Publishing Rights in Online Use Recent Developments
Digital technologies continue to influence and transform the printed publication industry, much like their impact in various other sectors. Within this scope, the European Union (“EU) adopted the Directive on Copyright in the Digital Single Market (“the Directive”) to improve copyright laws to better address the challenges arising from the complexities brought by the digital environment.
The Directive, as we reported in our articles published in previous years[1], brings improvements regarding the right of content creators to enter into licensing agreements for the online use of their content as well as their right to fair remuneration, and has been the subject of various debates. In fact, EU member states have made the necessary arrangements in their national laws as of the current situation.[2] However, in the five years since the adoption of the Directive, it has become evident that establishing a uniform perspective and practice across the EU will take time. Additionally, through legislative efforts concerning digital copyright regulations, countries like Australia[3] and Canada[4] have implemented systems where technology companies can only use content in the online environment by making the required payments to the rights holders,. While legal regulations have been progressing as such, in practice, it has been observed that industry players continue to negotiate with rights holders.[5] As a matter of fact, according to the studies[6], Google’s total advertising revenue from information searches using the content of media publishers is USD 21 billion, and it is estimated that approximately USD 3.8 billion of Meta’s advertising revenue in the US is generated through news content on Facebook.
However, these negotiations do not always lead to successful outcomes, and in some countries, companies like Google or Meta may face fines. For example, the French Competition Authority fined Google €250 million for failing to honor commitments it had previously made in relation to press rights. This is the fourth decision in four years on France's national law adopted in 2019 under the Directive, which aims to ensure a balanced sharing of value between the press industry and digital platforms, with total fines totaling around €750 million.[7]
While there is not yet a common understanding of how the Directive is to be applied, there are pending cases before the Court of Justice of the European Union concerning the interpretation of the Directive. Notable among these cases are ONB and Others[8] concerning copyright exploitation contracts, Streamz and Others[9] dealing with fair remuneration of authors and performers on online streaming platforms and Austro-Mechana[10] discussing the scope of Article 17.
On the other hand, advancements in the field of artificial intelligence (“AI”) also bring along new disputes regarding content ownership and copyrights in the interactions between news agencies, journalists, and AI companies. Indeed, the data employed to train AI algorithms often encompasses substantial amounts of text, news, and content, leading to ongoing disputes over copyright issues related to this content. For instance, The New York Times filed a court action against OpenAI and Microsoft, alleging unauthorized use of their content and asserting violations of their copyrights. [11] Despite arguments from the AI companies that the data used for training the algorithm should fall under fair use, the final determination on such matters will be shaped by court decisions in these cases.
In Türkiye, it is often argued that current copyright regulations do not meet the demands of the age and that there is a need for legislative reform in this area to regulate copyrights in digital media. While a final legislative process has not yet been reached, work on a draft law addressing copyrights related to the use of publishers' content on digital platforms under the Digital Copyright Law is progressing swiftly. [12]
The Turkish Grand National Assembly Commission on Digital Media (“Commission”) states that discussions on the “Digital Copyright Law” are ongoing with the General Directorate of Copyright of the Ministry of Culture and Tourism, the Turkish Grand National Assembly, Anadolu Agency and other stakeholders. Indeed, over the past year, the Commission has also held meetings with Google officials and discussed the digital copyright agenda together. [13] The Chairman of the Commission states[14] that the preparations for the draft legislation have been completed and the issue is ready to be brought to the parliamentary agenda, indicating that concrete steps will be taken in terms of the relevant law.