to transparent and non-discriminatory criteria, it being specified that
these negotiations will retroactively cover the period since the entry into force of
Act no 2019‐775, i.e. 24 October 2019;
b. to conduct negotiations within three months from the request of a press
publisher or a news agency to open negotiations, and to give the information
mentioned in article L. 218-4 IPC to publishers and news agencies;
c. to provide the Authority with monthly reports on how it is complying with the
decision.

VI. Negotiations b/w Press and Google

On January 21 2021, Google announced that it will pay French publishers for news
content in a major digital copyright deal.
Google said it would negotiate individual licenses with members of the alliance that
cover related rights and open access to a new mobile service from the company called
News Showcase.

Newspapers would be remunerated based on contributions to political and general

information, daily volume of publications and monthly internet audience.

VII. HT’s Existing Arrangements with Google

HT and its entities have pre-existing arrangement with Google. However, there is a
good scope to negotiate with Google, relationship pursuant to related or neighbouring
rights, wherein HT must be remunerated for its links and content being used by Google
and allied services, like Google News.

The existing arrangements HT has with Google, are summarized in the table below.
Sr HT entity Google entity Scope of Work
no:
1 HTML Google Asia Pacific KORMO EARLY ACCESS AND CO-MARKETING
(shine.com) Pte Ltd.   AGREEMENT - Marketing Activities may include live
events and experiential marketing, social media promotion,
digital advertising, in-app promotion, and traditional
offline advertising
2 HTMSL Google Ireland HT and Google are parties to the Sound Recording and
Limited and Audiovisual Content License agreement
Google Commerce
Ltd.
3 HTDSL Google LLC USA WEB STORIES AGREEMENT -  HT will publish the web
stories from the domains:
1. livehindustan.com - 7 stories per week in Hindi
2. hindustantimes.com - 3 stories per week in English

4 HTDSL Google Asia Pacific Analytics 360: Analytics 360 Service collects Customer Data
Pte. Ltd. from Properties at an Uptime Percentage of at least 99.9%.
5 HTDSL Google LLC USA CURATED NEWS AGREEMENT - A modular feature of
Google News (and appearing on other Google products
and services) allowing publishers to curate and showcase
content to Users, whatever the service may be called by
Google.