The changing habits of the information seekers to internet search engines call for an intervention by the Government as a watchdog to ensure fair play between the content provider and the Big Tech and Meta. In 2022, nearly 99,000 search queries were processed by Google itself every second across the globe. The range of information is spread across varied subjects besides just news. The backend for this search engine includes thumbnails, headlines and snippets from the content provider.
The two important actors to collate and disseminate the content to the seeker with the spread of the internet is the publisher and intermediary. It is important to understand the legal positioning of these two players in India and their B2B arrangements of sharing the content.
The issue on table is then the B2B commercial relationship between the content supplier (Publisher) and these big tech .and Meta that do wider spread of the content through their algorithm of search engines.
For the publisher it is infringing the content (collected, collated, verified and brought in print –either in print or electronic format) by providing the snippets and thus users do not click on the website link of the publisher. Data shows 65% of search concludes in the intermediary platform itself. Thus the Intermediary (Big Tech) search is no longer just providing the index but an intelligent and comprehensive engine using AI (artificial intelligence) enables to context the search queries providing a good filter to provide near accurate results. That brings the issue of the big tech to pay for use of the ‘content’.
This issue has raised concern across the globe. Attempt across the globe is by bringing in new legislation /regulation/directive/rules to define publisher, intermediary, power to make rules, arbitration provision, arbitration process, mandatory registration for publishers etc. The comprehensive Information Technology Act 2000, already has the legal provisions for all of the above. The possible solution therefore is to immediately amend the rules to make it mandatory for the Big Tech to pay for the use of content provided by publishers big or small. Negotiations can be done individually by publishers or collectively. The oversight by the Government Controller to ensure fair play and flag mandate for grievance redressed and arbitration and appellate provision already in the act.
Under the rules, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 the same rules can further be expanded as it controls the content to ensure that the publisher i.e. the content gather gets their due for usage by the curator/aggregator who is the intermediary.
Thus the IT Act 2000, which other countries are attempting by bringing out the new legislation discussed above, already empowers the Government to issue the rule amendment to the rule and issue like EU has issued the directive subsequently France as protecting copyright and rights of content provider.
The content provider—publisher has been defined and covered in the amendment to rule under IT Act 2000 as listed above. Subsequently it can be incorporated in the proposed all comprehensive Digital Bill. The rule amendment needs to have proviso to be:
1. Enabler to the Government to regulate that the Big Tech platforms do negotiate with publishers and have B2B written agreements for revenue share. Government to have tools to monitor and if needed force the negotiations.
2. Good Faith Business for The Digital Platform shall mandatorily enter into negotiations and if an agreement is reached then both parties to notify the nodal appointed for the purpose.
3. To permit bargaining by individual, company or collective mechanisms and monitor that the publishers large and small get a fair deal. to collectively negotiate with large online platforms over the terms and conditions of the platforms’ use of content.
4. The provision to ensure that providers do not violate federal antitrust laws when they negotiate with large online platforms or withhold content from large online platforms.
5. The rule to prohibit platforms from retaliating against providers for participating in collective negotiations or arbitration authorized by blocking their site.
6. To have B2B relationship for use of content that is with the publishers as share of revenue and compensation to the injury caused due to fall of revenue.
7. Big Tech and Meta the intermediary to have transparent and fair mechanisms for revenue sharing.
8. Flag the proviso in the main act To have the mechanism of grievance redressal.
9. Similarly flag the proviso of adjudicating , arbitration and appellate
Need is therefore to immediately bring in the amendment to the rule to stop the injury to Publisher and monopolistic activity of the Big Tech. under the existing Information Technology Act 2000 (amended in 2008) sec 87 to ensure that the Beg Tech and Meta do not take advantage of content producer and owner –namely the Publishers.
That is the urgency. This eventually becomes part of the comprehensive proposed all comprehensive The Digital Act.
That the views expressed in this article is of author’s and the HT Digital Streams is not responsible for the views, arguments and the issues raised in this piece.
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