Background
On 17 April 2019, the Directive on Copyright in the Digital Single Market (EUCD) was adopted. One of its key new provisions, Article 15, addresses declining revenues in the press sector by tackling the challenges press publishers face in controlling uses of their content by various online platforms.
The new right, which is only accessible to press publishers established within the EU, grants publishers the authority to license the online usage of their press publications to information society service providers. The right, however, does not cover linking, individual words or “very short” extracts (the A15 Exceptions).
France was the first EU country to transpose Article 15. The national text (the 2019 Law) borrows from a recital of the EUCD to provide that the A15 Exceptions “cannot affect the effectiveness of the rights provided for”. The text further provides that “this effectiveness is notably affected when the use of very short extracts substitutes for the press publication itself or dispenses the reader from referring to it”. Neither what constitutes a hyperlink nor what qualifies as a ‘very short extract’ has been defined by EU or French law. Instead, these definitions are subject to interpretation by the courts.
To assist publishers’ negotiations, the 2019 Law obliges online services to provide press publishers “with all the information regarding the use of press publications by their users, as well as all other necessary information for a transparent assessment of their remuneration” (the 2019 Law Information Requirement). This obligation, absent from the EUCD but added by France to supplement it, is central to the most recent decision of the French Competition Authority (the Authority) in the context of an ongoing dispute between Google and French publishers over the use of their news.
A battle of snippets and thumbnails
By default, most online services aggregating news show hyperlinks to third-party content using a snippet of text and a thumbnail image from the source publication. Whether the use of a brief snippet and a thumbnail image falls under or outside the scope of the A15 Exceptions has been the subject of speculation and largely hinges on whether a court would find that these uses meet the threshold of the EUCD and national law transposing the same.
At the centre of this snippet and thumbnail storm is Google, the internet giant which has long been opposed to paying for merely linking to content online. Further to the adoption of the 2019 Law, Google announced that it would not enter into negotiations with publishers, proposing instead a free licence or to accept that only bare hyperlinks – without any snippets or thumbnails – would be displayed in search results.
In 2020, several unions representing French press publishers1 filed a complaint with the French Competition Authority (the Authority) accusing Google of anticompetitive practices for failing to properly engage with them in negotiations notwithstanding the adoption of the 2019 Law. The Authority found that Google was abusing its power in the market for internet search services and ordered Google to engage in good faith negotiations with press publishers for the use of their publications (the First Injunction). The decision was later upheld on appeal.
In July 2021, the Authority found that its First Injunction had not been respected, resulting in a €500 million penalty and Google was ordered to adhere to the it under a daily penalty (the Second Injunction). In its decision, the Authority addressed the scope of Article 15 by explicitly rejecting the notion that Article 15 Exceptions can be applied systematically and automatically to Google products “as a matter of principle”,2 a bold move for an Authority that is not competent to decide copyright matters.
On 21 June 2022, the Authority ruled on the merits of the case and accepted Google’s proposed list of seven commitments (the Commitments) – including a commitment to comply with the 2019 Law Information Requirement – over a five-year period, renewable once, aimed at mitigating the Authority’s competition concerns (the 2022 Decision).
In its most recent decision of 15 March 2024 (the 2024 Decision), the Authority found that Google failed to adhere to certain of its Commitments, resulting in a new €250 million fine. The Authority considered in particular that Google failed to (i) engage in good faith negotiation, based on transparent, objective and non-discriminatory criteria, within the allocated timeframe (as provided for under Commitment n°1), (ii) provide sufficient information to press publishers (as provided for under Commitment n°2), and (iii) implement measures to prevent negotiations relating to Article 15 from affecting other existing economic relationships between the parties (as provided for under Commitment n°6).
The Gemini problem
Some of the Commitments came under particular scrutiny following complaints to the Authority from press publishers alleging that their content had been used to train Gemini without their knowledge, a fact that they claimed would be in breach of Google’s Commitment n°1 “to negotiate on the basis of transparent criteria, reflecting all revenues stemming from the use of press publisher’s content including indirect revenues” and Commitment n°6 to “lead negotiations independently from any other economic relationship between the parties”.
The Authority investigated the allegations and came to the conclusion that Gemini had been trained using press publications during the term of the Commitments on the basis of (i) a questionnaire populated by Google indicating that Google trained Gemini’s predecessor, PaLM 2, using French press publications and (ii) outputs suggesting that Gemini had access to certain recent press publications. It is important to note that the Authority has not been able to determine whether the training took place in France or abroad.3
The Authority decided to sanction Google, mentioning Google’s Commitments n°1 and n°6 for (i) failing to disclose such use, (ii) failing to provide an opt-out mechanism before 2023 and (iii) allegedly disregarding publishers’ opt out. In substantiating its decision, the Authority noted that until the launch of Google-Extended in 2023, publishers wishing to oppose training by Gemini had to also oppose indexing of their content by Google, including on Search, Discovery and Google News, the latter being at the heart of the Article 15 related negotiations. It also raised concerns regarding the effectiveness of Google-Extended as an opt-out mechanism, particularly after discovering news outputs from a publisher that had supposedly ‘opted out’ in Gemini.
A controversial decision
From a copyright perspective, the Authority’s decision is controversial for two reasons. First, because it fails to establish the applicability of French law to the alleged training of Gemini despite contrasting levels of copyright protections when protected content is used in AI training around the world. Second, because it widens the 2019 Law Information Requirement to situations where the right of press publishers might be covered by a copyright exception and therefore not subject to their authorisation.
First, it is interesting to note the statement from the Authority according to which it wasn’t able to determine where the training of Gemini took place (see footnote no. 3). The Authority, however, doesn’t seem to draw any conclusion from it and goes on to discuss how Google breached its Commitments by not complying with the right of press publisher’s to opt out, a possibility that has been left to rightsholders by EU law, but which does not have an equivalent in other legal systems. By applying French law to activities which might have been conducted in a jurisdiction with a different copyright standard, the Authority is taking yet another leap into the copyright arena, a move that many will see as going above and beyond the Authority’s scope of competence.
Second, the Authority’s decision seemingly widens the 2019 Law Information Requirement to situations where the right of press publishers is covered by a copyright exception and therefore not subject to their authorisation, an obligation that is absent from the EUCD and that has just only emerged from the EU AI Act4, anticipated to come into effect in 2026. The impatience thereby signalled by the Authority has been welcomed by rightsholders but without a current legal basis to support it, it appears difficult to reconcile the decision with the principles of EU copyright law.
In a world of life-changing and fast-moving technological developments, the narrative of big tech making a living on the back of content holders is gaining considerable momentum and the launch of a sector consultation by the Authority into generative AI will only accelerate it.
- Syndicat des éditeurs de la presse magazine (SEPM), l’Alliance de la presse d’information générale (AGIP) and Agence France Presse (AFP).
- “Google cannot justify its unilateral and systematic position with regard to all press publishers and for all the content included in its search engine, by the fact that its display methods in the form of very short extracts (“snippet”) would, as a matter of principle, escape the scope of application of the 2019 law. Indeed, by turning the exception […] into a general principle, Google is likely to have subjected publishers and news agencies to unfair conditions by depriving them of the benefit of the 2019 law, whose useful effect it has neutralised.”
- “[…] without specifying, even though this information was explicitly requested, whether the press content originated from France or abroad”, para. 166, Decision 24-D-03 of 15 March 2024, available online.
- See article 53 of the current version of the EU AI Act
Client Alert 2024-074
