Goog­le has laun­ched ano­ther attempt to acqui­re press publishers’ rights en mas­se from publishers in Ger­ma­ny and Euro­pe for abu­si­ve­ly low pay­ments. To this end, publishers sel­ec­ted by Goog­le are curr­ent­ly being writ­ten to and asked to con­clude con­tracts in an online tool for the use of press publishers’ rights by Goog­le. The­se so-cal­led “Exten­ded News Pre­views Agree­ments” are pri­ced at extre­me­ly low levels, but grant Goog­le a com­pre­hen­si­ve grant of rights that pre­cludes fur­ther licen­sing of the neigh­bou­ring rights in favor of press publishers and their jour­na­lists. The cal­cu­la­ti­on on which the remu­ne­ra­ti­on for the ENP con­tracts is based is known to Corint Media. It is reco­gniz­ab­ly abu­si­ve and in no way reflects the rights hol­ders’ par­ti­ci­pa­ti­on in the “pecu­nia­ry bene­fits” of the user Goog­le, as requi­red by the Ger­man Coll­ec­ting Socie­ties Act. Ins­tead of taking the­se actu­al mone­ta­ry bene­fits that Goog­le recei­ves from the use of press con­tent as a basis, Goog­le only wants to pass on a sin­gle-digit per­cen­ta­ge to the publishers, based on arti­fi­ci­al­ly under­sta­ted reve­nues that it ear­ns from the direct dis­play of press con­tent. To be on the safe side, Goog­le wants to “make the data used for this available its­elf”. As a domi­nant com­pa­ny, set­ting your own pri­ces for the use of a key com­mo­di­ty – in this case, the usa­ge rights of press publishers and jour­na­lists – seems far remo­ved from the law that appli­es to ever­yo­ne.

At the end of last year, the Ger­man Fede­ral Car­tel Office clas­si­fied Goog­le and its parent com­pa­ny Alpha­bet as com­pa­nies with “out­stan­ding cross-mar­ket signi­fi­can­ce” and thus pla­ced them under the super­vi­si­on of the new Sec­tion 19a of the ARC, which is inten­ded to ensu­re more effec­ti­ve inter­ven­ti­on, par­ti­cu­lar­ly against beha­vi­or by lar­ge digi­tal groups. In addi­ti­on, the Ger­man Fede­ral Car­tel Office is curr­ent­ly con­duc­ting an inves­ti­ga­ti­on into Google’s hand­ling of Ger­man press publishers’ rights, among other things due to alle­ga­ti­ons of self-pre­fe­rence.

The sum of pay­ments to be dis­tri­bu­ted among seve­ral thousand Ger­man rights hol­ders under ENP is esti­ma­ted by Corint Media at around 10 mil­li­on euros. By com­pa­ri­son, in the Aus­tra­li­an mar­ket, which is about one-third the size of the Ger­man mar­ket, Goog­le had paid up to 100 mil­li­on euros to publishers due to stric­ter legal rules. The cur­rent push to offer publishers indi­vi­du­al ENP con­tracts shows Google’s abu­si­ve­ness. In the past, the com­pa­ny had alre­a­dy offe­red a num­ber of sel­ec­ted publishers hig­her-pay­ing con­tracts for socal­led “Goog­le News Show­ca­ses” and addi­tio­nal­ly pushed the so-cal­led “ENP” con­tracts. The joint con­clu­si­on of the­se con­tracts was sup­po­sedly attrac­ti­ve for some publishers, even though the pay­ments for them are signi­fi­cant­ly lower than the value of the press publishers’ rights. Now Goog­le seems to be inte­res­ted in offe­ring “ENP con­tracts” to the rest of all publishers, a sub­or­di­na­te group pro­ba­b­ly from the company’s point of view, for safety’s sake, the amount of which is sup­po­sed to be bet­ween 10 and 15 per­cent of the remu­ne­ra­ti­on for Goog­le News Show­ca­se. Publishers who refu­se to enter into ENP con­tracts as part of this approach will be dis­play­ed by Goog­le unch­an­ged, even wit­hout the con­clu­si­on of a licen­se, albeit wit­hout any con­trac­tu­al basis, alt­hough Goog­le will con­ti­nue to use them ille­gal­ly.

With this approach, Goog­le is attemp­ting on the one hand to keep the value of the press publishers’ right to a mini­mum via ENP agree­ments to be con­cluded with as many publishers as pos­si­ble in Euro­pe and to achie­ve legal cer­tain­ty. At the same time, the legal­ly ancho­red regu­la­ti­on that jour­na­lists are to par­ti­ci­pa­te with one third of the reve­nues from the press publishers’ right runs into the void.

Mar­kus Run­de and Chris­toph Schwennicke, Mana­ging Direc­tors Corint Media:“The plan­ned mass and rapid coll­ec­tion of licen­ses at dum­ping pri­ces is a fur­ther escala­ti­on stage now igni­ted by Goog­le in the dis­pu­te bet­ween the digi­tal plat­forms and press publishers. Ins­tead of nego­tia­ting appro­pria­te remu­ne­ra­ti­on for the use of press con­tent with the coll­ec­ting socie­ties and indi­vi­du­al publishers at uni­form pri­ces and con­di­ti­ons, Goog­le is again try­ing to set a pri­ce for the publishers’ rights that is fixed on its own and abu­ses the mar­ket. This is unpre­ce­den­ted in copy­right law and in a mar­ket eco­no­my, in a sta­te gover­ned by the rule of law with its pro­mi­se of equal tre­at­ment: a com­pa­ny with 93% mar­ket share deci­des sin­gle-han­dedly and unre­gu­la­ted whe­ther and how much it will pay con­tent pro­vi­ders. That’s like a car manu­fac­tu­rer with a mono­po­ly wan­ting to deci­de that it will only pay three euros for trans­mis­si­ons from now on. And if the sup­pli­er refu­ses, the trans­mis­si­ons will still be taken from the trans­mis­si­on manufacturer’s yard every night wit­hout con­sent. The mar­ket fail­ure that has long exis­ted in the rela­ti­onship bet­ween con­tent pro­vi­ders and digi­tal plat­forms will quick­ly beco­me a sta­te fail­ure if the spe­ci­al­ly crea­ted copy­right and anti­trust laws are not appli­ed. We can only warn press publishers against allo­wing rights to their con­tent, the heart of their busi­ness, to be bought for glass beads.”