Imbalance of Power in the Copyright Tug-of-War between Press Publishers and Internet Service Providers: The Example of Poland’s implementation of Digital Single Market Directive

The rise of digital platforms like Google and Facebook has transformed the media landscape, allowing them to distribute press publishers’ content while often monetising it without fair compensation. To address this, the EU introduced the Digital Single Market Directive (DSM), aiming to ensure fair use and remuneration for publishers. However, Poland’s implementation of the DSM has faced significant hurdles, revealing the challenges in establishing effective secondary rights for publishers and enforcement mechanisms, argues Malgorzata Kozak.

Due to the rise of various online news services offered by digital platforms such as Google and Facebook, these platforms have become transmitters of content produced by press publishers. As a result, they can use content created by others without establishing a fair arrangement that includes appropriate remuneration. Furthermore, they monetise this content by attracting users and selling advertising services.

European Union legislators recognised these issues and sought to provide a solution by adopting the Digital Single Market Directive (DSM or EUCD).

The implementation and enforcement of the DSM by National Regulatory Authorities (NRAs) present significant challenges. The French Autorité de la Concurrence decisions demonstrated this. For the sake of completeness, it is necessary to mention that there is a pending proceedings by the CNMC (Spanish Competition Authority) and preliminary reference before the CJEU concerning the role of the Communications Regulatory Authority, AGCOM in the case C-797/23. More recently, Poland has provided another interesting example of this issue.

In this blog post, I explore the details of the implementation process in Poland and highlight the key problems that arose. I argue here (as we have written elsewhere) that the problem lies not in the substantive rules themselves but in the need to equip NRAs with the proper toolboxes, including authority and tools to effectively address these challenges.

Digital Single Market Directive

Article 15 of the DSM – which seems to be the most problematic one – grants publishers of press publications established in a Member State the rights provided under Article 2 and Article 3(2) of Directive 2001/29/EC for the online use of their press publications by information society service providers (ISSPs). This provision seeks to harmonise legal protections for press publications and strengthen publishers’ bargaining power regarding the online use of their content by ISSPs. Building on the framework of Directive 2001/29/EC, it establishes a related right covering the reproduction and making available press publications from publishers based in EU Member States for online use by ISSPs. This right is limited to the commercial use of publications by ISSPs for two years, excluding non-commercial use by individual users.

Further, Article 17 DSM frames the use of protected content by online content-sharing service providers. Under this article, giving the public access to copyright-protected works uploaded by the users must be considered as an act of communication (or of making it available) to the public, which requires authorisation of the rightsholders, for instance, by concluding a licensing agreement. Moreover, under Article 18 DSM, where authors and performers license or transfer their exclusive rights to exploit their works or other subject matter, they are entitled to receive appropriate and proportionate remuneration, taking into account the principle of contractual freedom and a fair balance of rights and interests. Last but not least, under Article 19 DSM, some transparency obligations are introduced, facilitating receiving on a regular basis of information by authors and performers on the exploitation of their works and performances. Those obligations must be proportionate and effective in ensuring high transparency in every sector. Finally, under Article 21, a voluntary, alternative dispute resolution procedure concerning transparency obligation may be introduced.

DSM Implementation Process in Poland

At the beginning of July 2024, all major media outlets in Poland took a stand by displaying black stripes with white letters dramatically stating: “Politicians! Do not kill Polish Media!” This coordinated action addressed the critical issues surrounding the implementation of the DSM, especially Article 15. Poland was already behind (understatement) in implementing the DSM. Thus, the lower chamber of the Polish Parliament amended copyright law to introduce a new exclusive right for press publishers. This right allows publishers to exclusively exploit their online publications and receive remuneration from platforms like Google, Meta, and Microsoft. In order to enforce it, publishers and global Big Tech corporations must negotiate the terms and amounts independently, either directly or through collective management organisations . Despite calls from publishers’ associations, no additional instruments to support the bargaining position of press publishers against Big Tech companies were included.

The lower chamber left out three crucial amendments proposed by publishers’ associations, namely (1) Enabling the Polish Competition Authority – Office of Competition and Consumer Protection (PCA) to mediate if negotiations stall for more than three months, and potentially set obligatory remuneration conditions if no agreement is reached; (2) Requiring Big Tech to provide data necessary for determining remuneration; and (3) Clarifying when publishers are entitled to remuneration from Big Tech.

The bill then moved to the Senate (the upper chamber), and at first, it seemed that no additional changes would be made. Only after another extensive media campaign did the Prime Minister meet with press publishers’ associations and promise to consider their postulates. As a result, the law introduced a process for determining compensation for publishers, with the possibility of intervention by the President of the Office of Electronic Communications (UKE) if an agreement is not reached. Initially, it was proposed that the Polish Competition Authority (PCA) is a competent authority. However, the PCA considered that it lacked the instruments to carry out this task.

The reaction by Meta and Google

However, what is interesting is to observe the reaction of Meta and Google. It was reported that Google has written a letter to Senators. In this letter (my own translation), they state:

“In recent weeks, publishers, leveraging their privileged access to the media, are constructing a false narrative about the negative role that Google and other platforms allegedly play in the media ecosystem. They are threatening, among other things, the imminent bankruptcy of Polish publishers if the legislature does not meet their demands”.

Finally, referring to the proposal to introduce arbitration by the PCA, Google writes:

“We caution against the hasty adoption of regulations that, while seemingly improving the position of publishers, may prevent us from entering into licensing agreements, as has happened in, among other places, the Czech Republic, where, due to an implementation exceeding the legal framework of the Directive, we were forced to remove short excerpts of publishers’ content from search results and close already functioning licensing programs”.

Moreover, there have been reports that Facebook was removing publishers’ posts about the second protest. This action applied especially to smaller and local media, and their posts on Facebook were disappearing.

But, it is not the end of the story. In September 2024, after the law was promulgated and entered into force as Poland’s amended Copyright and Related Rights Act, posts from Polish media outlets on Facebook appeared differently—showing only headlines and links without the familiar large images. This also affects their content. As pointed out by Spider’s Web, an independent blog platform on new technologies and lifestyle, this was not a technical issue but a conscious decision by Facebook. It is confirmed in Facebook Help Centre, where Meta explains (original text):

“The European Union Copyright Directive (EUCD) causes EU member states to create rules for how platforms can display previews of certain news articles. When someone other than the press publisher shares an article from a news site, it may display as a link without images or text from the article. Please note that EU member state countries have different rules which impact how people see news content or links.

While Article 15 of EUCD does not apply to private or non-commercial uses of press publications by individual users or in respect of the use of individual words or very short extracts of a press publication, in order to respect the Article 15 principle of publisher control, Facebook has decided to voluntarily change the way some news links are shared in selected jurisdictions – for example as a headline and hyperlink only – unless the press publisher grants us a licence to display them as we do now, which may include rich rendering based on meta tag designations”.

Spider’s Web suggests that Facebook’s decision to limit the display of images could be interpreted as an attempt to weaken publishers’ positions in the upcoming negotiations. This change may result in reduced visibility and reach for media content.

Conclusion

In conclusion, the implementation of the DSM in Poland highlights the ongoing imbalance of power between press publishers and ISSPs, specifically tech giants like Google and Meta. The DSM aims to address this by granting press publishers rights over their content, but the effectiveness of these measures remains limited without solid enforcement mechanisms and regulatory support. It shows the need for effective public mediation mechanisms focusing on fair remuneration and transparency about the content displayed by ISSPs. It also shows that publishers and ISSPs have different interests, which is especially relevant when so-called zero-click research becomes increasingly popular. As a result, the majority of readers do not get to the original page with news staying in the browser, which means losses of readership for those who created the content. The question is – in the long perspective – who will create the content if creators will not be able to get fair remuneration for it.

As reported by Spider’s Web on 18^th October 2024, the Polish Competition Authority has initiated an inquiry into Facebook’s decision to block link previews in posts, suspecting a possible abuse of market dominance. According to Presserwis.pl, the PCA  sent letters to Polish media publishers asking about the impact of Facebook’s decision on their operations, including whether Meta had adequately explained its actions or engaged in negotiations under the amended copyright law. The inquiry was prompted by complaints from media outlets like the Polish Chamber of Press Publishers, which reported significant reductions in content reach. A Mediapanel PBI/Gemius study revealed that major Polish news websites experienced a 31.1% drop in social media traffic between late August and late September. Local publishers, lacking the means to independently challenge Meta, have been particularly affected by this decline.

The author used ChatGPT to edit this blogpost.