Draft code seeks to balance bargaining power

August 18, 2020

On 31 July, the Australian Competition and Consumer Commission (ACCC) released draft legislation for a code on negotiations between digital platforms and media companies. You can see the ACCC’s media release here, and Q&As here.

The aim of the code is to redress the imbalance in bargaining power between media companies and digital platforms (currently Google and Facebook), and to ensure that the latter pay for their use of valuable news media content. This will contribute to supporting journalism, civic society and democracy.

The draft code enables media companies, individually or collectively, to institute a mediation and then an arbitration process known as ‘final offer arbitration’. The factors to be taken into account in the arbitration are: direct and indirect benefits of news content to the platform, costs of producing news content, and whether a payment amount would be unduly burdensome for the platform.

The ACCC can make submissions to the arbitrator or arbitrators (there can be three), as well as the parties. There would be significant penalties for breaches of the code by a platform.

The ACCC has also published the submissions on its Concepts Paper about the code. You can see the submissions, include Copyright Agency’s, here. Copyright Agency will be making a submission on the draft code, in consultation with relevant members and other stakeholders.

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